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Cite as: [1998] IEHC 83, [1998] 2 ILRM 487

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Royal Dublin Society v. Revenue Commissioners [1998] IEHC 83; [1998] 2 ILRM 487 (27th May, 1998)

THE HIGH COURT

(JUDICIAL REVIEW)

1997 No. 173 JR

BETWEEN

ROYAL DUBLIN SOCIETY

APPLICANT

AND

THE REVENUE COMMISSIONERS

RESPONDENTS

Judgment delivered by Mr. Justice Robert Barr on the 27th day of May, 1998

1. This matter arises out of an application made on behalf of the applicant pursuant to the order of Smyth J. made on 12th May, 1997 in which he gave the applicant leave to apply by way of judicial review for, inter alia, the following relief:-

(1) An order of certiorari quashing the decision of the respondents made on the 8th day of July, 1996 refusing to grant to the applicant a theatre licence pursuant to Section 7 of the Excise Act, 1935 (the Act).

(2) An order of mandamus directing the respondents to grant to the applicant a theatre licence pursuant to Section 7 of the Act in respect of the applicant's premises known as the Simmonscourt Pavilion, Royal Dublin Society, Ballsbridge, Dublin 4.

(3) A declaration that the applicant is entitled to a theatre licence pursuant to Section 7 of the Act.

2. The grounds upon which the relief was granted are:-

(a) The respondents failed to consider the application in accordance with law.

(b) The respondents' decision is patently unreasonable and irrational and one which no reasonable body or person could form on the evidence before it.

(c) In reaching its decision, the respondents failed to comply with the principles of natural and constitutional justice.

THE FACTS

3. The applicant (the Society) was created by Royal Charter in 1750 and since then has developed and maintained a uniquely distinguished place in the cultural, scientific, industrial and agricultural life of Ireland. It carries on its activities in extensive premises at Ballsbridge in the city of Dublin which includes a vast indoor arena known as the Simmonscourt Pavilion. The latter became operational in or about 1975 and in its early years was used primarily for exhibitions, stabling, blood stock sales and indoor show-jumping. Subsequently, from 1983 activities were extended to include major conferences, international pop and classical concerts; boxing matches, indoor tennis events, ballet and opera. In 1992, a rival venue, The Point, appeared on the Dublin scene which offers promoters a broadly similar premises and range of facilities as at the Simmonscourt Pavilion. In 1993 The Point Exhibition Co. Limited, having been successful before Geoghegan J. in judicial review proceedings against the Revenue Commissioners reported at [1993] 2 I.R. 551, obtained an excise licence pursuant to the provisions of the Act, Section 7 on the ground that The Point constituted an "other place of entertainment" within the meaning of the section. This facility gave the owners of The Point a substantial advantage over the Society which had no such seven day licence. Since then the latter has lost a substantial volume of business to The Point - notably major concerts and other musical events as well as some exhibitions intended to be held on Sundays when no liquor licence is available to the Society.

4. In 1993/4 the Society carried out a major upgrading development at the Simmonscourt Pavilion with a view to making it more suitable for concerts, ice shows, operas and other events of a public entertainment nature for which the applicant believed there was an increasing demand. The Society applied for and obtained from the District Court a public music and singing licence for the Pavilion pursuant to Section 51 of the Public Health Acts (Amendment) Act, 1890. A sum of £691,000 was expended on the premises to comply with the requirements of the Fire Services Act, 1981. Following the grant of the music and singing licence, negotiations commenced between representatives of the Society and the respondents in or about July, 1994 with a view to obtaining a theatre licence for the Pavilion under Section 7 of the Act. Ultimately, by letter dated 27th April, 1995 the respondents indicated that having examined the Society's application and having regard to the nature of events held in the premises, they refused the licence on the basis that the Pavilion was not a theatre or place of public entertainment within the meaning of the Act. Further correspondence then ensued in which, inter alia, the case was made that the unavailability of a seven day intoxicating liquor licence severely restricted the Society in its marketing of the Simmonscourt Pavilion as a place of public entertainment and as an exhibition centre, particularly as its main competitor "The Point" holds a theatre licence granted under Section 7 of the Act. The respondents by letter dated 8th July, 1996 retained their opinion that the vast majority of the activities taking place at the Simmonscourt Pavilion could not be regarded as public entertainment and, therefore, the premises did not qualify as a "place of public entertainment" within the meaning of Section 7 aforesaid.

5. The net issue for determination by the court is whether, having regard to the range of public activities carried on at the Simmonscourt Pavilion, it is within the concept "or other place of public entertainment" envisaged by Section 7 of the Act.

THE LAW

Section 7 of the Act of 1835 is in the following terms:-

"And be it further enacted, that it shall be lawful for the commissioners and officers of excise, and they are hereby authorised and empowered, to grant retail licences to any person to sell beer, spirits, and wine in any theatre established under a royal patent, or in any theatre or other place of public entertainment licensed by the lord chamberlain or by justices of the peace without the production by the person applying for such licence or licences of any certificate or authority for such person to keep a common inn, ale house, or victualling house, anything in any Act or Acts to the contrary notwithstanding."

6. The Intoxicating Liquor Act, 1927 contains the following relevant provisions:-

7. In Section 1(1) it is enacted that the word "theatre" means "a theatre or place of public entertainment licensed for the sale of intoxicating liquor under Section 7 of the Excise Act, 1835";

"The expression 'theatre licence' means a licence for the sale of intoxicating liquor granted under Section 7 of the Excise Act, 1935 in respect of a theatre."

