Power Supermarkets Ltd, Application of

• Jurisdiction: Ireland
• Judge: WALSH J.
• Judgment Date: 08 March 1988
• Neutral Citation: 1988 WJSC-SC 589
• Docket Number: [1986 No. 188 S.C.],(188/86)
• Court: Supreme Court
• Date: 08 March 1988

1988 WJSC-SC 589

THE SUPREME COURT

Finlay C.J.

Walsh J.

Griffin J.

Hederman J.

McCarthy J.

(188/86)

POWER SUPERMARKETS LTD v. O'SHEA & ORS

IN THE MATTER OF THE LICENSING ACTS, 1883–1983

THE LICENSING ACT, 1872, SECTION 82

THE BEER RETAILERS AND SPIRIT GROCERS RETAIL

LICENSING (IRELAND) ACT, 1900, SECTION 1

THE LICENSING (IRELAND) ACT, 1902, SECTION 4

THE BEER HOUSES (IRELAND) ACT, 1864, SECTION 3

THE BEER LICENCES (IRELAND) ACT, 1877, SECTION 2

AND IN THE MATTER OF AN APPLICATION BY POWER

SUPERMARKETS LIMITED OF GRESHAM HOUSE,

MARINE ROAD, DUN LAOGHAIRE, COUNTY DUBLIN

BETWEEN/

POWER SUPERMARKETS LIMITED

Applicants

and

SEAMUS O'SHEA & OTHERS

Objectors

Citations:

COURTS OF JUSTICE ACT 1947 S16

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S48

LICENSING (IRL) ACT 1902 S2

INTOXICATING LIQUOR ACT 1927 S62

COLLINS, R V JUSTICES OF DONEGAL 1903 2 IR 533

BEER RETAILERS & SPIRIT GROCERS RETAIL LICENCES (IRL) ACT 1900 S1

INTOXICATING LIQUOR ACT 1960 S13(1)(ii)

EAST DONEGAL CO-OP V AG 1970 IR 317

SHARP V WAKEFIELD & ORS 1891 AC 173

HENNESSY, STATE V CUMMINS 1976 IR 239

SPIRITS (IRL) ACT 1855 S1

Synopsis:

LICENSING ACTS

Licence

Off-licence - Certificate - Statutory proofs - Judge's discretion - The applicant company was the owner of a supermarket in New Street, Killarney - On 17/7/84 the applicants obtained from the District Court a certificate authorising an excise licence for the sale of intoxicating liquor off their premises to be issued to them - The applicants had furnished an on-licence for extinguishment and had satisfied all the requirements of s.4 of the Act of 1902 (as amended) - The application had been opposed by eight objectors - Each of the objectors held an on-licence for his premises in Killarney but each of them, nevertheless, conducted only an off-licence business at his premises - The objectors appealed to the Circuit Court from the order of the District Court - The Circuit Court judge was satisfied that the applicants had discharged the onus of proving all statutory proofs, but he was also satisfied that the applicants" business was having a very damaging effect on the trades of the objectors - He stated a Case for the opinion of the High Court and asked whether a refusal of the application would be a proper exercise of his discretion, and whether the extinguishment of an on- licence in respect of the issue of a certificate for an off- licence was permissible - The objectors relied on the provisions of s.1 of the Act of 1900 which state that, notwithstanding anything in any Act, the District Justice shall be at liberty, in his free and unqualified discretion, either to refuse such certificate for a new licence for the sale of liquor off the premises on any grounds appearing to him to be sufficient or to grant the same - Held that the discretion vested in the District Justice and the Circuit Court judge was not an arbitrary one but was a discretion which had to be exercised in accordance with the objectives of the licensing code: ~East Donegal Co-Operative v. The Attorney General~ [1970] I.R. 317 and ~The State (Hennessy) v. Commons~ [1976] I.R. 238 considered - Held that the protection of existing licensed businesses was not one of the objectives of that code, except where express provision was made to that effect - Held, accordingly, that a refusal of the application in such circumstances would not be a proper exercise of the judge's discretion - Held that the extinguishment of an on-licence provided by the applicants was a permissible substitution under s.4 of the Act of 1902 for the off-licence to be issued pursuant to the certificate sought by them - Beer Retailers & Spirit Grocers Retail Licensing (Ireland) Act, 1900, s.1 - Licensing (Ireland) Act, 1902, ss.2, 4 - (188/86 - Supreme Court - 8/3/88)

|Power Supermarkets v. O'Shea|

WORDS AND PHRASES

"Unqualified discretion" Context - Licensing code - Objectives of code - Judge's discretion - Limitation on exercise of discretion - ~See~ Licensing Acts, licence - (188/86 - Supreme Court - 8/3/88)

|Power Supermarkets v. O'Shea|

1 JUDGMENT OF WALSH J. delivered the 8th day of March 1988 [NEM, DISS,]

2 This was a case stated by His Honour Judge Gleeson pursuant to s. 16 of the Courts of Justice Act, 1947, as carried forward and made applicable to the Circuit Court by s. 48 of the Courts (Supplemental Provisions) Act, 1961.Power Supermarkets Limited were granted an off-licence for their supermarket at New Street, Killarney in the County of Kerry by the District Justice on the 17th July 1984. The objectors who are eight of the thirty seven publicans in Killarney have appealed to the Circuit Court against the granting of this licence. The eight objectors who although they are the owners of full on-licences, which means that they can sell for consumption on the premises or for consumption off the premises, appear to devote their business exclusively, or almost exclusively, to the conduct of off-licence business unlike their twenty nine other fellow publicans in Killarney who conduct both businesses. None of the eight objectors appears ever to have sought to have his licence reduced from an on-licence to an off-licence and therefore may be assumed to have come to the conclusion that it is to their economic advantage to conduct only an off-licence business while still apparently being successful in having their on-licence renewed at every annual licensing session. Therefore while they remain the possessors of on-licences they are free at anytime they wish to return to the business of selling intoxicating liquor on the premises as well as conducting their off-licence business. The Circuit Judge has held as a fact that these eight objectors trade exclusively as off-licences but in this Court Counsel on their behalf indicated that occasionally they may be persuaded to sell some intoxicating liquor for consumption on the premises. However the fact remains that for the moment at least they are the holders of on-licences and are free to return to that business at anytime while they are holding such licences.

3 Power Supermarkets Limited own the well-known national chain of...