Kivaway Ltd t/a Odeon Bar and Nightclub v Revenue Commissioners
| Jurisdiction | Ireland |
| Judge | Quirke J. |
| Judgment Date | 07 April 2005 |
| Neutral Citation | [2005] IEHC 106 |
| Court | High Court |
| Docket Number | [No. 122 JR/2003] |
| Date | 07 April 2005 |
BETWEEN
AND
AND
BETWEEN
AND
[2005] IEHC 106
THE HIGH COURT
LICENSING: intoxicating liquor
Theatre licence - Seven day on licence - Criteria for grant of theatre licence - "Theatre or other place of public entertainment" - Whether existence of seven day on licence prevented grant of theatre licence - Whether court having jurisdiction to quash refusal to grant licence under erroneous view of law - Royal Dublin Society v Revenue Commissioners [2000] 1 IR 270 followed - Excise Act 1835 (5 & 6 Will 4, c 39), s 7 - Refusal quashed
STATUTORY INTERPRETATION: construction
Implied repeal of pre-existing legislation - Generalia specialibus non derogant - Whether presumption that pre-existing legislation not repealed - Whether implicit that theatre licence unavailable to holder of on licence under subsequent legislation - Seward v "Vera Cruz" (1884) 10 App Cas 59; Churchwardens of West Ham v Fourth City Mutual Building Society [1892] 1 QB 654 and DPP v Grey [1986] IR 317 considered - Excise Act 1835 (5 & 6 Will 4, c 39), s 7 - Intoxicating Liquor Acts 1833 to 2003 - Refusal of licence quashed (2003/122JR & 2003/123JR - Quirke - 7/4/2005) - [2005] IEHC 106
KIVAWAY LTD T/A ODEON BAR & NIGHTCLUB & PAWNBEACH LTD T/A 4 DAME LANE v REVENUE COMMISSIONERS
The applicants applied by way of judicial review for orders of certiorari quashing decisions whereby the respondents refused to grant to the applicants theatre licences pursuant to s. 7 of the Excise Act 1835.
Held by Quirke J. in granting the relief sought that the Court was not satisfied that the respondents could lawfully refuse to grant licences under s. 7 of the Act of 1835 on the sole ground that any premises to which a seven day on-licence attached had to ipso facto be disqualified from the grant of such a licence. The respondents’ decisions were based on a misunderstanding of the law.
Reporter: R.W.
EXCISE ACT 1835 S7
INTOXICATING LIQUOR ACT 1833 - 2003
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S3
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S33
FREEDOM OF INFORMATION ACT 1997
INTOXICATING LIQUOR ACT 1927 S21(2)
DPP v TIVOLI CINEMA LTD 1999 2 IR 260 1999 2 ILRM 153
PUBLIC HEALTH (AMDT) ACT 1890 S51(1)
PUBLIC DANCE HALLS ACT 1935 S2
PUBLIC DANCE HALLS ACT 1935 S14(1)
EXCISE ACT 1835 S87
ROYAL DUBLIN SOCIETY v REVENUE COMMISSIONERS 2000 1 IR 270
ALLEN v EMMERSON 1944 KB 362
ANDERSON v ANDERSON 1895 QB 749
POINT EXHIBITION v REVENUE COMMISSIONERS 1993 2 IR 551 1993 ILRM 621
BENNION STATUTORY INTERPRETATION 4ED 254
DPP v GREY 1986 IR 326
CHURCHWARDENS & OVERSEES OF WEST HAM v FOURTH CITY MUTUAL BUILDING SOCIETY 1892 1 QB 654
SEWARD v OWNERS OF VERA CRUZ 1884 10 APP CAS 59
PUBLIC DANCE HALLS ACT 1935 S7
By orders of the High Court (O'Donovan J.) dated 24th February, 2003, the applicants were given leave to apply by way of judicial review for orders ofcertiorari quashing decisions whereby the respondents refused to grant to the applicants licenses pursuant to s. 7 of the Excise Act, 1835 in respect of licensed premises at (a) the Old Harcourt Street Railway Station, 57 Harcourt Street in the City of Dublin (which is trading as "The Odeon Bar and Nightclub") and (b) 4 Dame Lane in the City of Dublin 2 (which is trading as "4 Dame Lane".)
The applicants have also been given leave to seek certain declaratory and other reliefs additional and ancillary to the substantial reliefs sought.
