Application of Oshawa Ltd

• Jurisdiction: Ireland
• Judge: O'FLAHERTY J.,McCarthy J.
• Judgment Date: 08 July 1992
• Neutral Citation: 1992 WJSC-SC 2671
• Court: Supreme Court
• Docket Number: [S.C. No. 347 of 1989]
• Date: 08 July 1992

1992 WJSC-SC 2671

THE SUPREME COURT

McCarthy J.

O'Flaherty J.

Egan J.

347/89

OSHAWA

IN THE MATTER OF THE COURTS OF JUSTICE ACT 1936, S. 38

AND IN THE MATTER OF THE LICENSING ACTS 1833 TO 1983,SECTION 6 OF THE LICENSING (IRELAND) ACT 1902, AS AMENDED BY THEINTOXICATING LIQUOR ACT, 1960S. 24

AND IN THE MATTER OF AN APPLICATION OF OSHAWALIMITED

Citations:

LICENSING (IRL) ACT 1902 S6

COURTS OF JUSTICE ACT 1936 S38(3)

INTOXICATING LIQUOR ACT 1960 S24

LICENSING (IRL) ACT 1833 S5

INTOXICATING LIQUOR ACT 1960 S19

KENNEDY, R V ANTRIM JUSTICES 1903 2 IR 671

Synopsis:

LICENSING ACTS

Licence

Extinguishment - Date - New Licence - Issue - Condition - Old licence - Extinguishment - Old licence extinguished when new licence issued - Unlicensed premises adjoining licensed premises - Extension of licence - Licensing (Ireland) Act, 1902, ss. 4, 6 - (347/89 - Supreme Court - 8/7/92) - [1992] 2 I.R. 425

|Application of Oshawa Ltd.|

1 Judgment of McCarthy J.delivered the 8th day of June, 1992.

2 I have read the judgment of O'Flaherty J.; I agree with his conclusion as to the answer to be given to the case stated.

3 I reserve for another occasion the question as to whether or not Section 6 of the 1902 Act is necessarily limited to cases where the premises attached to or adjoining premises licensed for the sale of intoxicating liquor at the relevant time are themselves unlicensed.

4 JUDGMENT delivered on the 8th day of July 1992by O'FLAHERTY J. [Egan J. Concurring.]

5 This is a case stated by Miss Justice Carroll pursuant to the provisions of s. 38(3) of the Courts of Justice Act, 1936.

6 The case recites that Oshawa Limited ("the applicant") applied to the Cork Circuit Court pursuant to s. 6 of the Licensing (Ireland) Act, 1902, as amended by s. 24 of the Intoxicating Liquor Act, 1960, for a certificate entitling it to receive a publican's 7-day on-licence for the sale of intoxicating liquor by retail on the premises known as "Nosey Parkers" situate at Nos. 1 and 2, CourthouseStreet,Cork. The notice of application set out that the applicant intended to apply to the Circuit Court to receive a full ordinary 7-day on-licence in respect of the premises "Nosey Parkers" which comprised firstly the existing licensed premises formerly known as the Courthouse Tavern at Courthouse Street, Cork, and secondly the premises attached and adjoining thereto and formerly known as the Bailey Bar, Courthouse Street, Cork. It was set out that the said new licence applied for was to be in extinguishment of the licence then attached to the premises formerly known as The Courthouse Tavern.

7 The certificate sought for was granted in the Circuit Court notwithstanding the objections of members of the Cork LicensedVintners" Association ("the objectors/appellants") who then appealed to the High Court. As well as granting the certificate the learned Circuit Court judge made an order that the ordinary publican's licence in the name of the applicant at 2 Courthouse Street, Cork beextinguished.

8 At this stage it is important to interpolate some additional facts which were not set out in the course of the case stated but which were put before us, by agreement of the parties, as it was submitted that these were matters of record which should properly be received. It appears they were also put before the learned High Court judge. In passing, I would point out that the parties in preparing the draft of a case stated should make sure to set out all the facts, including matters of record, as comprehensibly as possible.

9 To put the matter further in context I think I should set forth the terms of s. 6 of the 1902 Act, as amended by s. 24 of the Intoxicating Liquor Act, 1960, and as adapted to take account of modern developments such as the jurisdiction that was transferred to the Circuit Court and so forth. It provides as follows:-

10 Nothing in this Act shall operate to prevent the granting of new licences, where the licensing authority thinks fit, to premises attached to or adjoining premises licensed for the sale ofintoxicating liquor at any time during the period of five years immediately before the day on which notice of an application for the grant of a certificate entitling the holder thereof to receive any such new licence is given, pursuant to rules of Court, to the appropriate County Registrar or to the appropriate District Court Clerk, as the case may be: Provided always, that such new licence as last hereinbefore mentioned shall only be granted in order to render the said licensed premises more suitable for the business carried on therein.

11 Clearly what the section was intended to deal with were structural alterations which are brought about by taking in adjoining premises and with the necessary implication that the adjoining premises are unlicensed. It will be clear, too, that the concept of what is the "licensing authority" is not confined to one forum. The Court has its function to receive evidence and to grant a certificate entitling an applicant to get a new licence; the next stage is that the County Registrar issues a certificate (cf. s. 5 of the Licensing (Ireland) Act, 1833) and it is then for the Customs and Excise Department of the RevenueCommissioners to issue the actual licence.

12 The applicant's case was heard in the Circuit Court on the 1st December, 1987, when the Court ordered that the ordinary publican's licence in respect of what had formerly been the Courthouse Tavern should be extinguished and that the applicant was entitled to a certificate entitling it to obtain a new certificate. 1

13 The County Registrar issued the appropriate certificate on the 4th February, 1988, and on the 16th February, 1988, the Customs and Excise Department of the Revenue Commissioners granted the new licence to theapplicant.

14 At the same sitting of the Circuit Court on the 1st...