THE SUPREME COURT
Appeal No. 171/98
Hamilton, C.J.
Denham, J.
Barrington, J.
Keane, J.
Lynch, J.

BETWEEN
ROYAL DUBLIN SOCIETY
Appellant
AND

THE REVENUE COMMISSIONERS
Respondent

JUDGMENT delivered the 19th day of May, 1999 by Keane J. [Nem. Diss.]

The extensive grounds and buildings owned by the appellants (“the RDS”) at Ballsbridge include a large indoor arena known as the Simmonscourt Pavilion (“the pavilion”). This was built in the mid-1970s, principally to accommodate exhibitions such as that associated with the famous Spring Show, stabling for that show and the equally celebrated Horse Show, and bloodstock sales. When planning permission was sought for the building from Dublin Corporation, it was stated that it would also be suitable for other uses, such as

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indoor show jumping and other sports events, ice-skating shows, community amenity requirements and other future uses which would require large covered spaces.

In or around the month of July 1993, the RDS decided to upgrade the facilities at the Simmonscourt Pavilion. This was with a view to meeting what was seen as an increased demand for the holding of concerts, ice-shows, operas and other public entertainments in the pavilion which would require large covered spaces. Permission was granted by the Corporation for the erection of a single storey meeting room, dressing rooms and toilets at the rear of the pavilion and a fire safety certificate pursuant to the relevant legislation was also granted by the Corporation. The cost of upgrading the pavilion in order to make it suitable for such purposes amounted to £691,000.

The pavilion could not be used for the contemplated new range of activities unless a public music and singing licence was first obtained in the District Court pursuant to s.51 of the Public Health Acts Amendment Act 1890 ("The 1890 Act”). Such a licence was duly applied for and granted by the District Court.

The RDS then entered into correspondence with the excise licensing section of the Respondents with a view to obtaining a licence for the sale of intoxicating liquor in the pavilion under s.7 of the Excise Act 1835 (“the 1835 Act”). This is a form of licence generally, and in this judgment, referred to as a

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“theatre licence”. In a letter of the 8th August 1994, the deputy chief executive of the RDS, Mr. Gerry McAuliffe referred to a number of what he described as major theatrical and stage events which had already been held in the pavilion, including the Bolshoi and Kirov Ballets, the Sofia National Opera, Walt Disney’s World on Jce show (on three occasions), the Moscow State Circus, the Eurovision Song Contest, (twice), Luciano Pavarotti, Neil Diamond, John Denver and Chris de Burgh. He also referred to other entertainments which had taken place there such as Funderland, the TSB Women’s Tennis Classic, boxing matches, basketball matches and Holiday World. In their reply, the Respondents sought further details as to what the RDS had in mind and also asked for facilities for inspection by one of their officers. In particular, they required information as to the proposed events for 1995. In his reply, Mr. McAuliffe indicated that the only events in respect of which there were bookings at that stage were Funderland, Holiday World, The Farm Machinery Show, the Brighter Homes and DIY Exhibition, the “Head to Toe” Fashion Show, The Kerrygold Horse Show and Walt Disney’s World on Ice Show. On the 27th April 1995, the Respondents replied as follows:-

“I refer to your letter of 20th January 1995 and previous correspondence regarding your clients’ application for a licence under s. 7 of the Excise Act 1835.

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“In order to obtain a licence under s. 7 of the Excise Act 1835 your clients’ premises must be a 'place of public entertainment’ within the meaning of that section. The question of what is a place of public entertainment within the meaning of the section was considered by Mr. Justice Geoghegan in the case of the Point Exhibition Company Limited v. The Revenue Commissioners, [1993] 2 IR 551”

‘‘The Revenue Commissioners have examined your clients’ application for a licence in the light of the judgment of Mr. Justice Geoghegan referred to above and having regard to the activities currently being held in your clients’ premises.”

“Having examined the application in respect of the Royal Dublin Society and in view of the nature of the activities performed there, it is the view of the Revenue Commissioners that your clients’ premises is not a place of public entertainment within the meaning of s. 7 of the Excise Act 1835 and accordingly a licence under that section cannot be granted.”

