Carlow Town Council v Judge Patrick Clyne and Another

• Jurisdiction: Ireland
• Judge: Mr Justice de Valera
• Judgment Date: 19 December 2013
• Neutral Citation: [2013] IEHC 613
• Date: 19 December 2013
• Court: High Court
• Docket Number: Record Number: 327 JR/2012

[2013] IEHC 613

THE HIGH COURT

Record Number: 327 JR/2012

Carlow Town Council v Judge Clyne & Jaykay Leisure Ltd

JUDICIAL REVIEW

BETWEEN

CARLOW TOWN COUNCIL

APPLICANT

-and-

JUDGE PATRICK CLYNE

RESPONDENT

-and-

JAYKAY LEISIURE LIMITED

NOTICE PARTY

GAMING & LOTTERIES ACT 1956 S15

GAMING & LOTTERIES ACT 1956 PART III

GAMING & LOTTERIES ACT 1956 S12

CAMILLO, IN RE 1988 IR 104 1988 ILRM 738 1988/1/28

RSC O.84

STATE, DIVITO v ARKLOW URBAN DISTRICT COUNCIL & BYRNE 1986 ILRM 123 1984/4/1263

COMHALTAS CEOLTEOIRI EIREANN, IN RE UNREP FINLAY 14.12.1977 1977/2/306

REGISTRATION OF CLUBS (IRL) ACT 1904

GAMING & LOTTERIES ACT 1956 S13

Z v DPP 1994 2 IR 476 1994 2 ILRM 497

CLUNE & ORS v DPP; CLUNE & ORS v DISTRICT JUSTICE CLIFFORD 1981 ILRM 17 1981/1/120

Administrative law - Judicial review - Jurisdiction- Error- Gaming - Resolution - Gaming and Lotteries Act 1956

Facts: The applicant sought an order of prohibition restraining the respondent from hearing an application for the grant of a certificate authorizing the issue of a gaming licence. The applicant contended that previous certificates had been granted in error. The primary contention of the applicant was that there was no part III resolution in force pursuant to Gaming and Lotteries Act 1956 in respect of the premises of the notice party and that as a result, the respondent did not have jurisdiction to determine an application.

Held by DeValera J. that the application would be dismissed. The application was misconceived as it was asking the Court to interfere in the jurisdiction of the District Judge before it had an opportunity to consider the arguments in the case. The arguments of the applicant that the respondent did not have jurisdiction to inquire into the validity of resolutions taken was neither based in statute nor caselaw.

Mr Justice de Valera

1 The applicant seeks an order of prohibition by way of an application for judicial review restraining the respondent from proceeding to hear the application of the notice party for the grant of a certificate authorising the issue of a gaming licence pursuant to section 15 of the Gaming and Lotteries Act1956.

2 The licensing of amusement halls and funfairs is governed by Part III of the Gaming and Lotteries Act1956. Section 12 of the Act provides -

This Part shall not have effect in any area unless there is for the time being in force a resolution under section 13 adopting it for that area.

3 On 25^th April 2008 the notice party's solicitors wrote to the applicant asking them to confirm in writing "that Carlow UCD has by resolution adopted part III of the Gaming and Lotteries Act 1956 in respect of the administrative area relating to the above premises". This letter was replied to on 28^th April 2008 by Mr Joseph Watters, the then town clerk for Carlow, who advised that "Carlow Town Council (formerly Carlow Urban District Council) has not adopted Part III of the Gaming and Lotteries Act 1956" in respect of the administrative area relating to the notice party's premises.

4 Nevertheless, the applicant successfully applied to the District Court for a certificate under section 15 of the Act on 15^th June 2008 and also in 2009 and 2010. The applicant did not appear in the District Court on any of these occasions and there was no opposition to the applications.

5 In his affidavit of 19^th April 2012 Mr. Michael Brennan, town clerk, states that shortly after succeeding Mr. Watters in that role he became aware that the notice party had been successful in its applications for certificates for a gaming licence despite there being, in the applicant's view, no part III resolution in force in respect of the notice party's premises. On 17^th January 2011 the applicant's solicitors wrote to the notice party's solicitors informing them that the previous certificates had been granted in error and that future applications would be contested.

6 On 1^st March 2012 the notice party applied to the District Court for a certificate authorising the issue of a gaming licence in respect of its premises at The Burrin Aracde, Carlow Town. A dispute arose between counsel as to the jurisdiction of the District Court to hear the application and the respondent adjourned the matter which resulted in proceedings being...