HUME and Others v Judge O'Donnell
| Jurisdiction | Ireland |
| Judge | Mr Justice Feeney MR JUSTICE FEENEY |
| Judgment Date | 08 September 2006 |
| Neutral Citation | [2006] IEHC 306 |
| Court | High Court |
| Docket Number | No. 6279 P/1998 |
| Date | 08 September 2006 |
[2006] IEHC 306
HIGH COURT
BETWEEN
INTOXICATING LIQUOR ACT 1960 S32
COURTS ACT (NO 2) 1986 S9
O'NEILL v BEAUMONT HOSPITAL 1990 ILRM 419
O'REILLY v CASSIDY (NO 2) 19995 1 ILRM 311
FGC LTD v LANNON 1968 3 AER 304
DUBLIN CO BROADCASTING v INDEPENDENT RADIO & TELEVISION COMMISSION UNREP MURPHY 12.5.1998 (EX TEMPORE)
R v ROMSEY JUSTICES EX PARTE GALE 1992 CRIM LR 451
SPIN COMMUNICATIONS LTD T/A STORM FM v INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) & MAYPRIL LTD 2001 4 IR 411 2002 1 ILRM 98
ORANGE COMMUNICATIONS LTD v DIRECTOR OF TELECOMMUNICATIONS REGULATION & METEOR MOBILE COMMUNICATIONS LTD 2000 4 IR 159 2000/15/5538
JERRY BEADES CONSTRUCTION LTD v DUBLIN CORPORATION UNREP MCKECHNIE 7.9.2005 2005/32/6641
O'BRIEN v BORD NA MONA 1983 IR 255
LICENSING:
Intoxicating liquor
Renewal - Objection to renewal of licence - Fair procedures - Bias - Prejudgment -O'Neill v Beaumont Hospital [1990] ILRM 419 and O'Reilly v Cassidy (No 2) [1995] 1 ILRM 311 followed - Intoxicating Liquor Act 1960 (No 18) - Certiorari refused(2006/579JR - Feeney J - 8/9/2006) [2006] IEHC 306 Hume v Judge O'Donnell
the applicants were objectors to the grant of a liquor license to the notice party. The respondent, after a preliminary hearing, received written submissions from both parties and adjourned the proceedings. On the adjourned date, he dismissed the objections raised by the applicants, stating, inter alia, that the oral submissions made on that date failed to change his mind. The applicants sought to quash the respondent’s decision by way of judicial review, contending that the entirety of the respondent’s decision was pre-scripted and that the decision displayed objective bias thereby and that he failed to take into account their oral submissions made on the adjourned date.
Held by Mr Justice Feeney in refusing the relief sought that an allegation of prejudgment would be made out where a reasonable person would have apprehended that a predetermination had been made and fully written out prior to the hearing by the decision maker in question. That, in deciding whether an allegation of the adoption of improper procedures against a court or tribunal had been made out, the court had to look at all the circumstances of the proceedings in question.
Reporter: P.C.
EX TEMPORE JUDGMENT OF Mr Justice Feeney MR JUSTICE FEENEY delivered on the 8th day of September, 2006
In this case the eleven applicants, who are all residents of North Great Georges Street in the City of Dublin, seek Orders of Certiorari by way of judicial review. The two Orders of Certiorari sought are firstly an Order to quash the Respondent District Judge's Order of the 3rd May 2006 dismissing the Applicants' objection to the Notice Party's application to renew a licence for the sale of intoxicating liquor at the Belvedere Hotel located at Rutland Place, Great Denmark Street and North Great George's Street in the City of Dublin and secondly for an Order quashing the certificate for renewal of the intoxicating liquor licence attached to the said premises.
The Respondent in this case is the District Judge who dealt with the objection to the license renewal application on the 3rd May 2006 and the Notice Party is the holder of the licence. The grounds upon which relief is sought are set out in paragraph D(a) to (g) of the Statement required to ground the application for judicial relief.
