Doyle v Hearne

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,Henchy J.,GRIFFIN J.,McCARTHY J.
• Judgment Date: 01 January 1988
• Neutral Citation: 1987 WJSC-SC 1478
• Docket Number: [S.C. No. 182 of 1986]
• Court: Supreme Court
• Date: 01 January 1988

DOYLE v. HEARNE

RAYMOND DOYLE

Applicant

and

CIARAN HEARNE, ROBERT DUNNE and BRENDAN KEEGAN

Objectors

1987 WJSC-SC 1478

Finlay C.J.

Walsh J.

Henchy J.

Griffin J.

McCarthy J.

182/86

THE SUPREME COURT

Synopsis:

CASE STATED

Circuit Court

Jurisdiction - Statement - Point of time - Question of law - Determination by Supreme Court - A judge of the Circuit Court may state a case pursuant to s.16 of the Act of 1947 at any stage of the matter pending before him, provided that he has determined all the facts relevant to the question of law posed in the case so stated - ~See~ Supreme Court, case stated - Courts of Justice Act, 1947, s.16 - (182/86 - Supreme Court - 31/7/87) [1987] IR 601

|Doyle v. Hearne|

CIRCUIT COURT

Jurisdiction

Case stated - Statement - Point of time - Question of law - Determination by Supreme Court - A judge of the Circuit Court may state a case pursuant to s.16 of the Act of 1947 at any stage of the matter pending before him, provided that he has determined all the facts relevant to the question of law posed in the case so stated - ~See~ Supreme Court, case stated - Courts of Justice Act, 1947, s.16 - (182/86 - Supreme Court - 31/7/87) [1988] ILRM 318 [1987] IR 601

|Doyle v. Hearne|

PRACTICE

Adjournment

Judge - Inherent power - Abolition - Ambiguous enactment - Power not abolished save by clear terms - ~See~ Supreme Court, case stated - (182/86 - Supreme Court - 31/7/87) [1988] ILRM 318 [1987] IR 601

|Doyle v. Hearne|

STATUTORY INTERPRETATION

Ambiguity

Precedent - Departure - Power of adjournment - Removal - ~Expressio unius exclusio alterius~ - Enactment conferring power of adjournment in one instance - Power exercisable in all instances - ~See~ Supreme Court, case stated - (182/86 - Supreme Court - 31/7/87) [1988] ILRM 318 [1987] IR 601

|Doyle v. Hearne|

SUPREME COURT

Case Stated

~Stare decisis~ - Precedent - Departure - ~Ratio decidendi~ - Statute - Interpretation - Point of time at which case may be stated - Section 22 (repealed) of the Act of 1936 conferred on a Circuit Court judge jurisdiction to refer to the Supreme Court, by case stated, any question of law arising in a matter pending before the judge; but that section did not indicate the stage in the proceedings at which the power to state such case was to be exercised - Section 38 of the Act of 1936, which deals with appeals from the Circuit Court to the High Court in Dublin and to the High Court on Circuit, provides at sub-s.3 that a High Court judge hearing such an appeal may refer to the Supreme Court, by case stated, any question of law arising in the appeal and "may adjourn the pronouncement of his judgment" on the appeal, pending the Supreme Court's determination of the case stated - The next sub-section of s.38, which deals with adjournments by the High Court on Circuit, empowers a judge of that court (hearing an appeal from the Circuit Court) to "adjourn the hearing" of the appeal, and the pronouncement of his judgment, to another appeal town or to Dublin - Section 16 of the Act of 1947 (which replaced s.22 of the Act of 1936) provides that a Circuit Court judge may refer, by case stated, a question of law to the Supreme Court "and may adjourn the pronouncement of his judgment" pending the Supreme Court's determination of the case stated - In ~Corley v. Gill~ [1975] IR 313 the Supreme Court held, in an extempore judgment, that the jurisdiction conferred by s.16 of the Act of 1947 did not empower a Circuit Court judge to state a case pursuant to that section unless he had heard or received all the evidence to be tendered to him in the matter pending before him - The ~ratio decidendi~ in ~Corley v. Gill~ was that the terms of s.16 of the Act of 1947, conferring an express power to adjourn only the pronouncement of the judgment of the Circuit Court judge, were an intentional adoption of the similar terms of s.38, sub-s.3, of the Act of 1936 and that, in view of the absence of any power of adjournment in the section replaced by s.16, such limited power of adjournment clearly indicated that the jurisdiction to state a case pursuant to s.16 of the Act of 1947 did not exist until the only function to be discharged by the Circuit Court judge was the pronouncement of his judgment - The ~ratio decidendi~ in ~Corley v. Gill~ was applied by the Supreme Court in ~Dolan v. Corn Exchange~ [1975] IR 315 when interpreting s.38, sub-s.3, of the Act of 1936 - The applicant applied in the Circuit Court, pursuant to s.15 of the Act of 1960, for a declaration that certain proposed premises, when constructed, would be fit and convenient to be licensed under the Licensing Code - Certain objectors raised a question of law at the hearing of the application and the Circuit Court judge then stated a case, pursuant to s.16 of the Act of 1947, for the determination of that question of law by the Supreme Court - That case was so stated before any evidence had been adduced in the Circuit Court to establish the fitness and convenience of the proposed premises for licensing purposes - Held that the terms of s.16 of the Act of 1947 were not so unambiguous as to preclude an interpretation which permitted a case to be stated pursuant to the section before all the evidence to be adduced in the matter pending before the judge had been heard or received by him - Held that the Circuit Court judge had an inherent jurisdiction to adjourn any part of the proceedings pending before him in order to secure the due administration of justice, and that such inherent jurisdiction could not be removed except by unambiguous terms - Held, in determining the preliminary issue, that the Circuit Court judge had jurisdiction to state a case pursuant to s.16 of the Act of 1947 at any stage of the proceedings before him, provided that he had determined all the facts relevant to the question of law posed in the case so stated: ~Corley v. Gill~ [1975] IR 313 overruled - Courts of Justice Act, 1936, ss.22, 38 - Courts of Justice Act, 1947, s.16 - Intoxicating Liquor Act, 1960, s.15 - (182/86 - Supreme Court - 31/7/87) [1988] ILRM 318 [1987] IR 601

