Cork Opera House Plc v Revenue Commissioners
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 21 November 2007 |
| Neutral Citation | [2007] IEHC 388 |
| Court | High Court |
| Docket Number | [2005 No. 611 JR] |
| Date | 21 November 2007 |
[2007] IEHC 388
THE HIGH COURT
BETWEEN
AND
EXCISE ACT 1835 S7
CORK IMPROVEMENT ACT 1868 S172
POINT EXHIBITION CO LTD v REVENUE COMMISSIONERS 1993 2 IR 551 1993 ILRM 621
ROYAL DUBLIN SOCIETY v REVENUE COMMISSIONERS 2000 1 IR 270
KIVAWAY LTD T/A ODEON BAR & NIGHTCLUB & PAWNBEACH LTD T/A 4 DAME LANE v REVENUE COMMISSIONERS 2005 2 ILRM 274 2005/35/7331 2005 IEHC 106
PUBLIC HEALTH ACTS (AMDT) ACT 1890 S51
TOWNS IMPROVEMENT (IRELAND) ACT 1854 ADAPTATION ORDER 1947 SI 410/1947
WILEY v REVENUE COMMISSIONERS 1994 2 IR 160
RSC O.84 r21(1)
RSC O.84 r21
DE ROISTE v MIN DEFENCE 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33
TOWNS IMPROVEMENT (IRELAND) ACT 1854 S4
TOWNS IMPROVEMENT (IRELAND) ACT 1854 S6
TOWNS IMPROVEMENT (IRELAND) ACT 1854 S21
GLENCAR EXPLORATION PLC v MAYO CO COUNCIL 2002 1 IR 84
JUDICIAL REVIEW
Delay
Discretion - Inherent jurisdiction of court to extend time in interests of justice - Legitimate expectations - Whether applicant can pursue remedy involving statutory authority acting in way not authorised by statute - De Roiste v Minister for Defence [2001] 1 IR 190 and Glencar Explorations plc v Mayo County Council (No 2) [2002] 1 IR 84 considered - Time extended but relief refused (2005/611JR - Hedigan J - 21/11/2007) [2007] IEHC 388
Cork Opera House plc v Revenue Commissioners
LICENSING
Intoxicating liquor
Places of public entertainment - Theatre licence - Public entertainment licence - Whether public entertainment licence granted by city council constitutes licence granted by Justices of the Peace - Wiley v Revenue Commissioners [1994] 2 IR 160 applied - Towns Improvement (Ireland) Act 1854 Adaptation Order 1947 (SR & O 410/1947) - Excise Act 1835 (5 & 6 Will 4, c 39), s 7 - Cork Improvement Act 1868 (31 & 32 Vict, c xxxiii), s 172 - Public Health Acts Amendment Act 1890 (53 & 54 Vict, c 59), s 51 - Relief refused (2005/611JR - Hedigan J - 21/11/2007) [2007] IEHC 388
Cork Opera House plc v Revenue Commissioners
JUDGMENT delivered by Mr. Justice Hediganon the 21st day of November 2007
The applicant party is the only opera house in the State and has over many years, held a spirit retailers on-licence (the on-licence) issued by the respondent under s. 7 of the Excise Act, 1835 hereafter ("the 1835 Act"). That licence has been issued by the respondent on foot of a licence issued annually by Cork City Council under s. 172 of the Cork Improvement Act, 1868 hereafter "the 1868 Act").
The applicant seeks to quash the respondents decision that a licence issued under s. 172 of the 1868 Act is not a licence valid for the purpose of s. 7 of the Act.
Section 7 of the 1835 Act provides:
"It shall be lawful for the Commissioner and Officers of Excise, and they are hereby authorised and empowered, to grant Retail Licences to any person to sell Beer, Spirits and Wine in any Theatre established under Royal Patent, or in any Theatre or other Place of Public Entertainment licensed by the Lord Chamberlain or by Justices of the Peace without the Production by the Person applying for such Licence or Licences of any certificate or Authority for such Person to keep a Common inn, Alehouse or Victualling House, anything in any Act or Acts notwithstanding."
