Re Dunne

JurisdictionIreland
Judgment Date26 April 1968
Date26 April 1968
CourtSupreme Court
Application of Dunne
In the Matter of the Licensing Acts, 1833-1962, and in the Matter of Section 19 of the Intoxicating Liquor Act, 1960—THOMAS J. DUNNE, Applicant(1)

Supreme Court.

Licensing Acts - Hotel - Public bar - Application for extinction of licence - Procedure - Statute - Interpretation - "May order" - Circuit Court - Jurisdiction - Appeal from District Court - Amendment - Rules of the Circuit Court, 1950 (S.I. No. 179 of 1950), Or. 57 - Intoxicating Liquor Act, 1960 (No. 18 of 1960), s. 19.

The applicant was the holder of a licence for the sale of intoxicating liquor in his hotel and he wanted to install a public bar in the hotel. Sub-sect. 2 of s. 19 of the Intoxicating Liquor Act, 1960, states that it shall be lawful to have a public bar in a hotel if the District Court has made an order pursuant to sub-s. 1 of that section. The said sub-s. 1 provides that the District Court"may order" the extinguishment of an appropriate seven-day licence if an applicant shows to the satisfaction of the Court that he has procured the consent of the holder thereof to its extinguishment. Accordingly the applicant obtained the necessary consent of the holder of an appropriate seven-day licence to its extinguishment and then duly applied to the District Court for an order pursuant to sub-s. 1 of s. 19 of the Act of 1960, but his application was refused because a similar application by the applicant in respect of the same seven-day licence had already boon refused by the High Court (in other proceedings) on the ground that thoro was no evidence of a demand by the public for a public bar in the hotel,

The applicant appealed to the Circuit Court and, as the seven-day licence had not been renewed before the hearing of the appeal, he sought the leave of the Circuit Court for an amendment substituting another consent to the extinguishment of another seven-day licence as the basis of his application. The Circuit Court judge stated a Case for the determination by the Supreme Court of the following questions:—(a) Did the Circuit Court have jurisdiction to allow the amendment sought by the applicant? (b) Was the order of the High Court a bar to the granting of the application? (c) Did the Circuit Court have a discretion in the matter enabling it to consider the desirability of there being a public bar in the applicant's hotel?

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Walsh and FitzGerald JJ.), 1, that where a statute employs the words "may order" to confer on a court jurisdiction, subject to the fulfilment by a defined applicant of certain statutory conditions precedent, to make an order which would result in the applicant acquiring a right or benefit by the provisions of the statute, the said words should be construed as imposing on the court an obligation to make such order once the court is satisfied that those conditions have been fulfilled by the applicant,

Dolan v. Neligan [1967] I.R. 247 considered.

2. Accordingly, as the High Court had no discretion to refuse, on the ground of no public demand, to make the order sought by the applicant under s. 19 of the Act of 1960 in the other proceedings, the order of the High Court in those proceedings did not constitute a bar to the making of an order under that section by the Circuit Court.

3. That, as the applicant's appeal from the District Court to the Circuit Court was a re-hearing of his application for the extinguishment of a particular licence, the powers of amendment of the Circuit Court did not extend to allowing an amendment which was designed to replace the re-hearing of the original application by a hearing of a new application for the extinguishment of another licence.

4. An application pursuant to sub-s. 1 [or sub-s. 3] of s. 19 of the Act of 1960 is properly made ex parte.

Case Stated.

During the hearing of an appeal by the applicant to the Circuit Court from a refusal of the District Court to make an order pursuant to sub-s. 1 of s. 19 of the Intoxicating Liquor Act, 1960, His Honour Judge McGivern stated a Case pursuant to s. 16 of the Courts of Justice Act, 1947, posing certain questions of law for determination by the Supreme Court. The Case was stated as follows:—

"The following facts were proved or admitted.

