State (Doyle) v Carr
| Jurisdiction | Ireland |
| Judgment Date | 02 June 1970 |
| Date | 02 June 1970 |
| Docket Number | [1970. No. 87 SS.] |
| Court | High Court |
Licensing Acts - Licence - Interim transfer - Evidence - Examination on oath - Statute - Interpretation - Whether enactment mandatory or directory - - Certiorari - Court's discretion - Whether order sought by a person aggrieved - District Court Rules, 1948 (S.R. & O. 1947 No. 431), r. 97 (1) - Public House (Ireland) Act, 1855 (18 & 19 Vict. c. 114), s. 1.
Certiorari.
The facts have been summarised in the head-note and are stated in the judgment of Henchy J., post.
Section 1 of the Public House (Ireland) Act, 1855, provides that "Upon the death of any person duly licensed to carry on the business of a licensed victualler, and to sell exciseable liquors by retail, to be consumed on the premises, in Ireland, . . . or the sale of or assignment of his interest therein by operation of law or otherwise, it shall be lawful for the Justices of the Peace . . . (if they shall think proper so to do, after examining upon oath all necessary parties,) to transfer, by endorsement thereon, any and every such licence as aforesaid then in force . . ."
Bernard Electrical Holdings Ltd. were the purchasers of licensed premises at No. 8 Main Street, Bray, in the County of Wicklow and on the 19th September, 1969, their nominee, Trevor J. Fallon, was granted by the District Court a transfer of the licence for the sale of intoxicating liquors that was attached to the purchased premises. No examination on oath took place at the hearing of the nominee's application for a transfer of the licence.
The prosecutor, Daniel Doyle, obtained a conditional order of certiorari in the High Court with a view to having the order of the District Court quashed and that order was served on District Justice J. Carr, District Justice J.J. Delap and on the purchaser's nominee. Cause was shown by the nominee only. The prosecutor then applied for an order absolute notwithstanding the cause shown.
Section 1 of the Public House (Ireland) Act, 1855, provides that upon the sale of premises licensed for the sale of exciseable liquors it shall be lawful for a District Justice, after examining upon oath all necessary parties, to transfer the licence to the purchaser, and in that event the section authorises the purchaser to carry on the licensed business at such premises until the next annual licensing session of the District Court. A company bought licensed premises and its nominee applied to the District Court and was granted an interim transfer of the licence attached to the premises; neither the nominee nor any other person was examined upon oath at the hearing of the application. No licensed trade was carried on by the purchaser at the licensed premises. The prosecutor, being a publican who carried on a licensed trade in the vicinity of the purchased premises, obtained a conditional order of certiorari in the High Court and then applied, notwithstanding cause shown, for an order absolute quashing the order of the District Court that had granted the application for an interim transfer of the licence attached to the purchased premises.
Held by Henchy J., in allowing the cause shown and discharging the conditional order, 1, that the statutory provision, requiring the examination of necessary parties upon oath, was a mandatory requirement and that the District Justice had acted in excess of his jurisdiction in purporting to transfer a licence without having complied with the statutory requirement.
2. That in the particular circumstances the prosecutor was not a person aggrieved at the order of the District Justice and, therefore, the High Court had an unfettered discretion in the matter, which discretion should not be exercised in favour of the prosecutor as no public good would be served by quashing an order relating to a licence which had since expired.
The State (Kerry County Council) v. Minister for Local Government [1933] I.R. 517 applied.
Cur. adv. vult.
| Henchy J. :— |
The material facts in this case are not in dispute. In April, 1969, Alexander Findlater & Co. Ltd. sold their licensed premises at No. 8 Main Street, Bray, County...
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