Section 172 of the 1886 Act, provides:
" It shall not be lawful for any Person to have or keep any House or other Place of Public Resort within the Borough for the Performance of Stage Plays or other Theatrical Representations or any Circus or any Place for Entertainment in the Nature of Dramatic Entertainment or any other Place of Public Resort kept or used for Public Dancing, Music or other Entertainment of a like kind,( all which Places are hereinafter shortly described or referred to as 'Theatres or other Places of Public Amusement') into which Admission is obtained by payment of Money, without being duly licensed by the Corporation."
The applicant bases its claim for judicial review on the grounds of legitimate expectation and the fact that Cork City Council enjoys the statutory power to grant a licence. The respondent contends that Cork City Council does not enjoy the power to grant such a licence, that no legitimate expectation of the applicant can confer that power on the Council, and that the applicant delayed in seeking judicial review of the decision of the respondent.
Two enactments are involved - the 1835 Act and the 1868 Act. The former is a Public Act of Parliament, the latter a private Act.
The applicant submits that the 1868 Act falls to be considered with the 1835 Act and in that context established a local law for what is now described as Cork City Council. It further submits that s. 7 of the 1865 Act when read with s. 172 of the 1868 Act have been correctly interpreted up to recent date by the respondent and that that interpretation should be upheld.
The applicant further contends that the 1835 Act in its description of "justices of the peace" encompasses a reference to local authorities generally. This applies a fortiori to the Borough of Cork where the charters of the city provided that the Mayor and Aldermen are ex officio justices of the peace, as per the Charters of Elizabeth I of 1st December, 1574, James I of 10th March, 1608, Charles I of 5th April, 1631 and George II of 2nd January, 1785.
The applicant emphasises the importance of the 1868 Act, as a private Act of Parliament, applicable specifically to its Borough. This Act is part of the local law for the City of Cork and is to be read with the public legislation otherwise applicable and Cork's licensing provisions fully satisfy the requirements of s. 7 of the 1835 Act. Evidence is submitted to that effect detailing the theatre licences wherein a theatre licence is granted by Cork City Council up to and including the 29th September, 2007.
The applicant relies upon the respondent's Excise Licences Manual describing Customs and Excise staff instruction relating to the processing of all revenue aspects of excise licenses and submits that this confirms there interpretation of the subsequent licensing regime. This is published on the respondent's website with regard to Theatre and other Places of other Entertainment as follows:
" Excise Act 1835, section 7, [has been] adopted into Irish law by the Adaption of Enactments Act, 1931. Three categories of premises qualify for Intoxicating Liquor Licences, referred to herein as Theatre Licences under this legislation: theatres established under Royal Patent; theatres licensed by the Lord Chamberlain or by justices; and places of public entertainment licensed by the Lord Chamberlain or by justices ... there is now no theatre operating under Letters Patent. The Everyman (Palace) and Opera House theatres in Cork are licensed by Cork Corporation under the Cork Improvement Act, 1868, and the Excise Licence for these premises may be renewed provided the premises continue to be used as theatres and are licensed by the Corporation."
The respondent submits that whilst until 2004 the Revenue Commissioners had not questioned the applicant's entitlement to a licence under s. 7 of the 1835 Act, following a review of the requirements of s. 7, it seemed clear to them that the applicant does not satisfy these requirements. In the result, the Revenue Commissioners consider they have not the power to grant a licence under s. 7. They further submit that the applicant's reliance on the doctrine of legitimate expectation cannot succeed, because the doctrine cannot prevail against a statute. In the result, they submit that unless the applicant can show that it has satisfied the requirements of s. 7 of the 1835 Act, the Revenue Commissioners have no power to grant a licence as sought.
The respondent submits that pursuant to s. 7 there are certain requirements to empower the Revenue Commissioners to issue a licence only one of which arises here, i.e. where the applicant is a theatre or other place of public entertainment licensed by justices of the peace. The central question, therefore, is as to whether the applicant is the holder of a licence issued by a justice of the peace. The Revenue Commissioners submit that it is not, but note that having regard to the decisions in Point Exhibition Company Limited v. The Revenue Commissioners [1993] 2 I.R. 551, Geoghegan J., Royal Dublin Society v. Revenue Commissioners [2001] 1 I.R. 270, Keane J. and Kivaway Limited v. Revenue Commissioners [2005] 2 I.L.R.M. 274, Quirke J., it would be a relatively easy matter for the applicant to come within the requirements of s. 7 of the 1835 Act and obtain an on-licence. All that is required to enable the respondents to issue an excise licence is that the applicant should be the...
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