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On the 27th of April 1996, the Chief Executive of the RDS, Mr. Shane Cleary, wrote to the Respondents inviting them to reconsider their decision, inter alia on the following ground:-

“Simmonscourt Pavilion has hosted since 1925 pop concerts, ice-shows, exhibitions, the Bolshoi Ballet, the Kirov Ballets, operas, the Eurovision Song Contest, Funderland,  the TSB Women’s Tennis Classic, indoor horse shows and a host of concerts of world famous stars. Appendix F contains a list of events hosted at the Simmonscourt Pavilion since 1983 up to the present day. Many of the events previously hosted at the Simmonscourt Pavilion have since been hosted at The Point Exhibition Company Limited Also a number of events which have been hosted at The Point have similarly been hosted at the Simmonscourt Pavilion and have since been hosted at The Point Exhibition Company Limited. Since the granting of a licence to sell beers, wines and spirits to The Point Exhibition Company Limited in 1993, many bookings which would in the normal course of events have come to the Simmonscourt Pavilion have been lost to The Point Exhibition Company Limited and as a result [of] the failure of the Revenue

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Commissioners to grant the Society its entitled theatre licence it is considerably disadvantaged economically thereby.”

In their reply of the 8th July 1996, the Respondents maintained their position that the RDS were not entitled to a theatre licence under s.7 of the 1835 Act.

On the 12th May 1997, the RDS were granted 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 refusing to grant to the RDS a theatre licence pursuant to s.7 of the 1835 Act.

2.	An order of mandamus directing the Respondents to grant to the RDS a theatre licence pursuant to s.7.

3.	A declaration that the RDS was entitled to a theatre licence pursuant to s.7.

Leave was granted on the grounds that:-

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(1)	The Respondents had failed to consider the application in accordance with law.

(2)	The decision of the Respondents was patently unreasonably and irrational and one which no reasonable body or person would have formed on the evidence before them.

(3)	In reaching their decision, the Respondents had failed to comply with the principles of natural and constitutional justice.

A Statement of Opposition having being filed on behalf of the Respondents, the application came on for hearing before Barr J. In a reserved judgment, he dismissed the application on the ground that the Respondents were correct in law in refusing to grant a licence under s.7 of the 1835 Act in respect of the pavilion. From that decision, the RDS have now appealed to this court.

Before considering the submissions advanced on behalf of the RDS and the Respondents, I should set out the provisions of the relevant legislation.

Section 7(1) of the 1835 Act is as follows:-

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“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 certflcate or authority for such a person to keep a common inn, ale house or victualling house, anything in any Act or Acts to the contrary notwithstanding.”

In Ireland, the words “any theatre established under a royal patent” must be taken as a reference to the power conferred on the crown by s. 1 of the Dublin Stage Regulation Act 1786 to grant letters patent for the establishment or keeping of theatres in the City and County of Dublin.

Section 5 1(1) of the 1890 Act provides that:-

“For the regulation of places ordinarily used for public dancing or music, or other public entertainment of the like kind, the following provisions shall have effect (namely)

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“2.	After the expiration of six months from the adoption of this part of this Act, a house, room, garden or other place whether licensed or not for the sale of wine, spirits, beer or other fermented or distilled liquors shall not be kept or used for public dancing, singing, music, or other public entertainment of the like kind without a licence for the purpose or purposes for which the same respectively is to be used first obtained from the licensing justices of the licensing district in which the house, room, garden, or place is situate...”

Section 14(1) of the Public Dance Halls Act 1935 provides that:

“Immediately upon the passing of this Act, section 51, of the Public Health Acts Amendment Act 1890 shall cease to apply or have effect in relation to public dancing within the meaning of this Act.”

The same Act conferred a new jurisdiction on the District Court to grant public dancing licences and set out in s.2(2) a wide range of factors to which the district judge is to have regard in deciding whether to grant the licence or not. While they were referred to in the course of the arguments, it is quite clear

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that, in the case of a licence authorising “singing, music, or other public entertainment of the like kind”, such as was granted to the RDS in the present case, those provisions have no application.

The provisions of the Intoxicating Liquor Act 1927, which were referred to in the course of argument, should also be mentioned. Under s.21(l) the provisions of the Act in relation to prohibited hours are not applied to a theatre”, which is defined in s.l(l) as

“A theatre or place of public entertainment licensed for the sale of intoxicating liquor under s.7 of the Excise Act 1835.”

S.21 goes on to prohibit the sale of intoxicating liquor in a theatre at any time other than during a “permitted time” which is defined as a period beginning half an hour before the commencement of a performance in the theatre and ending half an hour after the termination of the performance. S.20(l) provided that no person is to be admitted to the theatre after half past nine in the evening unless either

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“(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.”

