Judicial Review - Refusal to grant theatre licence - Whether premises was a theatre or place of public entertainment within the meaning of the Excise Act 1835 - Ejusdem generis rule of statutory interpretation - Excise Act 1835, section 7 - Intoxicating Liquor Act 1927, sections 1(1), 20(1), 21(1), 21(2) and 21(3) - Public Health (Amendment) Act 1890, section 51.

The High Court (Mr Justice Barr); judgment delivered 27 May 1998.

The phrase "in any theatre or other place of public entertainment", contained in Section 7 of the Excise Act 1835, is within the ejusdem generis rule of statutory interpretation and therefore when considering an application for an excise licence pursuant to the provisions of the 1835 Act, it is necessary to look at the events carried on by the applicant as a whole and decide whether or not the preponderance of events carried on by the applicant come within Section 7 of the 1835 Act. The High Court so held in refusing the relief sought by the applicant, finding that the preponderance of events carried out by the applicants at the premises known as the Simmonscourt Pavilion, Royal Dublin Society, Ballsbridge, Dublin 4, are outside the parameters of Section 7 of the 1835 Act.

John Gordon SC and Carol O'Kennedy BL for the applicant; Iarfhlaith O'Neill SC and Denis McDonald BL for the respondents.

Mr Justice Barr said the matter arose out of an application made on behalf of the applicant pursuant to an order of Mr Justice Smyth in which the applicant was given leave to apply for judicial review of a decision of the respondents to refuse to grant the applicant a theatre licence pursuant to Section 7 of the Excise Act 1835. The applicant was given leave to apply for judicial review on the grounds that the respondents failed to consider the application for the theatre licence in accordance with law and that the respondents' decision was patently unreasonable and irrational and one which no reasonable body or person could form on the evidence before it and that the respondents failed to comply with the principles of natural and constitutional justice. The applicant sought an order of certiorari quashing the decision of the respondents in refusing the grant the theatre licence. The applicant also sought an order of mandamus directing that the respondents grant the theatre licence pursuant to Section 7 of the 1835 Act and a declaration that the applicant is entitled to a theatre licence pursuant to Section 7 of the 1835 Act.

Mr Justice Barr, in outlining the facts of the case said the Royal Dublin Society was created by Royal Charter in 1750 and had a distinguished place in the cultural, scientific, industrial and agricultural life of Ireland. Its extensive premises includes a vast indoor arena known as the Simmonscourt Pavilion, which became operational in or about 1975 and initially in was used primarily for exhibitions, stabling, blood stock sales and indoor show-jumping. Since 1983 its 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, was opened and offered promoters a broadly similar premises and range of facilities as the Simmonscourt Pavilion. In 1993 The Point Exhibition Co Limited was successful before Mr Justice Geoghegan in judicial review proceedings against the respondents and obtained a excise licence pursuant to the provisions of Section 7 of the 1835 Act on the grounds that The Point constituted an "other place of entertainment" within the meaning of the section. Mr Justice Barr said that this facility gave the owners of The Point a substantial advantage over the society which had no seven-day licence and the society therefore lost business to The Point especially in relation to events intended to be held on Sundays when no liquor licence is available to the society.

In 1993-94 the applicants upgraded the Simmonscourt Pavilion with a view to making it more suitable for concerts, ice shows and other events of a public entertainment nature. The applicant 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 (Amendment) Act 1890. Negotiations then commenced between the applicants and the respondents with a view to obtaining a theatre licence for the pavilion under Section 7 of the 1835 Act. The applicants made the case that the unavailability of a seven-day intoxicating liquor licence severely restricted the society in its marketing of the Simmonscourt Pavilion as a place or public entertainment and an exhibition centre. The respondents refused to grant the licence on the basis that the pavilion was not a place of public entertainment within the meaning of the 1835 Act having regard to the nature of events held in the premises. Mr Justice Barr said the net issue for determination is whether, having regard to the range of public activities carried on at the Simmonscourt Pavilion, it is within the concept "other place of public entertainment" envisaged by Section 7 of the 1835 Act. Mr Justice Barr said Section 7 of the 1835 Act is in the following terms -

" . . . 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 of 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."

Mr Justice Barr said the relevant provisions of the Intoxicating Liquor Act 1927 were as follows In section 1(1) it was enacted as follows "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 past nine in the evening unless either -

(a) he had 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 a business with a person so employed . . . "

Section 21 provided as follows -

"(1) The provision 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 and 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

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

Mr Justice Barr said that the two conclusions which emerged from the foregoing statutory provisions were that first, having obtained a music and singing licence from the District Court for the Simmonscourt Pavilion, the applicant had established the condition precedent for an application to the respondents for a liquor licence in respect of the premises under Section 7 of the 1835 Act. Secondly, the phrase in Section 7 "in any theatre or other place of public entertainment" is within the ejusdem generis rule of statutory interpretation. Referring to Max- well on Interpretation of Statutes, 12th edition, at page 297, Mr Justice Barr said this means that 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. Mr Justice Barr said 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 1835 Act. That proposition is supported by the relevant provisions in the Intoxicating Liquor Act 1927 as it is enacted therein that "theatre" includes a place of public entertainment licensed for the sale of intoxicating liquor under Section 7 of the 1835 Act. The requirements of Section 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 1835 and 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.

Mr Justice Barr said that in the Point Exhibition Company Limited v The Revenue Commissioners [1993] 2 IR 551 Mr Justice Geoghegan decided that The Point is a "place of public entertainment" within the meaning of Section 7 of the 1835 Act as the majority of activities carried on there are pop and classical concerts and other musical events such as opera and ballet. The sale of intoxicating liquor granted under section 7 of the exercise Act 1835 in respect of a theatre."

Section 20(1)provided as follows -

"No persons shall be admitted to ant theatre after the hour of half range of events at the Simmonscourt Pavilion differs substantially from that of The Point. A substantial majority of events 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. The exhibitions usually contain a wide range of goods and/or services which are put on show by commercial exhibitors for the purpose of demonstration or sale. To attract attendance to such exhibitions, an element of entertainment may be provided as, for example, film shows relating to the subject-matter of the exhibition.

Mr Justice Barr accepted that events such as indoor horseshows, boxing and tennis tournaments qualify under the ejusdem generis rule for inclusion as "public entertainment" within the meaning of Section 7 of the 1835 Act and they are also within the ambit of Section 20 and 21 of the Intoxicating Liquor Act 1927 in the same way as pop concerts, operas and fashion shows. They all share in common the concept that they are public entertainment for the benefit of a 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. Mr Justice Barr said 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. Mr Justice Barr said he had no doubt that the user of the Simmonscourt Pavilion by the applicant envisaged a preponderance of events which were outside the parameters of Section 7 of the 1835 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; Byrne and Others v Same [1994] 1 IR 101, in which it was decided in essence 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. Mr Justice Barr refused the reliefs sought

Solicitors: Eugene F. Collins (Dublin) for the applicant; Frances Cooke, Revenue Solicitor, Dublin Castle, for the respondents.