State (Attorney General) v Judge Durcan

• Jurisdiction: Ireland
• Judgment Date: 23 April 1964
• Date: 23 April 1964
• Court: High Court

The State (Attorney General) v. Judge Durcan.

THE STATE (at the Prosecution of THE ATTORNEY GENERAL)

and

Circuit Court Judge JOHN DURCAN, the Judge of the Circuit Court Western Circuit. In the Matter of the Courts (Supplemental Provisions) Acts, 1961 and 1962, and in the Matter of the Courts of Justice Acts, 1924 to 1961, and in the Matter of the Licensing Acts, 1833 to 1962

Certiorari - Circuit Court order - Licensing - Application for certificate for new on-licence - Jurisdiction of Circuit Court in applications for new on-licences conferred by statute dealing generally with jurisdiction of Courts - Specific provision in separate statute prohibiting grant of licence except for premises licensed within specified period - Certificate granted on erroneous finding that premises licensed within such period - Whether Circuit Court acted in excess of jurisdiction - Whether an erroneous finding by a Court of limited jurisdiction as to the existence of a fact upon which its jurisdiction depended - Licensing (Ireland) Act, 1902 (2 Edw. 7, c. 18), s. 2 - Courts (Supplemental Provisions) Act, 1961 (No. 39 of 1961), s. 24, sub-s. 2.

Sect. 24, sub-s. 2, of the Courts (Supplemental Provisions) Act, 1961, confers on the Circuit Court jurisdiction in all cases of applications for new on-licences. Sect. 2 of the Licensing (Ireland) Act, 1902 (as amended) expressly prohibits the grant of a licence for the, sale of intoxicating liquors on premises except (inter alia) for premises which were licensed within a specified period of time. F. applied to the Circuit Court for the issue of a certificate, declaring him to be entitled to receive a new licence for the sale of intoxicating liquors on certain premises owned by him but not then licensed. He relied upon his application being within the terms of the said exception to s. 2 and adduced evidence to establish that his premises had been licensed within the relevant period of time. That evidence was accepted by the Circuit Court judge as establishing that the premises had been licensed within the relevant period and on the 1st May, 1963, he made, an order declaring F.entitled to the certificate. The certificate was issued to F. on the 23rd May, 1963, and subsequently he delivered it, with other relevant documents and the appropriate fee, to the proper excise authorities and requested the grant to him of the licence mentioned in the certificate. The excise authorities refused to grant the licence on the ground, which was established in these proceedings, that the premises mentioned in the certificate had not been licensed within the relevant period of time. The Attorney General thereupon obtained a conditional order of certiorari, directed to the Circuit Court Judge, to send his order of the 1st May, 1963, and the certificate of the 23rd May, 1963, before the High Court for the purpose of being quashed on the ground that they had been made without and in excess of jurisdiction. Cause was shown by F.At the hearing of the prosecutor's application to make absolute the conditional order, notwithstanding the cause shown, it was

Held by Davitt P. that the cause shown should be allowed and the conditional order discharged because, even if the Circuit Court Judge erred in holding that the premises had been licensed within the relevant period, such error was made in the course of the exercise by him of the unrestricted jurisdiction conferred on him by the provisions of s. 24, sub-s. 2, of the Courts (Supplemental Provisions) Act, 1961, and, accordingly, could not be questioned on certiorari.

The State (Davidson) v. Farrell and Another [1960] I. R. 438 considered.

Motion on Notice.

Application to make absolute, notwithstanding cause shown, a conditional order of certiorari, directed to the Circuit Court Judge of the Western Circuit (His Honour Judge Durcan), to send before the High Court for the purpose of being quashed his order of the 1st May, 1963, and the certificate, dated the 23rd May, 1963, issued on foot of the said order, declaring the respondent, Martin Flannery, entitled to receive a certificate for a new seven-day excise on-licence in respect of certain premises at Ballinrobe. Co. Mayo.

The facts, which have been summarised in the head-note, appear fully in the judgment of Davitt P., post.

Cur. adv. vult.

Davitt P. :—

In these proceedings the Attorney General seeks to set aside an order made on 1st May last by His Honour Judge Durcan declaring one, Martin Flannery, entitled to receive a certificate for a new seven-day excise on-licence in respect of certain premises in Ballinrobe, County Mayo. The granting of such licences is a matter for the Revenue authorities; and the procedure for obtaining one is governed by ss. 2 to 6 inclusive of the Licensing (Ireland) Act, 1833, as amended and adapted. Summarised shortly, the procedure requires that a person

seeking such a licence must apply to the Circuit Court, on notice to the appropriate County Registrar and to the appropriate officer of the Gárda Síochána, for a certificate entitling him to receive the licence. If successful, the applicant obtains an order directing the County Registrar to issue the certificate. The County Registrar issues the certificate in a statutory form and the applicant then produces it, together with the appropriate licence duty, to the proper officer of excise who is authorised to grant him the licence.

The licence so granted enures for only one year. It is, under the provisions of s. 11 of the Spirits (Ireland) Act, 1854, and s. 1 of the Licensing (Ireland) Act, 1855, as amended and adapted, renewable annually upon the certificate of the District Justice in whose district the licensed premises are situate, subject to the good character of the licensee and to the peaceable and orderly manner in which the premises have been conducted during the previous year.

The jurisdiction to grant a certificate for a new licence was formerly vested in the Justices at Quarter Sessions and the certificate was issued by the Clerk of the Peace. The jurisdiction to grant a certificate for renewal was formerly vested in the Justices at Petty Sessions.

Sect. 2 of the Licensing (Ireland) Act, 1902, as amended by s. 23 of the Intoxicating Liquor Act, 1960, in so far as it is material in the present proceedings, provides as follows:—

"From and after the passing of this Act no licence shall be granted for the sale of intoxicating liquors whether for consumption on or off the premises, except:

(1) for premises . . . which were licensed at any time during the period of five years immediately before the day on which notice of an application for the grant of a certificate entitling the holder to receive a licence in respect of the premises is given, pursuant to rules of court, to the appropriate County Registrar . . ."

The facts of the present matter are as follows: Mr. Martin Flannery purchased the lessee's interest in certain leasehold premises in Main Street, Ballinrobe, which were duly assigned to him by deed of the 12th December, 1957. Part of the premises, the ground floor, had been sub-let from time to time and had been licensed. The last sub-tenant and licensee was Elizabeth Cooney who entered in 1936 and held a licence until 1956. In July, 1962, Mr. Flannery instructed his solicitors (Messrs. Maguire and Brennan, of Claremorris) to take the necessary steps to apply for a new licence in respect of the premises. The County Registrar was duly served with the requisite notice on the 27th September, 1962, and all the other preliminary steps necessary were duly taken. In order for the premises to qualify for the grant of a new licence it was necessary that they should have been licensed at some time within the five years immediately preceding the 27th September, 1962, i.e., at some time on or after the 27th September, 1957. On the 10th July Messrs. Maguire and Brennan wrote to "The Customs and Excise, Custom House, Galway,"stating that they were trying to ascertain if it would be possible to revive the seven-day licence attached to the premises in question which had been allowed to lapse within the last five years, the licensee being Elizabeth Cooney. They asked to be informed whether in fact the licence had existed within the last five years and to be furnished with the appropriate certificate. On the 17th July they received a reply from S. O'Cuisin, Collector, stating that, as no doubt Messrs. Maguire and Brennan were aware, registers of...