1. The applicant is the owner of the premises known as the Morehampton Hotel, Morehampton Road, Donnybrook, which are licensed as a hotel pursuant to an order of the High Court made by The Hon. Mr. Justice Henchy, on the 14th October, 1965, on appeal from the Circuit Court.

2. On the making of the application, heard by Mr. Justice Henchy, for the granting of a new hotel licence applicable to the premises, the applicant at the same time applied pursuant to the provisions of s. 19, sub-s. 3, of the Intoxicating Liquor Act, 1960, to extinguish a seven-day ordinary publican's licence attaching to the premises 22 Main Street, Carrick-on-Suir in the County of Tipperary, so that it should be lawful for the said applicant, notwithstanding anything contained in the Licensing (Ireland) Act, 1902, to have in the said hotel a public bar for the sale of intoxicating liquor. This application was refused by the order of Mr. Justice Henchy.

A copy of the said order of Mr. Justice Henchy is annexed to this case.

3. The applicant applied under s. 19, sub-s. 1, of the Intoxicating Liquor Act, 1960, to the District Court by Notice of Application dated the 13th June, 1967, for an order extinguishing the ordinary seven-day licence attached to the premises 22 Main Street, Carrick-on-Suir in the County of Tipperary, so that it should be lawful for him, notwithstanding anything contained in the Licensing (Ireland) Act, 1902, to have in the said hotel a public bar for the sale of intoxicating liquor. Notice of the said application was given to the Chief Clerk of the Dublin Metropolitan District Court, and to the Superintendent of the Gárda Síochána, Donnybrook Station. A copy of the Notice of Application is annexed to this case.

4. On the matter coming before the learned President of the District Court, he requested the applicant to give notice of the application to certain persons, or their successors, who had objected to the granting of a hotel licence to the applicant before Mr. Justice Henchy and in pursuance of that suggestion notice by registered post of the making of the application and the date of the adjourned hearing thereof before the President of the District Court was given to the following firms or persons:—

Patrick Walker & Co., Leeson Street, Dublin. Publican.
Michael O'Brien, Sussex Terrace, Dublin. Publican.
Patrick O'Shea, Morehampton Road, Dublin. Publican.
Robert Kelly, Donnybrook Road, Dublin. Publican.
Andrew Ryan, 36 Upper Baggot Street, Dublin 2. Publican.
Bernard McCluskey, a successor to Thomas Reddin, Morehampton Road, Dublin. Publican.
Rev. Cyril McCaffrey, Superior, Gayfield Community, Morehampton Road, Dublin.

5. Bernard McCluskey, who had purchased the publican's business and premises formerly owned by Thomas Reddin (who had been an objector to the applicant's original application for an hotel licence and an order under s. 19, sub-s. 3, of the Act of 1960), was represented and appeared as an objector before the President of the District Court and before me. None of the other previous objectors appeared or made any objection.

6. The Gárda Síochána have no objection to the making of an order on foot of this application.

7. A licence, attached to 22 Main Street, Carrick-on-Suir in the County of Tipperary, is in the name of Thomas P. Burke and the applicant has and had the right, by agreement with the said Thomas P. Burke, to have the same extinguished. The said licence was an existing licence at the time of the hearing of this case before the District Court in July and August of 1967 and came up for renewal in September of 1967. The annual licensing sessions in respect of this licence had been adjourned, and still stood adjourned, at the hearing of the appeal by me.

8. Bernard McCluskey, the objector before me, had objected to the renewal of the said licence attached to 22 Main Street, Carrick-on-Suir in the County of Tipperary, upon the grounds that licensed trade was not being carried on in the said premises.

9. This case came before me on the 1st day of November, 1967, the 10th day of November and the 21st day of November, 1967. On the 10th day of November, 1967, the applicant concluded his evidence and the objector applied to me to dismiss the application.

10. Evidence was adduced before me by the applicant that the premises known as the Morehampton Hotel in their present form had opened for business at the beginning of the year...

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