State (Hennessy) v Commons

• Jurisdiction: Ireland
• Judge: HENCHY J.,GRIFFIN J.:
• Judgment Date: 29 July 1976
• Neutral Citation: 1975 WJSC-SC 1145
• Docket Number: No. 295 S.S./1975,[1975 No. 295 SS.]
• Court: Supreme Court
• Date: 29 July 1976

1975 WJSC-SC 1145

THE SUPREME COURT

HENCHY J.

GRIFFIN J

KENNY J.

No. 295 S.S./1975

(153/1975)

State (HENNESSY) v. COMMONS (DONNELLY)

AFFIRMING HIGH-2li.7.75

THE STATE (JOHN HENNESSY AHD CHARIOT INNSLTD.)

v.

SUPERINTENDENT J COMMONS

1 JUDGMENT OF HENCHY J.DELIVERED THE 29th JULY 1976

2 This appeal against the order of Finlay P. is taken on one ground and one ground only. It is this that it was wrongly held that the District Justice had no power or discretion to refuse the interim transfer of the licence to the nominee of Chariot Inns Ltd, when it had been established that a director and part owner of that company was a disqualifiedperson.

3 For the reasons given in the Judgment of the President.of the High Court I agree with his conclusion that the character or personal suitability of the applicant or of those for whom he acts is not a factor to be taken into account in deciding whether an interim transfer should be granted. I would therefore dismiss this appeal.

4 Because the applicant for the interim transfer is the nominee of the company and not the company, no question arises as to whether the company itself could apply for the transfer. No wish or intention on the part of the company to apply for a transfer of the licence to it rather than to its nominee has been expressed, so Ifeel it would be merely an exercise in the hypothetical to deal with this point.

5 Since Flnlay P. was of the opinion, which I share, that character or personal suitability does not arise on an application for an interim transfer, he did not express any opinion - which would necessarily be obiter - as to whose character or suitability should be considered if it did arise. I likewise refrain from expressing an opinion on this point, for two reasons. Firstly, as the point has not been dealt with in the judgment appealed against and as the sole ground of appeal relied on does not call for a ruling on it, I do not feel justified while exercising an appellate jurisdiction to decide the point as of first Instance. Secondly, because this point arose only in a subsidiary or peripheral way, it has not been fully argued in this Court. So I do not feel qualified to express a concluded opinion on it. I think it right to say, however, that such argument as we have heard has not persuaded me that in a licensing case where character or personal suitability is in issue, and the applicant is the nominee of an incorporated company or an incorporated company, the inquiry is limited to the character or personal suitability of the nominee or the Incorporated company. I incline to the opinion that such a limitation would defeat a vital part of the policy of the licensing code.

6 JUDGMENT Delivered on the 29th day of July 1976byGRIFFIN J.:

GRIFFIN J.:

7 The net question for determination on the hearing of this appeal is whether on an application to the District Court for a temporary authority to trade, or what is generally known as an ad interim transfer of a licence, pursuant to rule 97(l) of the District Court Rules 1948 (as amended by rule 12 of the District Court Rules 1955), the applicant for the temporary transfer, having given the notice required by rule 98 of the 1948 Rules, need prove more than the need for the transfer arising from one of the circumstances set out in rule 97(1), i.e. the death or incapacity of the former licensee or his removal from the licensed premises, or upon the sale or assignment of his interest in the premises by operation of law or otherwise, and that he is not a person disqualified by law from holding the licence. In his judgment, the learned President of the High Court analysed the provisions of rule 97 and section 1 of the Public House ( Ireland) Act 1855 from which it derived, and contrasted these provisions with those of anumber of the Licensing Acts in which the specific grounds of objection which might be taken were set out. The learned President held that the only three matters on which the District Justice was entitled to exercise his discretion were those set out in rule 97, to which I have already referred, and that the District Justice was not entitled to enquire into or consider the character or suitability of the applicant. In my opinion, his decision was correct and his reasoning unassailable and I agree with his decision and would dismiss this appeal.

8 During the course of the argument, two questions which had not been decided by the learned President, i.e, whether a company can hold a licence, and whether the character or suitability of a director or shareholder of a company can be considered when the certificate of transfer of the licence is applied for at the Annual Licensing District Court, were raised but not fully argued. It would not, in my view, be proper to decide either of these questions, even where invited by counsel to do so. This Court, sitting as a Court of...