Atlantic Marine v Min for Transport: Code of Conduct didn’t raise legitimate expectation that State would enforce it

Here, the Supreme Court held that the State’s promulgation of a Code of Conduct for the fitting of life rafts on fishing vessels did not give rise to a legitimate expectation that the State would enforce the Code. Therefore, Atlantic Marine (a supplier of marine safety equipment) could not use the State’s failure to enforce the Code as a basis for a claim for loss of sales of life rafts.

Background

In 2004, the Department of Transport introduced a Code of Conduct for the design, construction and operation of small fishing vessels. Clause 7 of that Code addressed the standard of life rafts which ought to be fitted. In 2003 the Maritime Safety Directorate issued a Marine Notice on the voluntary carriage of life rafts on small fishing vessels. In 2005, the Department of the Marine issued Marine Notice No 2, to remind skippers of the Code’s recommendations on life rafts.

However, aside from the Code having no statutory footing, there was some ambiguity between the three statements on the standard of equipment recommended for certain sized vessels. In 2006, the Sea Fisheries and Maritime Jurisdiction Act 2006 provided that a fishing vessel’s licence could not be renewed unless the vessel complied with the requirements of the Code.

In 2008, Atlantic issued High Court proceedings claiming that the State had breached a legitimate expectation that it would enforce the Code, and that Atlantic had suffered a loss of sales (and profit) due to the State’s breach. In the High Court, the trial judge held that the Minister adopted a position which amounted to an implied representation that only fishing vessels that complied with the Code would be licenced; that that representation was made to an identified group of people, including Atlantic. But the trial judge found that the Minister did not breach Atlantic’s legitimate expectation of reasonable enforcement. The trial judge made no order for costs.

Although the High Court dismissed Atlantic’s proceedings against the State, the State appealed to the Supreme Court against the trial judge’s finding of legitimate expectation. Atlantic resisted the appeal and cross appealed against the trial judge’s decision not to award it a costs ordereven though it lost the case.

In the Supreme Court, O’Donnell J held that the promulgation of the Code could not give rise on a legitimate expectation of enforcement, as the Code was voluntary until the enactment of the 2006 Act. And the Executive’s obligation to enforce the 2006 Act derives from the Constitution, not from a concept of legitimate expectation. Furthermore, O’Donnell J stated that it is “at a minimum, unlikely that the enactment of legislation which itself does not give rise to a right to sue for breach of statutory duty, could nevertheless give rise to a legitimate expectation sounding in damages in the same group”. He also stated the view that the justice of the case may be met by the State making a modest contribution towards Atlantic’s costs.

Denham CJ, McKechnie J, MacMenamin J, Laffoy J, Dunne J and O’Malley J all concurred.

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