O'Rourke v Grittar

• Jurisdiction: Ireland
• Judgment Date: 08 February 1995
• Date: 08 February 1995
• Docket Number: [S.C. No. 308 of 1990]
• Court: Supreme Court

High Court

Supreme Court

[S.C. No. 308 of 1990]

O'Rourke v. Grittar

In the Matter of the Summary Jurisdiction Act, 1857, and in the Matter of the Courts (Supplemental Provisions) Act, 1961, and in the Matter of s. 13 of the Intoxicating Liquor Act

1960.

Thomas O'Rourke and Thomas Flanagan

Applicants

and

Grittar

Respondent

Cases mentioned in this report:—

Application of Power Supermarkets Ltd. [1988] I.R. 206.

The King (Collins) v. Justices of Donegal [1903] 2 I.R. 533.

The King (Henderson) v. Justices of Louth [1911] 2 I.R. 312.

The Queen v. King (1888) 20 Q.B.D. 430.

Rex (Dorrian) v. Greer (1903) 3 N.I.J.R. 302.

Licensing - Intoxicating liquor - Application for certificate for new off-licence - Extinguishment of existing on-licences - Whether off-licence may be granted in lieu of extinguishment of on-licences - Whether off-licence "of the same character"as an on-licence - Intoxicating Liquor Act, 1960 (No. 18), s. 13, sub-s. 1 (a) and (b) and s. 13, sub-s. 2(b).

Case stated.

The facts have been summarised in the headnote, and are fully set out in the judgments, infra.

On the 15th September, 1988, the respondent applied to the District Court pursuant to s. 13 of the Intoxicating Liquor Act, 1960, for certificates entitling it to receive a spirit retailer's off-licence and a beer retailer's off-licence in respect of a premises situated in Newbridge, County Kildare. On the application of the applicants the District Court Judge stated a case for the opinion of the High Court pursuant to s. 52 of the Courts (Supplemental Provisions) Act, 1961. The questions of law for the opinion of the High Court were as follows:—

• 1. Are the two ordinary publican's seven-day on-licences offered by the respondent herein "of the same character", as required by s. 13 of the Intoxicating Liquor Act, 1960, as the new spirit retailer's off-licence and the new beer retailer's off-licence applied for by the respondent?

• 2. Are the new spirit retailer's off-licence and the new beer retailer's off-licence applied for by the respondent "of the same character"and subject to the same conditions as the two ordinary publican's seven-day on-licences attached to the two existing premises?

• 3. Is it correct in law for the respondent to proffer two ordinary publican's seven-day on-licences for extinguishment in an application for a new spirit retailer's off-licence and a beer retailer's off-licence pursuant to s. 13 of the Intoxicating Liquor Act, 1960?

• 4. May I accept the two ordinary publican's seven-day on-licences proffered by the respondent herein, for the extinguishment, in its application under s. 13 of the Intoxicating Liquor Act, 1960, for a new spirit retailer's off-licence and a new beer retailer's off-licence?

• 5. Am I correct in law, in granting a certificate for a new spirit retailer's off-licence and a certificate for a new beer retailer's off-licence to the respondent herein, pursuant to s. 13 of the Intoxicating Liquor Act, 1960, on the extinguishment of two ordinary publican's seven-day on-licences?

The case stated was signed by Francis Johnson, a justice of the District Court, on the 20th March, 1990. The case stated was heard by the High Court (Gannon J.) on the 14th June, 1990.

The respondent appealed to the Supreme Court by notice of appeal dated the 21st September, 1990. The grounds of appeal are set out in the judgment of Hamilton C.J., infra.

The appeal was heard by the Supreme Court (Hamilton C.J., O Flaherty and Blayney JJ.) on the 23rd January, 1995.

Section 1 of the Intoxicating Liquor Act, 1960, provides, inter alia, as follows:—

"'on-licence' means a licence for the sale of intoxicating liquor for consumption either on or off the premises; . . .

'off-licence' means a licence for the sale of intoxicating liquor for consumption off the premises."

Section 13 of the Act of 1960, provides, inter alia, as follows:—

"(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) attaching to the existing premises are of the same character . . .

the Court shall . . . cause a certificate to be given to the applicant entitling him to receive a licence in respect of the new premises . . .

