Eamonn Andrews Productions Ltd v Gaiety Theatre Enterprises Ltd

• Jurisdiction: Ireland
• Judgment Date: 13 February 1973
• Date: 13 February 1973
• Docket Number: [D. 3017]
• Court: Supreme Court

Andrews Productions v. Gaiety Theatre

EAMONN ANDREWS PRODUCTIONS LIMITED

Applicants

and

GAIETY THEATRE ENTERPRISES LIMITED

Respondents.

[D. 3017]

Supreme Court

Constitution - Courts - Appeal - Appellate jurisdiction of Supreme Court - Exception - Decision of High Court on appeal from Circuit Court - Courts of Justice Act, 1936 (No. 48), s. 39 - Courts (Supplemental Provisions) Act, 1961 (No. 39), ss. 7, 48 - Constitution of Ireland, 1937, Articles 34, 50, 58.

A decision of the High Court which determines an appeal from the Circuit Court under Part IV of the Courts of Justice Act, 1936, cannot be the subject of an appeal to the Supreme Court since the provisions of s. 39 of the Act of 1936 were re-enacted by s. 48, sub-ss. 1 and 3, of the Courts (Supplemental Provisions) Act, 1961, after the Constitution of Ireland, 1937, came into force, and therefore such provisions constitute a valid exception to the appellate jurisdiction of the Supreme Court in accordance with Article 34, s. 4, sub-s. 3, of the Constitution.

So held by the Supreme Court (Walsh, Henchy and Griffin JJ.)

The State (Browne) v. Feran [1967] I.R. 147 and

In bonis Morelli, Vella v. Morelli [1968] I.R. 11 distinguished

Motion on Notice.

An application by the applicants for a new tenancy in the Gaiety Theatre, Dublin, pursuant to Part III of the Landlord and Tenant Act, 1931, was resisted unsuccessfully by the respondents when the application was made in the Circuit Court and at the hearing of an appeal in the High Court. The respondents wished to appeal to the Supreme Court from the order of the High Court which affirmed the decision of the Circuit Court. The respondents served a notice of appeal within the period allowed by the Rules of the Superior Courts, 1962, but they failed to enter their appeal in the office of the registrar of the Supreme Court within the period allowed by Order 58, r. 11, of the Rules.

The respondents, accordingly, sought an order of the Supreme Court extending the period for entering their notice of appeal or an order deeming good the entry of the notice of appeal which had been made de bene esse. The applicants sought an order of the Supreme Court "striking out or dismissing the purported appeal herein."

Section 39 in Part IV of the Courts of Justice Act, 1936, provides that "The decision of the High Court or of the High Court on Circuit on an appeal under this Part of this Act shall be final and conclusive and not appealable." As originally enacted that section referred to the High Court of Justice constituted under s. 4 of the Courts of Justice Act, 1924. Article 58, sub-s. 1, of the Constitution of Ireland, 1937, provided that:— "On and after the coming into operation1 of this Constitution and until otherwise determined by law, the Supreme Court of Justice, the High Court of Justice, the Circuit Court of Justice and the District Court of Justice in existence immediately before the coming into operation of this Constitution shall, subject to the provisions of this Constitution relating to the determination of questions as to the validity of any law, continue to exercise the same jurisdictions respectively as theretofore. . . ."Article 34 of the Constitution provides for the creation of a "High Court" and a "Supreme Court" and these new courts were established on the 29th September, 1961, by ss. 1 and 2 of the Courts (Establishment and Constitution) Act, 1961. The jurisdictions of the Supreme Court and of the High Court are specified in ss. 7 and 8 of the Courts (Supplemental Provisions) Act, 1961—see pp. 16, 17 of the report of In bonis Morelli, Vella v. Morelli.2Article 34, s. 4, sub-s. 3, of the Constitution states:— "The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law."

Section 48, sub-s. 1 (a), of the Courts (Supplemental Provisions) Act, 1961, states:— "(a) Subject to paragraph (b) of this subsection, this section applies to the following enactments— (i) any enactment contained in the Courts of Justice Acts, 1924 to 1961. . . ." Sub-section 3 of s. 48 provides:— "Every enactment to which this section applies shall apply to the courts established by the Principal Act and to the judges and officers thereof as if it were enacted in this Act . . ." Paragraph (b) of sub-s. 1 of s. 48 states:—"(b) This section does not apply to— (i) any enactment which has been repealed before the operative date or which

is repealed by this Act. . ." Section 39 of the Courts of Justice Act, 1936 (supra) was not repealed by the Courts (Supplemental Provisions) Act, 1961, or by any other statute.

Cur. adv. vult.

Walsh J. :—

The applicants held the premises known as the Gaiety Theatre, 46-50 South King Street in the City of Dublin, from the respondents under a lease dated the 5th August, 1969, for a term of three years commencing on the 23rd September, 1969. The lease came to an end on the 22nd September, 1972. The applicants applied for a new tenancy under Part III of the Landlord and Tenant Act, 1931, and relied on the fact that the premises had been used wholly for the purpose of carrying on business as a theatre. The claim was contested by the respondents on the ground that the premises did not constitute a tenement within the meaning of s. 2 of the Act of 1931 because it was alleged that the letting was one for the temporary convenience of the lessor and that the matter...