Point Exhibition Company Ltd v Revenue Commissioners

JurisdictionIreland
JudgeMr. Justice Geoghegan
Judgment Date03 March 1993
Neutral Citation1993 WJSC-HC 2596
Docket Number301JR/1992,[1992 No. 301 J.R.]
CourtHigh Court
Date03 March 1993
POINT EXHIBITION CO LTD v. REVENUE COMMISSIONERS

BETWEEN

POINT EXHIBITION COMPANY LIMITED
APPLICANT

AND

THE REVENUE COMMISSIONERS
RESPONDENTS

1993 WJSC-HC 2596

301JR/1992

THE HIGH COURT

JUDICIAL REVIEW

Synopsis:

DELAY

Application

Determination - Failure - Licensor - Reasonable period - Expiration - Declaration of applicant's rights - (1992/501 JR - Geoghegan J. - 3/3/93) - [1993] 2 I.R. 551 - [1993] ILRM 621

|Point Exhibition Co. Ltd. v. Revenue Commissioners|

LICENSING ACTS

Licence

Grant - Applicant - Entitlement - Premises - Place of public entertainment - Delay - Failure to determine application within reasonable period - Excise Act, 1835, s. 7 - Licensing Act, 1872, ss. 72, 77 - (1992/501 JR - Geoghegan J. - 3/3/93) [1993] 2 I.R. 551

|Point Exhibition Co. Ltd. v. Revenue Commissioners|

WORDS AND PHRASES

"Theatre"

Building - Use - Entertainments - Range - Diversity - Whether building a theatre for licensing purposes - (1992/501 JR - Geoghegan J. - 3/3/93) - [1993] 2 I.R. 551 - [1993] ILRM 621

|Point Exhibition Co. Ltd. v. Revenue Commissioners|

Citations:

EXCISE ACT 1835 S7

PUBLIC HEALTH ACTS AMDT ACT 1890 S51

PUBLIC DANCE HALL ACT 1935

DUBLIN STAGE REGULATION ACT 1786 S1

DUBLIN STAGE REGULATION ACT 1786 S2

LICENSING ACT 1872 S77

LICENSING ACT 1872 S72

R V COMMISSIONERS OF INLAND REVENUE 1888 21 QBD 569

MORRISON V COMMISSIONERS OF CUSTOMS 1927 NI 115

VANSTONS PUBLIC HEALTH 2ED 355

DISORDERLY HOUSES ACT 1751

DUBLIN STAGE REGULATION ACT 1786

LICENSING ACT (IRL) 1874

PUBLIC HEALTH (IRL) ACT 1890

THEATRES ACT 1843

28 GEORGE 11 C36

28 GEORGE 111 C30

25 GEORGE II C36 S2

LICENSING ACT 1872

LICENSING ACT 1874 S7

EXCISE ACT 1835

1

Judgment of Mr. Justice Geoghegandelivered the 3rd day of March 1993.

2

On the 19th of May 1992 the Applicant applied to the Respondents for a licence under Section 7 of the Excise Act 1835 in respect of the premises known as "The Point" and situate at North Wall Quay and East Wall Road in the City of Dublin. Section 7 reads asfollows:-

"It shall be lawful for the Commissioners and Officers of Excise, and they are hereby authorised and empowered, to grant retail licences to any person to sell beer, spirits, and wine in any theatre established under a Royal Patent, or in any theatre or other place of public entertainment licensed by the Lord Chamberlain or by Justices of the Peace, without the production by the person applying for such licence or licences of any certificate or authority for such person to keep a common inn, alehouse, or victualling house; anything in any Act or Acts to the contrary notwithstanding".

3

The grounds of application were that the Point is a place of entertainment in respect of which there is a licence under Section 51 of the Public Health Acts Amendment Act 1890 to keep and use the Point for public music, singing or other public entertainment of the like kind and a licence for public dancing under the Public Dance Hall Act 1935and that therefore it falls within the description "other place of public entertainment licensed by Justices of the Peace" under Section 7 of the 1835 Act cited above, the District Court being the successor of the Justices of the Peace.