In the Applicants' written submissions it was expressly identified that the Applicants' case might be set out under two headings, namely:
(a) That the respondent prejudged the Applicants' objection made to the District Court concerning the Notice Party's licence by purporting to adjudicate upon such objection by reading out a text, which was a text which the Respondent admitted he had prepared prior to the hearing;
(b) That the Respondent failed to take into account reasoned and relevant submissions made in open court by counsel for the Applicants, thereby failing to properly exercise the Respondent's jurisdiction, and that there was a failure on the Respondent's behalf to take into account all relevant matters raised before him.
This application for judicial review was not limited to affidavit evidence and the court had the benefit of hearing the oral evidence of three deponents who were cross-examined. Those deponents were Angela Farrell, Muireann Noonan and Padraig Heraghty. The purpose of such oral testimony was to establish, with as much certainty as possible, what had occurred during the hearing before the District Court on the 3rd May 2006. The three persons who gave evidence were all present in the District Court carrying out various functions on that date. Angela Farrell was the solicitor and Muireann Noonan, the junior counsel, acting for the objectors on that date. Padraig Heraghty was the solicitor for Palmece Limited.
Those witnesses produced such written record as they had which were made either contemporaneously or in the days immediately following the 3rd May 2006 hearing. Angela Farrell gave evidence before the District Court and it was for the reason that Muireann Noonan took a note of her evidence. Muireann Noonan took reasonably detailed handwritten notes in court and expanded those handwritten notes following the hearing into a slightly more detailed document.
Padraig Heraghty took limited handwritten notes in court but within a matter of days had prepared a slightly more detailed typed attendance based upon the handwritten notes and his recollection. During the course of the cross-examination of the three witnesses such written records as were available were produced in court and were the subject of cross-examination. From the above oral evidence, together with the documents produced, and from the Affidavits sworn herein, the Court has been able to identify the probable sequence of events and occurrences which took place in the District Court on the 3rd May, 2006.
Prior to dealing with the events in the District Court on the 3rd May 2006 it is appropriate to outline some general background information as to the events which led to that District Court hearing.
The Applicants are all owners of protected buildings on North Great Georges Street and they filed a Notice of Objection on the 7th September 2005 in respect of the Notice Party's application for renewal of the hotel licence with public bar facilities attached to the premises at the Belvedere Hotel which is partly located on North Great Georges Street. That Notice of Objection related to the renewal of licence which was being sought by the Notice Party in September 2005.
The history of that licensed premises is set forth in paragraph 4 of the Grounding Affidavit of Angela Farrell, sworn herein, which details that the Grants of Licence to the premises were subject to certain conservation works being undertaken prior to the opening of the hotel extension, including the public house, to the public. The original applicant for planning permission was a Mr Donnie Cassidy. The application for a licence on the 21st November 2002 was made to the Circuit Court on behalf of Mr Simon Kelly and was granted on that date and thereafter the licence was transferred to the current holder, Palmece Limited, the Notice Party herein. The factual position is that no objection was made by the objectors to the grant of the licence on the 21st November 2002, nor was any application made thereafter to judicially review or to seek to quash the Order of the Circuit Court made on that date.
The basis for the objectors' objection to the renewal of the licence in September 2005 was set forth in their Notice of Objection dated the 7th September 2005. That Notice was expanded upon in a subsequent written outline submission. In the Notice of Objection, the objectors claimed that the premises, as erected, were in violation of statutory provisions and that it was contrary to public policy that a licence should issue and that the issue of a licence would be in direct contravention of the conditions of the planning permission. As indicated, the Notice of Objection to the renewal of the Intoxicating Liquor Licence was expanded upon in the submissions to extend beyond the claim relating to the premises and extended to the character of the party applying for the renewal of the licence. It was expressly stated in the Outline Submissions:
"that the objection which is being made to renewal is that it goes to the root of the character of the applicant that he has failed to comply with the conditions of planning permission which clearly prohibit the opening of the public bar while certain works to an important structure remain outstanding in North Great Georges Street".
The outline submissions went on to claim that the existence of the Circuit Court Certificate goes to the root of the unacceptability of the character of the licensee as an applicant and that a chain or connection could be established between the applicant for the planning permission, Mr Donnie Cassidy, the applicant at the time of the Circuit Court application, Simon Kelly, and the now licensee, Palmece Limited. That chain or connection was expressly identified as one that could be established by the objectors and was expressly relied...
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