Since the facts governing both applications and the grounds relied have been virtually identical and since the reasons given by the respondents for refusing to grant both licenses have been the same it has been agreed between the parties that the application bearing the Record Number 2003 No. 122 JR (Kivaway Limited) will be decided by this court on its facts and the determination of that case will govern the outcome of the application bearing the Record Number 2003 No. 123 JR (Pawnbeach Limited).
1. The applicant is the owner of premises comprising the former Harcourt Street Railway Station. It is situated at 57 Harcourt Street in the City of Dublin. The premises comprise a listed building of historic significance which is styled in a palladian neo-classical manner.
The building has been restored and adapted as a large licensed premise containing oak floors and period furniture and fittings.
The overall floor area of the premises is of the order of 10,000 square feet comprising: (i) 5000 square feet at ground level, (ii) 2,000 square feet at first floor level (with an additional terrace of 1,000 square feet) and (iii) an upstairs function room with a floor area of 2,000 square feet.
The ground floor can accommodate a stage at one end of the floor with seating in the balance which enjoys a full view of the stage.
The premises containinter alia two large cinema screens. The bar is located at the rear of the building.
2. The applicant is the holder of the following licences in respect of the premises:
(a) a full 7 day on-licence (pursuant to the provisions of Intoxicating Liquor Act, 1833 û 2003) for the sale of intoxicating liquor,
(b) a licence (pursuant to the provisions of s. 51 of the Public Health Amendment Act, 1890 as amended by s. 3 to s. 33 of the Courts (Supplemental Provisions) Act,1961) for public music and singing, or for other public entertainment of a like kind and,
(c) a licence pursuant to the provisions of the Public Dance Halls Act,1935 for public dancing.
3. By letter dated 24th September, 2002, the applicants solicitors wrote to the respondents indicating that the applicant wished to apply (pursuant to s. 7 of the Excise Act 1835) for a theatre licence in respect of the premises.
The letter enclosed very substantial documentation including a formal application for a theatre licence and comprehensive documentation outlining in detail (a) the nature of the premises, (b) the licences which attached to the premises, (c) details as to why the applicants regarded the premises as appropriate and suitable for use as a place of public entertainment, and (d) other written submissions explaining why the licence was being sought. Under the latter heading the applicant indicated that it wished to capitalise on the business potential of the premises as a place of public entertainment and to compete more effectively with other similar entertainment venues.
A schedule was provided suggesting that the premises had been used on many earlier occasions for public entertainment performances.
4. By letter dated 4th October, 2002, the respondents sought additional information from the applicant arising out of a schedule of events supplied to the respondents be the applicant.
5. By letter dated 8th October, 2002, the applicant's solicitors replied enclosing a copy of the music and singing licence which attached to the premises and advised that; …"We have sought our clients instructions in relation to the further information you required in relation the Schedule of Events …"
6. Before such instructions had been sought or obtained the respondents by letter dated 14th October, 2002, advised the applicants that the respondents were "… unable to issue a licence in this case."
The letter continued ..
"Section 7 authorises the Revenue Commissioners to issue a licence in respect of "any theatre or place of public entertainment" the premises in question is a public house. A public house is not a "theatre or other place of public entertainment", consequently the Commissioners cannot issue a licence in respect of the same. In addition there is already a Spirit Retailer's on-licence attaching to the premises. One cannot hold two licences for the sale of the same types of intoxicating liquor in respect of the one premises and accordingly the Revenue Commissioners could not issue a s. 7 licence in this case even if the premises in question was "a theatre or other place of public entertainment".
7. By letter dated the 30th October, 2002, the applicant's solicitors replied requesting that the respondents reconsider their decision or "state with certainty the statutory basis or other precedent for each and all of the grounds of refusal set out in your letter of the October 14th…".
8. By letter dated 22nd November, 2002, the respondents replied indicating that they had inspected the applicants premises and that:
"…it is clear from this inspection and from the material provided by you that the premises in question is a public house, is licensed as a public house and will continue to be licensed and operated as such should this application be granted. In the circumstances …the Revenue Commissioners are unable to issue a licence in this case for the reasons set out in my letter of the 14th October."
The letter continuedinter alia:
"…in addition the Revenue Commissioners do not accept that one can hold two licences for the sale of the same category of alcohol for the one premises. This is implicit in the licence code. The legislature has created different categories of retail licences with distinct privileges and obligations many of which are mutually incompatible and has not provided that these licences can be held together. For example, in the case of an ordinary publican's licence drink may be sold to all comers provided they are sober and of age. In the case of a theatre licence, drink may only be sold to persons who have engaged seats for the performance. Likewise,...
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