Cafolla v O'Malley & Ag

• Jurisdiction: Ireland
• Judge: FINLAY C.J.
• Judgment Date: 01 January 1986
• Neutral Citation: 1985 WJSC-SC 1825
• Court: Supreme Court
• Docket Number: [1983 No. 1065P]
• Date: 01 January 1986

1985 WJSC-SC 1825

THE SUPREME COURT

Finlay C.J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

140/85

CAFOLLA v. O'MALLEY & AG

BETWEEN

DOMENICO CAFOLLA

Plaintiff

and

THOMAS C. O'MALLEY and THE ATTORNEY GENERAL AND IRELAND

Respondents

Citations:

CONSTITUTION ART 34.4.5

CONSTITUTION ART 40

CONSTITUTION ART 40.3

DPP V FLANAGAN 1979 IR 265, 114 ILTR 34

FINANCE ACT 1975

GAMING & LOTTERIES ACT 1956 PART III

GAMING & LOTTERIES ACT 1956 S10

GAMING & LOTTERIES ACT 1956 S12

GAMING & LOTTERIES ACT 1956 S13

GAMING & LOTTERIES ACT 1956 S14

GAMING & LOTTERIES ACT 1956 S14(b)

GAMING & LOTTERIES ACT 1956 S14(d)

GAMING & LOTTERIES ACT 1956 S15

GAMING & LOTTERIES ACT 1956 S19

GAMING & LOTTERIES ACT 1956 S4(1)

GAMING & LOTTERIES ACT 1956 S4(1)(c)

GAMING & LOTTERIES ACT 1970

GAMING & LOTTERIES ACT 1979 .

GAMING & LOTTERIES ACT 1979 S1

PRIVATE MOTORISTS PROVIDENT SOCIETY & MOORE V AG 1984 ILRM 88 1984 IR 339

Synopsis:

CONSTITUTION

Statute

Validity - Gaming machines - Proprietor - Personal rights - Right to earn livelihood - Act of 1956 restricting player's stake to two and a half pence - Subsequent 950% increase in cost of living - Original stake restriction unaltered - Validity of enactment not affected - Exigencies of the common good - Decision of Costello J. (22/5/85) affirmed - (140/85 - Supreme Court - 19/11/85).

|Caffolla v. O'Malley|

CONSTITUTION

Statute

Validity - Gaming machines - Proprietor - Personal rights - Right to earn livelihood - Act of 1956 restricting player's stake to two and a half pence - Subsequent 950% increase in cost of living - Original stake restriction unaltered - Validity of enactment not affected - Exigencies of the common good - Decision of Costello J. (22/5/85) affirmed - (140/85 - Supreme Court - 19/11/85).

|Caffolla v. O'Malley|

GAMING & LOTTERIES

Statute

Validity - Gaming machines - Proprietor - Personal rights - Right to earn livelihood - Act of 1956 restricting player's stake to two and a half pence - Subsequent 950% increase in cost of living - Original stake restriction unaltered - Validity of enactment not affected - Exigencies of the common good - Decision of Costello J. (22/5/85) affirmed - (140/85 - Supreme Court - 19/11/85).

|Cafolla v. O'Malley|

1 JUDGMENT OF THE COURT delivered pursuant to Article 34.4.5 of the Constitution on the 19th day of November 1985 by FINLAY C.J.

2 This is an appeal by the Plaintiff against the Order of the High Court dated the 22nd May 1985 made by Costello J. dismissing his claim against the Defendants for a declaration that the provisions of section 14(b) and section 14(d) of the Gaming and Lotteries Act 1956(the Act of 1956 are inconsistent with the Constitution and for ancillary declarations and relief.

The facts

3 The only evidence adduced at the hearing was evidence tendered on behalf of the Plaintiff by an actuary setting out changes in the value of money which had occurred between 1956 and the present and setting out details of certain other charges and impositions which had occurred during that time. Otherwise the facts upon which the decision of the learned trial Judge was based are the facts set out in the Statement of Claim filed on behalf of the Plaintiff and admitted or not denied in the Defence filed on behalf of the Defendants.

4 Those facts may thus be summarised. The Plaintiff has been since 1963 the proprietor of an amusement hall in O'Connell Street, Dublin, in which inter alia he has carried on the business of operating gaming machines within the meaning of the Act of 1956 as amended. He has since that time obtained each year a certificate from the District Court pursuant to section 15 of the Act of 1956 and a consequential excise licence pursuant to section 19 of that Act in respect of the gaming activities carried on in that hall to which those provisions from time to time applied.

5 Between 1956 and 1984 the Consumer Price Index has increased by 950 per cent. During the same approximate period the cost of wages; rates; lighting and heating charges and telephone charges have all increased by figures above and in some instances significantly above that percentage increase.

6 The excise duty under section 19 of the 1956 Act has been increased from £40 in 1963 to £300 at present. 3y virtue of the Finance Act 1975an excise duty of £50 per annum was imposed in respect of each gaming machine coming within the provisions of Part III of the Act of 1956. This duty has been increased by subsequent Finance Acts and now stands at £300.

7 In 1956 the number of licences granted under Part III of the Act of 1956 was 82; in 1975 the number was 175; in 1982 in was 394. The restriction of the stake in any game the subject matter of Part III of the Act to 2½p in decimal currency and of the amount that may be won in each game to 50p in decimal currency imposed by section 14 of the Act of 1956 as adapted to decimal currency remains unaltered.

8 On these facts the learned trial Judge came to the following conclusions.

9 1. The Plaintiff had not established that by reason of those facts he had been deprived of his livelihood.

10 2. The failure to increase the limits imposed by section 14 has had an adverse affect on the profits to be derived from the business and the increase in outgoings and taxes, as well as the fall in the value of money, has meant that in real terms the restrictions on the Plaintiff's means of livelihood imposed by the 1956 Act are greater than they were when he commenced business.

11 3. The increase in the number of licensed...