|Doyle v. Hearne|

Citations:

COURTS OF JUSTICE ACT 1947 S16

INTOXICATING LIQUOR ACT 1960 S15

INTOXICATING LIQUOR ACT 1962 S20

INTOXICATING LIQUOR ACT 1960 S27

CORLEY V GILL 1975 IR 313

DOLAN V CORN EXCHANGE 1975 IR 315

COURTS OF JUSTICE ACT 1936 S38(3)

COURTS OF JUSTICE ACT 1936 S38(4)

QUINN, STATE V RYAN 1965 IR 70

AG V RYAN'S CAR HIRE LTD 1965 IR 642, 101 ILTR 57

MOGUL OF IRELAND V TIPPERARY (NR) CO COUNCIL 1976 IR 260

DPP V GANNON UNREP SUPREME 03.06.86 EX TEMP

ARBITRATION ACT 1954 S49

ARBITRATION ACT 1954 S52

COURTS OF JUSTICE ACT 1936 S22

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

JONES V SECRETARY OF STATE 1972 2 WLR 210

DOWLING'S CASE 1967 1 AC 725

FITZLEET ESTATES V CHERRY 1977 1 WLR 1345

HARKIN, STATE V O'MALLEY 1978 IR 269

AG, PEOPLE V DOYLE 101 ILTR 136

CAHILL, STATE V THE PRESIDENT OF THE CIRCUIT COURT 1954 IR 128

WEXFORD TIMBER CO V WEXFORD CORPORATION 88 ILTR 137

AG, PEOPLE V MCGLYNN 1967 IR 232

HAMILTON V HAMILTON 1982 IR 466, 1982 ILRM 290

TEMPANY V HYNES 1976 IR 101

1 JUDGMENT delivered on the 31st day of July 1987by FINLAY C.J. [Walsh Agr]

2 This is a Case Stated by Judge Diarmuid Sheridan, Judge of the South Eastern Circuit, pursuant to Section 16 of the Courts of Justice Act 1947, in an application made by the Applicant for a declaration that he was entitled to receive a new Ordinary Publican's On Licence, pursuant to Section 15 of the Intoxicating Liquor Act 1960in respect of certain premises situate at Carne in the County of Wexford, proposed to be constructed and adapted by the Applicant.

3 From the Case Stated it appears that the first objection made on behalf of the Objectors was that the Applicant was by virtue of the provisions of Section 20 of the Intoxicating Liquor Act 1962("the 1962 Act") precluded from obtaining thelicence sought for the premises because they were within one mile, measured by the shortest public thoroughfare, from an existing licensed premises, "The Lobsterpot".

4 The material provisions of the 1962 Act are as follows:

5 a "2(a) An application to the Circuit Court under Section 13 of the Act of 1960 shall not be allowed in respect of premises situate less than one mile, measured by the shortest public thoroughfare, from premises in respect of which there is in force a licence that was first granted on or before the 4th July 1960 and is of the same character as the licence that would fall to be granted if the application wereallowed.

6 (b) For the purposes of this subsection, all on licences shall be deemed to be licences of the same character."

7 The learned Circuit Court Judge found as a fact that the Applicant's proposed premises were within one mile, measured by the shortest public thoroughfare, from the said "Lobsterpot" premises.

8 The learned Circuit Court Judge also found as a fact that the licence attached to the "Lobsterpot" premises was up to the 3rd day of August 1961 a six-day restricted on licence, but that on that date, pursuant to the provisionsof Section 27 of the Intoxicating Liquor Act 1960, this restricted licence was "converted" to a full publican's licence. On these findings of fact the question raised by the learned Circuit Court Judge is as to whether notwithstanding "this conversion" under Section 27 of the Act of 1960 he is precluded by Section 20 of the Act of 1962 from granting a licence to theApplicant.

9 It is clear from the terms of the Case Stated and it is agreed by Counsel before us that if the decision of this Court should be that notwithstanding "the conversion" of the licence under Section 27 of the Act of 1960 the Circuit Court Judge is precluded from granting a licence then no other question arises before him in the case and the application for a licence must be refused. It is equally clear, however, and also agreed by Counsel that if the decision of this...