4

It is common case that the Point is not a patented theatre under the Dublin Stage Regulation Act 1786 or at all. But it is the Applicant's case that the Point is a place of public entertainment, licensed as such by the District Court.

5

The Respondents have not either granted or refused the licence under Section 7 of the 1835 Act but at all material times have informed the Applicant that the matter is still under consideration. It appears that the Respondents were concerned as to their legal entitlement to grant the licence, notwithstanding that they had already issued licences on a similar basis to a number of smaller theatres.

6

I should say at the outset that I have the utmost sympathy with the Respondents in having legal doubts. The questions at issue in this case are by no means capable of easy resolution. I have had considerable difficulty in answering them.

7

Nevertheless, in my view, the Applicant was entitled to a decision one way or the other within a reasonable time. The Respondents quite obviously did not make such decision within any time span that could be regarded as reasonable.

8

Accordingly, the Applicant is entitled to treat the delay as a refusal and to seek an Order of Mandamus directing the granting of the licence. To obtain that Order however, the Applicant must establish to this Court's satisfaction that it is legally entitled to the licence.

9

In this connection three issues of law fall to be determined by this Court. They are:

10

1. Has Section 7 of the Excise Act 1835 been impliedly repealed by the Licensing Act 1872 insofar as the Section applies to anything other than "theatres" within the meaning of the 1872 Act?

11

2. If not, is the Point a "place of public entertainment" within the meaning of Section 7 of the Excise Act1835?

12

3. If the answer to both of those questions is in the affirmative, is the Point a place of public entertainment licensed by the District Court so as to bring it within the Section?

13

I will now deal with each of these questions in turn. The importance of the first question arises in part from the Dublin Stage Regulation Act 1786. Section 1 of that Act empowered the King to grant Letters Patent to theatres in the City and County of Dublin. Section 2 of the Act provided as follows:-

"And be it further enacted by the authority aforesaid that from and after the first day of June one thousandseven hundred and eighty six no person or persons shall, for hire, gain, or any kind of reward whatsoever or howsoever, act, represent, or perform, or cause to be acted, represented, or performed, any interlude, tragedy, comedy, prelude, opera, burletta, play, farce, pantomime or any part or parts therein, on any stage, or in any theatre, house, booth, tent, or other place within the said City of Dublin, or the Liberties or suburbs, or County thereof, or within the County of Dublin, under any colour or pretence whatsoever, save and except in such theatre or playhouse as shall be so established or kept by Letters Patent as aforesaid, under the penalty of forfeiting the sum of three hundred pounds sterling for every such offence...".

14

Having regard to the terms of that Section and to later provisions in the 1786 Act, I think that the Act was intended to apply only to theatres in the narrow sense of the word, that is to say, a place where on a regular and reasonably continuous basis plays, operas and pantomimes are performed. It would seem to me that the word "theatre" in the 1835 Act has a similar connotation having regard to the reference to "other place of public entertainment". Having regard to the range of diverse entertainments carried on in the Point, I have come to the conclusion that it is not a "theatre" within the meaning of either the 1786 or the 1835 Acts. I turn now to the Licensing Act 1872. That was an Act which applied to both England and Ireland. Special provisions relating to Ireland only are contained in Section77 of the Act. I will be returning to these as they are highly relevant to this application. Broadly speaking, the scheme of the 1872 Act was to prohibit, subject to very Limited exceptions, the sale of intoxicating liquor in premises in respect of which there was not an Excise Licence issued pursuant to a licence or certificate of the Licensing Justices. Section 72 listed as one of the express exceptions

"the sale of intoxicating liquor by proprietors of theatres in pursuance of the Acts in that behalf".

15

This provision was considered by the English High Court in The Queen .v. Commissioners of Inland Revenue ( ...

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