The circumstances under which a theatre licence could be granted under s.7 of the 1835 Act were considered by Geoghegan J in The Point Exhibition Company Limited v. The Revenue Commissioners [1993] 2 IR 551, the decision referred to by the Respondents when refusing the application by the RDS in the present case. The owners of The Point, a venue used for a range of different activities including pop concerts and exhibitions, had applied for a licence under s.7, but at the date the proceedings came before the High Court the Respondents had not made any decision as to whether it should be granted.

The first question which the learned judge had to resolve in that case was whether s.7 had been repealed by implication by the Licensing Act 1872 insofar as it applied to places other than “theatres”. That question was of importance because of his conclusion that The Point was not a “theatre” within the meaning of s.7 and hence could only be licensed under s.7 of the 1835 Act, if the words permitting the licensing of such “other place(s) of entertainment”

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had not been impliedly repealed by the 1872 Act. His decision that they had not been so repealed was not challenged in the present proceedings. It was also accepted that the RDS was not a “theatre” within the meaning of s.7 and that, accordingly, the Respondents were required to be satisfied that it was a “place of public entertainment” within the meaning of s.7 before granting a licence.

On the question as to whether The Point was such a “place of public entertainment”, Geoghegan J expressed his view as follows:-

“Is The Point a place of public entertainment’? I think it clearly is. The concept of ‘theatre’ in 1835 would have embraced plays, operas and pantomimes but a building in which there was such a variety of activities, such as pop concerts and exhibitions, not even contemplated at that time, as there are now in The Point, is more naturally, and certainly in 1835 would have been more naturally, described as an ‘other place of public entertainment’.”

The final question considered by Geoghegan J in that case was whether The Point was “licensed by the... Justices of the Peace” within the meaning of s.7, the owners having been granted, as have the RDS in the present case, a public music and singing licence under s.51 of the 1890 Act. He concluded

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that it was so licensed within the meaning of the 1835 Act and, again, no one has sought in the present case to disturb that finding.

In the present case, Barr J held that the RDS, having obtained a music and singing licence, had complied with a condition precedent for an application under s.7 of the 1835 Act. However, he also held that the expression “theatre or other place of public entertainment” in s.7 was governed by the eiusdem generis rule of statutory interpretation. Having referred to the fact that what he described as a “substantial majority” of the events at the pavilion are trade or other exhibitions, most of which usually continue all day or even for a period of days, he went on:-

“I have no dfficulty in accepting that events such as indoor horse shows, boxing and tennis tournaments qualzfj under the ejusdem generis rule for inclusion as ‘public entertainment’ within the meaning of s. 7 of the Act and they are also within the ambit of ss 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 defitied time span limited to a period of a few hours. Trade and other exhibitions in general

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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 to decide whether or not it is within the eiusdem generis rule.”

Having concluded that the preponderance of events in the pavilion, as envisaged by the RDS, were outside the parameters of s.7, the learned High Court judge held that the Respondents were obliged to refuse to grant the licence sought.

On behalf of the RDS, Mr. John Gordon, SC submitted that the ejusdem  generis rule did not apply to the expression “theatre or other place of public entertainment”. He said that, for the purposes of that rule, a genus could be constituted only by the enumeration of a number of classes followed by the words “and other”, but could not be constituted by the mention of a single class (in this case theatres) followed by those words, citing in support Allen v. Emmerson [1944] 1 KB 362.

He said that the learned High Court judge in the present case, because of a mistaken application of the eiusdem generis rule, had construed the expression “places of public entertainment” in an unduly restrictive manner and, in particular, had attached too much importance to the fact that events

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could take place in the pavilion without the presence of a seated audience for an entire day, rather than for a few hours. He submitted that, in any event, it was quite commonplace for theatres and similar venues which were unarguably “places of public entertainment” to be used for other purposes from time to time, such as meetings of different types, which could not be described as entertainment”: the essential feature of the pavilion in the present case was that it had been specifically adapted for the holding of “entertainments” of a similar nature to those staged in The Point. The only reason that not as many such entertainments were held in his clients’ premises was because of the granting of a licence in the case of The Point and the refusal of the Respondents to grant one to his clients. Nor was there any reason why exhibitions, such as motor shows, which many people attended without any intention of actually buying a car could not be described as “entertainments”.

