O'Rourke and Flanagan v Grittar
| Jurisdiction | Ireland |
| Judge | Gannon, J.,MR. JUSTICE T.F. ROES.C.SATTING |
| Judgment Date | 31 July 1990 |
| Neutral Citation | 1990 WJSC-HC 2201 |
| Date | 31 July 1990 |
| Docket Number | No. 196 SS/1990 |
| Court | High Court |
1990 WJSC-HC 2201
THE HIGH COURT
BETWEEN:
AND
Citations:
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52
INTOXICATING LIQUOR ACT 1960 S13
INTOXICATING LIQUOR ACT 1960 S13(1)(a)
INTOXICATING LIQUOR ACT 1960 S13(1)(b)
INTOXICATING LIQUOR ACT 1960 S13(2)(a)
INTOXICATING LIQUOR ACT 1960 S13(2)(b)
LICENSING (IRL) ACT 1902 S3
POWERS SUPERMARKET LTD V O'SHEA & ORS 1988 IR 206
LICENSING (IRL) ACT 1902 S2
COLLINS,R V DONEGAL JUSTICES 1903 2 IR 533
LICENSING (IRL) ACT 1902 S4
HENDERSON, R V LOUTH J J 1911 2 IR 312
COLLINS, R V CHAIRMAN & JUSTICES OF CO DONEGAL 1903 2 IR 533
DORRIAN, R V GREER 3 NIJR 302
R V KING 20 QBD 430
INTOXICATING LIQUOR ACT 1943 S21
INTOXICATING LIQUOR ACT 1943 S22
INTOXICATING LIQUOR ACT 1960 S14
INTOXICATING LIQUOR ACT 1960 S17
INTOXICATING LIQUOR ACT 1962 S20
INTOXICATING LIQUOR ACT 1943 S62
LICENSING (IRL) ACT 1902 S2(1)
LICENSING (IRL) ACT 1902 S6
Synopsis:
LICENSING ACTS
New licence
Certificate - Entitlement - Conditions - Compliance - Statute - Interpretation - Judicial origin of phrase used in enactment - Old licences - Extinguishment - New licence to be of same character as old licences - Intoxicating Liquor Act, 1960, s. 13 - Courts (Supplemental Provisions) Act, 1961, s. 52 - (1990/196 - SS - Gannon J. - 31/7/90) - [1995] 1 I.R. 541 - [1990] ILRM 877
|O'Rourke v. Grittar|
WORDS AND PHRASES
"Same character"
Intoxicating liquor - New licence - Certificate - Entitlement - Conditions - Extinguishment of two existing licences - New licence to be of the same character as the existing licences - Intoxicating Liquor Act, 1960, s. 13 - Courts (Supplemental Provisions) Act, 1961, s. 52 - (1990/196 SS - Gannon J. - 31/7/90) - [1995] 1 I.R. 541 - [1990] ILRM 877 - [1991] ILT 127
|O'Rourke v. Grittar|
Judgment of Gannon, J.delivered the 31st day of July 1990.
On the 15th of September 1988 Messrs Grittar, the above named Respondents, applied to District Justice Frank Johnston sitting at Naas District Court for certificates for a spirit retailer's off-licence and a beer retailer's off-licence in respect of a premises at Cork Road, Newbridge, Co. Kildare. The above-named Applicants opposed the application. The District Justice decided to grant the application but was requested by the objectors to state a case for the opinion of the High Court on a point of law pursuant to Section 52 of theCourts (Supplemental Provisions) Act 1961.I presume it is because the objectors are the Appellants that they are referred to in the Case Stated as "Applicants", and for that reason the Applicant Company is described in the Case Stated as "Respondents". The point of law relates to the interpretation and application of Section 13 of the Intoxicating Liquor Act (No. 18) of 1960pursuant to which "the Respondents" made application to the District Justice for such certificates to which "the Applicants" objected. Hereafter I will refer to the Respondent Company as "the Applicant" and to the above-named Applicants as "the objectors". As the application is for such certificate or certificates as would enable the Applicant to obtain an off-licence authorising the retail sale of intoxicating liquor for comsumption off the premises I will assume the application is "for a licence in respect of premises" referred to in Section 13 as the new premises "to which no licence is attached". I make this assumption to avoid any doubt arising from the wording of the Case Stated as to the applicability of Section 13 of the Intoxicating Liquor Act (No. 18) 1960.
Before referring to the section of the Act I will quote from the Case Stated the facts proved or admitted as set out in paragraph 5thereof.
i "(i) The location of the premises the subject of the application is in a rural area in the townland of Moorfield, parish of Morristownbiller, barony of Connell, County of Kildare, in the District Court area herein.
(ii) The rateable valuation of the new premises for which the certificates are required is £900.