"20(1) No person shall be admitted to any theatre after the hour of half past nine in the evening unless either -

(a) he has previously engaged or paid for a seat in that theatre for the performance or entertainment then in progress or about to commence, or

(b) he is employed in that theatre or has business with a person so employed.......

21(1) The provisions of this Act in relation to prohibited hours shall not apply to a theatre.

(2) In this section the expression 'permitted time' means a period beginning half an hour before the commencement of a performance in the theatre in respect of which the expression is used and ending half an hour after the termination of such performance.

(3) It shall not be lawful to sell or expose for sale by retail any intoxicating liquor in any theatre -

(a) at any time other than during a permitted time, or

(b) to any person other than persons who either -

(i) are then employed in the theatre, or

(ii) have engaged or paid for seats in the theatre for the performance taking or which took place during the permitted time or either of the permitted times then current, or

1 (c) in any part of the theatre which is then accessible to persons other than those persons to whom intoxicating liquor may then be sold in such theatre......"

8. Two conclusions emerge from the foregoing statutory provisions. First, the Society, having obtained a music and singing licence from the District Court for the Simmonscourt Pavilion, has established the condition precedent for an application to the respondents for a liquor licence in respect of the premises under section 7 of the Act.

9. Secondly, the phrase in Section 7 ".... in any theatre or other place of public entertainment....." is clearly within the ejusdem generis rule of statutory interpretation. The following explanation of the rule is given in Maxwell on Interpretation of Statutes , 12th Edition, at p. 297.

"In the abstract, general words, like all others, receive their full and natural meaning, and the courts will not impose on them limitations not called for by the sense or objects of the enactment..... But the general word which follows particular and specific words of the same nature as itself takes its meaning from them and is presumed to be restricted to the same genus as those words. For 'According to a well established rule in the construction of statutes, general terms following particular ones apply only to such persons or things as are ejusdem generis with those comprehended in the language of the Legislature'. (See R. -v- Cleworth (1864) 4 B&F 927 per Cockburn C.J. at p. 932). In other words, the general expression is to be read as comprehending only things of the same kind as that designated by the preceding particular expressions, unless there is something to show that a wider sense was intended........"

10. There is nothing to show that a wider sense than that applicable to "theatre" was intended by the reference to "or other place of public entertainment" in Section 7 of the Act. That proposition is underscored by the relevant provisions in the Intoxicating Liquor Act, 1927 to which I have referred. It is enacted therein that "theatre" includes a place of public entertainment licensed for the sale of intoxicating liquor under section 7 of the Act of 1833. The requirements of sections 20 and 21 of the 1927 Act apply not only to a theatre but also to a place of public entertainment within the meaning of Section 7 of the Act of 1833. These requirements imply that the public entertainment envisaged is a performance for the benefit of the public with a defined time frame and where seating is provided for patrons.

In Point Exhibition Company Limited -v - The Revenue Commissioners , to which I have already referred, Geoghegan J. decided that The Point is a "place of public entertainment" within the meaning of section 7 of the Act. He did so on the basis that the great preponderance of activities carried on there are pop and classical concerts and other musical events such as opera and ballet.

11. The range of events at the Simmonscourt Pavilion differs substantially from that at The Point. A substantial majority of them are trade or other exhibitions most of which usually continue all day for a period of days. They are open to interested members of the public who normally pay a fee to attend. Such exhibitions usually contain a wide range of goods and/or services which are put on show by commercial exhibitors for the purpose of demonstration and sale. The public perambulates from exhibitor to exhibitor. In order to attract a large attendance at a particular exhibition, an element of entertainment may be provided as, for example, film shows relating to the subject-matter of the exhibition (e.g. tourism) or occasional entertainment or instruction by well known theatrical or sporting personalities.

12. I have no difficulty in accepting that events such as indoor horse-shows, boxing and tennis tournaments qualify under the ejusdem generis rule for inclusion as "public entertainment" within the meaning of section 7 of the Act and they are also within the ambit of sections 20 and 21 of the Intoxicating Liquor Act, 1927 in the same way as pop or classical concerts; operas; ice and fashion shows. They all share in common the concept that they are public entertainments for the benefit of a, by and large, static audience that is usually seated for the performance which has a defined time span limited to a period of a few hours. Trade and other exhibitions in general terms do not have these characteristics. In my view the inclusion of film shows or casual theatrical type entertainments which are subsidiary to the primary objective of the exhibition is irrelevant. It is necessary to look at the event as a whole and decide whether or not it is within the ejusdem generis rule. If the answer to the question whether the user of the Simmonscourt Pavilion as envisaged by the Society comprises a preponderance of events which are properly within the concept of an "other place of public entertainment" in section 7 of the Act is in the negative then the respondents were correct in law in refusing to grant a liquor licence for the Pavilion. I have no doubt that the preponderance of events there as envisaged by the Society are outside the parameters of section 7 of the Act and, therefore, the respondents were obliged to refuse to grant the requested liquor licence for the premises which was an annual seven day licence. The scope of statutory interpretation by the courts was extensively reviewed by the Supreme Court in Howard -v- The Commissioners of Public Works in Ireland and Byrne & Others -v- Same [1994] 1 I.R. 101 - see the judgments of Finlay C.J.; Blayney J. and Denham J. In essence it was decided therein that a court has no power to manipulate a statutory provision by extending or ignoring the plain meaning of the words used in the interest of avoiding a perceived injustice. Where such a situation exists the remedy lies exclusively with the legislature.

13. I am obliged to hold that the Society is not entitled to the reliefs claimed.