Hand v Dublin Corporation

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 01 January 1989
• Neutral Citation: 1988 WJSC-HC 2295
• Court: High Court
• Docket Number: [1986 No. 11629P]
• Date: 01 January 1989

1988 WJSC-HC 2295

THE HIGH COURT

HAND v. DUBLIN CORPORATION

PATRICIA HAND AND OTHERS

.v.

THE LORD MAYOR ALDERMEN AND BURGESSES OF THE CITY OF DUBLINAND OTHERS

Citations:

CASUAL TRADING ACT 1980 S3(1)

CASUAL TRADING ACT 1980 S4(1)

CASUAL TRADING ACT 1980 S5(1)

CASUAL TRADING ACT 1980 S4(5)

CASUAL TRADING ACT 1980 S4(6)

R V BARNSLEY METROPOLITIAN BOROUGH CO, EX PARTE HOOK 1976 1 WLR 1052, 1976 3 AER 452, 74 LGR 493

COUNCIL OF CIVIL SERVICE UNIONS V MIN CIVIL SERVICE 1985 AC 374

CONROY V AG 1965 IR 411

STATE OF MINNESOTA V MOSENG 254 MINN 263

CASUAL TRADING ACT 1980 S5(6)

REC 80/2/CE 11.03.80

R V NORTHERN IRELAND COMPENSATION APPEAL TRIBUNAL, EX PARTE SHAW 1952 1 KB 338

Synopsis:

LICENCE

Grant

Entitlement - Street trader - Statutory conditions - Non- compliance - Licence withheld - Loss of means of livelihood - Reasonableness of conditions - Statute - Interpretation - Validity of enactment - ~See~ Criminal law, offence - (1986/11629P - Barron J. - 28/10/88) [1989] IR 26

|Hand v. Corporation of Dublin|

CRIMINAL LAW

Offence

Street trading - Licence - Disqualification - Statutory conditions - Non-compliance - Means of livelihood removed - Proportionality of penalty resulting from non-compliance - Statute - Interpretation - Inconsistent provision - Section 3, sub-s. 1, of the Act of 1980 states that a person shall not engage in casual trading in a casual trading area unless he holds a casual trading licence and a casual trading permit for the time being in force and the casual trading is in accordance with the licence and the permit - Section 3, sub-s. 4, states that a person who contravenes the section shall be guilty of an offence - Section 4, sub-s. 1, of the Act of 1980 provides that, subject as therein, the Minister for Industry, Trade and Tourism shall grant a casual trading licence to a person applying therefor authorizing him to engage in casual trading - Section 4, sub-s. 6, provides (inter alia) that the Minister shall not grant a casual trading licence to an applicant who was convicted of two or more offences if the latest conviction occurred less than five years before the first day on which the applicant proposes to engage in casual trading "and, two, at least, of the convictions occurred after the expiration of the last period (if any) of disqualification by virtue of this subsection for being granted a casual trading licence" - The defendant Minister refused to grant the applicant plaintiff a casual trading licence under s. 4 of the Act because the plaintiff had been convicted twice of offences under the Act of 1980 within five years of the proposed commencement by the plaintiff of her trading - The plaintiff submitted that the defendant Minister should not have refused to grant her application, and she contended that the concluding words of s. 4, sub-s. 6, were so uncertain as to be meaningless - She submitted that sub-s. 6 was invalid having regard to the provisions of Constitution since its effect was to deprive her of her livelihood as a street trader - Held that an attempt should be made to discover the intention of the Oireachtas in enacting the concluding words of s. 4, sub-s. 6, of the Act - Held that those words should be construed as attributing to the phrase "period of disqualification" - the meaning of a period of five years during which an applicant for a licence did not incur any relevant conviction - Held that the plaintiff had two relevant convictions and five years had not elapsed since the last of those convictions with the result that the terms of s. 4, sub-s. 6 of the Act prevented the defendant Minister from granting the plaintiff's application - Held that it was not unreasonable for the Oireachtas to deny to an applicant a casual trading licence in the circumstances indicated by s. 4, sub-s. 6, of the Act and that the provisions of that sub-section were not invalid having regard to the provisions of the Constitution: ~R. v. Barnsley Borough Council, Ex p. Hook~ [1976] 1 W.L.R. 1052 and ~Conroy v. The Attorney General~ [1965] I.R. 411 considered - Casual Trading Act, 1980, ss. 3, 4 - (1986/11629 P - Barron J. - 28/10/88)

|Hand v. Corporation of Dublin|

1 Judgment of Mr. Justice Barrondelivered the 28th day of October 1988

2 The Plaintiffs are all street traders trading in the Henry Street area of Dublin city. They have been engaged in this activity for varying periods and during most of such time have been trading in contravention of the relevant statutory provisions relating thereto. When the Casual Trading Act 1980came into force, it would have been hoped that they could have brought their activities within its terms. Regrettably, this has not occurred. Although most of the Plaintiffs did obtain at some stage the appropriate licence and permit to trade asrequired by the Act, none is now the holder of the required licence. The cause of this situation was a running dispute between the Plaintiffs and Dublin Corporation at various times as to where they might trade. The merits of this dispute were not opened before me so I make no comment upon them. However, not surprisingly the stage has now been reached where the Corporation is willing to allow the Plaintiffs to trade in a particular area and the Plaintiffs are willing to do so. That this could not have been agreed sooner springs from the nature of things. In the course of the dispute each of the Plaintiffs has been successfully prosecuted at least twice under the provisions of the Act. In consequence, each has been refused a licence under the Act and therefore is unable to accept a permit from the Corporation which would allow them to trade in the agreed area. The Plaintiffs now submit that they ought not to have been refused such licences. The Minister submits that he has no power having regard to the provisions of the Act to do otherwise than to refuse them such licences. The Corporation submits that it is not involved since no question of the issue of a permit by them can arise where the applicants have no licence.

3 It is necessary to refer to certain sections of the Act to explain the bases to these several submission. Section 3 (1) provides that no person shall engage in casual trading in a casual trading area unless he is, or is the servant or agent acting as such of, a person who holds a casual trading licence and a casual trading permit that are for the time being in force and the casual trading is in accordance with the licence and the permit. Section 4 (1) provides for the issue of casual trading licences by the Minister. Section 5 (1) provides forthe issuing of casual trading permits by local authorities to persons who are the holder of casual trading licences for the time being in force. In the present case, the Plaintiffs require to be the holders of casual trading licences and casual trading permits to trade in the areas now agreed between them and the Dublin Corporation. Section 4 (5) and (6) provide for those cases in which the Minister may refuse to grant a casual trading licence to an applicant for such licence. These subsections are as follows:

4 2 "(5) The Minister may refuse to grant a casual trading...