(iii) The Respondent, Grittar, is an unlimited incorporated company capable of applying for a certificate and holding a licence, with its registered office at Gresham House, Marine Road, Dun Laoghaire, in the County of Dublin.
(iv) The Applicants are competent objectors.
(v) The two licences, for which the certificates are sought, being the subject of the application here, are a spirit retailer's off-licence and a beer retailer's off-licence.
(vi) The Respondent produced to me two contracts consenting to the extinguishment of:
(a) An ordinary seven day publican's on-licence in the name of Brendan Byrne nominee of Sligo County Council in respect of premises situate at Aclare, Ballymote, in the County of Sligo, and,
(b) An ordinary seven day publican's on-licence in the name of Moya Higgins, in respect of premises at Bridge Street, Cootehill in the County of Cavan.
(vii) I refer to photocopies of the said two licences which together form part of this Case Stated.
(viii) The premises to be licensed consist of the entire of the Supermarket as set forth on the plans lodged with the application, which premises are situate at Cork Road, Newbridge, in the townland of Moorfield, parish of Morristownbiller, barony of Connell and County ofKildare."
Although it was necessary to consider the whole ofSection 13 of the Intoxicating Liquor Act 1960, and indeed other sections, I think it will suffice to quote subsection (1) (a) and (b) and subsection (2) (a) and (b) of that section. They are as follows:
"13-(1) Where a person (in this section referred to as the applicant) duly gives notice of his intention to apply for a licence in respect of premises (in this section referred to as the new premises) to which no licence is attached and, at the proceedings in the Court in relation to such application, the applicant shows to the satisfaction of the Court that -"
(a) in respect of each of two premises (in this section referred to as the existing premises) a licence is in force and in respect of each licence either -
(i) the applicant is the holder thereof, or
(ii) if he is not the holder thereof he has procured the consent of the holder thereof to the extinguishing of the licence if and when a licence in respect of the new premises is granted to the applicant pursuant to this section,
(b) the licences (in this section referred to as the old licences) attached to the existing premises are of the same character,"
a "13-(2) (a) The licence granted in pursuance of thissection shall be of the same character and be subject to the same conditions as the licences attached to the existing premises.
(b) Nothing in the Act of 1902 shall prevent the grant of the newlicence."
The other requirements of subsection (1) prescribe a rateable valuation not less than £10, and that the new premises be not situated in a county or other borough, urban district or a town. The further provisions of subsection (1) give the Court a discretion to prohibit the issue of the new licence on grounds relative to the "fitness" of the applicant, of the premises, or of the neighbourhood, or on the grounds of unreasonable detriment to the business of neighbouring licensed premises. The other requirements of subsection (2) are that the two old licences be extinguished, that the latest two of convictions still recorded on either of the old licences, if any, when the Applicant was holder thereof, be deemed recorded on the new licence, and that the premises to which the extinguished licence is attached shall be deemed never to have been licensed.
Having heard submissions by the Solicitors for the parties and being referred to the then recently delivered but unreported Judgment of the Supreme Court in Powers Supermarket Limited v. O'Shea andothers District Justice Johnston adjourned the matter to the 26th of October 1988 when he gave the decision which led to this Case Stated. At paragraph 8 of the Case Stated he says as follows:
i "(i) On 26th October 1988, I stated that I had considered the matter and that in my opinion, two Ordinary Publican's Seven Day On-Licences, both ofwhich entitled the Publican to have On and Off Licences sales, were sufficient, and indeed greater, for the purposes of the application for one Off-Licence, and that in my opinion, they were suitable and came within the provisions of Section 13 of the Intoxicating Liquor Act 1960.
(ii) Mr. White submitted that the Licence to be granted must be of the same character and subject to the same conditions, as the Licences to be extinguished.
(iii) I did not accept Mr. White's submission. I considered that in fact two Licences, both of which were greater, had been tendered, as both enabled the Holders to have On and Off licences sales, and in my opinion, they were sufficient.
(iv) I was requested to state a case to the High Court."
In paragraph 9 he goes on to state
"9 The opinion of the High Court is sought on the correct interpretation of Section 13 (1) (b) and 13 (2) (a) of the Intoxicating Liquor Act 1960to this case."
Because of the seeming indifference to the use of the singular and the plural in referece to the word "licence" in the Case Stated I will defer dealing with the questions set out in the case at subparagraphs (a), (b), (c), (d) and (e) of paragraph 9 of the CaseStated.
In this Court Mrs. Denham and Miss O'Kennedy argued the case for the objectors as their clients had sought the Case Stated. Mr. Landy with whom Mr. Durnin appeared presented with characteristic economy of argument the case for the applicantfor the licence. Both parties relied on the Supreme Court decision...
To continue reading
Request your trial