(2) (a) The licence granted in pursuance of this section shall be of the same character and be subject to the same conditions as the licences attaching to the existing premises."

The respondent applied to the District Court pursuant to s. 13 of the Act of 1960 for such certificates as would enable it to apply for a spirit retailer's off-licence and a beer retailer's off-licence. In support of its application it tendered agreements consenting to the extinguishment of two ordinary publican's seven-day on-licences. The judge granted the application, ruling that, notwithstanding the fact that the licences tendered and those applied for were not identical, the tendering of the publican's on-licences satisfied the requirements of s. 13, sub-s. 1 of the Act having regard to the more comprehensive nature of those licences.

On the application of the applicants, who objected to the respondent's application, the judge stated a case for the opinion of the High Court pursuant to s. 52 of the Courts (Supplemental Provisions) Act, 1961. The question of law for the opinion of the High Court was, inter alia, whether two ordinary publicans' seven-day on-licences were, for the purposes of s. 13, sub-s. 1 of the Act of 1960, of the same character as a new spirit retailer's off-licence

Held by Gannon J., in answering the case stated in the negative and in remitting the matter to the District Court with a direction that the certificate for which the respondent had applied be refused, 1, that s. 13 of the Act of 1960 required the licences to be extinguished to be of the same character as the licence sought, and that accordingly, the surrender of two publican's licences did not fulfil the conditions for the grant of a new spirit retailer's off-licence, notwithstanding the more extensive character of the publican's licence.

The King (Collins) v. Justices of Donegal [1903] 2 I.R. 533; The King (Henderson) v. Justices of Louth [1911] 2 I.R. 312 and Application of Power Supermarkets Ltd.[1988] I.R. 206 considered.

The respondent appealed to the Supreme Court where it was submitted on behalf of the respondent, inter alia, that the general policy of the licensing code was to limit the number of licences for the sale of intoxicating liquor, whether for consumption on or off the premises; that the proffering for extinction of two publican's on-licences inlieu of the grant of an off-licence was in accordance with that policy; and that, because the holder of an on-licence was entitled to sell intoxicating liquor for consumption off, as well as on, the premises, an on-licence must be deemed to be of the same character as an off-licence for the purposes of s. 13 of the Act of 1960.

Held by the Supreme Court (Hamilton C.J. and Blayney J.; O Flaherty J. dissenting), in dismissing the appeal, 1, that having regard to the provisions of s. 13 of the Act of 1960, it was a fundamental requirement that the licences to be extinguished must be of the same character as the licence sought.

Per Blayney J.: That while the likely aim of the legislature in enacting s. 13 of the Act of 1960 was to prevent the granting of an on-licence in substitution for two off-licences, which was the opposite of what the respondent was seeking to achieve, s. 13 of the Act of 1960 must be construed in accordance with its terms.

2. That an on-licence was completely different in character from an off-licence, and that, accordingly, the proffering of two on-licences did not satisfy the requirements contained in the provisions of s. 13, sub-s. 1 of the Act of 1960.

The King (Collins) v. Justices of Donegal [1903] 2 I.R. 533 and The King (Henderson) v. Justices of Louth [1911] 2 I.R. 312 considered; Application of Power Supermarkets Ltd.[1988] I.R. 206 distinguished.

Per O'Flaherty J., dissenting: That the clear policy of s. 13 of the Intoxicating Liquor Act, 1960, was to encourage the extinguishment of as many redundant publican's licences as possible; that it should, accordingly, be regarded as implicit in the legislative intent that the greater licence be deemed to include the lesser; and that an on-licence had a dual character such that on the extinguishment of two such licences it should be possible to obtain an off-licence.

Dictum of Palles C.B. in Rex (Dorrian) v. Greer (1903) 3 N.I.J.R. 302; The King (Collins) v. Justices of Donegal [1903] 2 I.R. 533; The King (Henderson) v. Justices of Louth [1911] 2 I.R. 312 and Application of Power Supermarkets Ltd.[1988] I.R. 206 considered.

Cur. adv. vult.

Gannon J.

On the 15th September, 1988, the respondent 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, County Kildare. The applicants opposed the application. The District Justice decided to grant the application but was requested by the applicants to state a case for the opinion of...