Mr. Gordon submitted that, altogether apart from those considerations, the pavilion had been found to be a place of public entertainment by the District Court. The issue as to whether the pavilion was a place of public entertainment having been conclusively determined by a court of competent jurisdiction, the Respondent could only lawfully exercise their jurisdiction under the 1835 Act by granting the licence. He cited in support a dictum of Barron J speaking for this court in DPP v. Tivoli Cinema Limited  [1999] 2 ILRM 153.

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On behalf of the Respondents Mr. Iarflaith O’Neill, SC submitted that the ejusdem generis rule was applicable to the expression “places of public entertainment” since it was preceded by two classes, i.e. theatres established under patent and other theatres. He further submitted that the wording of s.7 of the 1835 Act, providing that it should be lawful for his clients to grant licences made it clear that the Respondents had a statutory discretion as to whether to grant the licence in any particular case. That required them to consider the circumstances of each particular case, and, unless it could be shown that their decision was irrational within the criteria laid down in The State (Keegan & Lysaght) v. The Stardust Victims Compensation Tribunal [1986] IR 642, the court should not interfere. He also urged that any error the Respondents might have made was an error within their jurisdiction which did not appear on the face of the record and that, accordingly, certiorari did not lie, citing the judgment of Henchy J in the decision of this court in The State (Abenglen Properties Limited) v. Dublin Corporation [1984] IR 381.

Mr. O’Neill further submitted that the grant by the District Court of a public music and singing licence, while undoubtedly a condition precedent to the granting of a licence under s.7 of the 1835 Act, did not conclusively determine the question as to whether the pavilion was a “place of public entertainment”. That determination was reached by the District Court under an entirely different code and did not affect the clear discretion conferred on the

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Respondents by the earlier Act to determine whether a particular premises was a “place of public entertainment” within the meaning of s.7.

In considering these submissions, I think it is probably convenient to deal first with the question as to whether, assuming the decision of the Respondents to have been based on a mistaken view of the law, relief by way ofjudicial review is available to the RDS.

The activity which the RDS wish to carry on, i.e. the sale of intoxicating liquor to the public, is regulated in these islands by a licensing code, stretching back over the centuries, of labyrinthine complexity. It is not, however, an activity of so essentially anti-social a nature that of its nature it demands regulation to that degree and in other civilised societies, including many of the member states of the European Union, it is far less rigorously controlled. While the Oireachtas and its predecessors, as they were entitled to, have taken the view that it should be severely restricted, it would seem to me that, in the case of provisions such as that under consideration in the present case, a citizen who wishes to carry on the activity in question and appears to meet the requirements of the particular provision, should not be deprived of his right to carry it on because the authority from whom he must obtain the licence acts on an erroneous view of the law. That is a consideration of particular importance where, as here, the statute provides no appeal machinery and, unless the wrongful adjudication can be set aside by the High Court in the exercise of its

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inherent jurisdiction over inferior tribunals and bodies, the consequent injustice will remain without remedy.

Cases such as The State (Keegan & Lysaght) v. The Stardust Victims Compensation Tribunal lend no support, in my view, to the proposition that judicial review does not lie in a case such as the present. Those were cases in which the tribunal in question had been entrusted, either by the Oireachtas or under an extra statutory scheme, with the resolution of particular issues and it was held that the High Court could concern itself solely with the manner in which the decision was arrived at and not with the substance of the decision itself. Save where the decision was contrary to fundamental reason and common sense, the courts had no jurisdiction to interfere in the absence of any procedural frailty. Different consideration arise where, as here, the sole issue is as to whether the licensing authority applied the law correctly. To construe the section as entitling the Respondents on an erroneous view of the law to deprive an applicant of his right to carry on an otherwise lawful trade or business and thereby affect his capacity to earn a living and to remove the authority in question completely from the ambit of judicial review is not a construction which can, or should be, adopted.

The Respondents also sought to rely, as already indicated, on the judgment of Henchy J in The State (Abenglen) Properties Limited) v. Dublin Corporation. That was a case in which this court refused to quash a planning

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permission where the developer claimed that the planning authority had acted ultra vires in attaching certain conditions to the permission and it was argued that, in arriving at their decision, they had misconstrued the relevant development plan. Henchy J said:

“If. . [the planning authority] erred in either respects, they erred within jurisdiction, and any error they may have made does not appear on the face of the record.”

In the remainder of his judgment, the learned judge adduced other reasons which, in his view, disentitled the developers to the relief which they sought and this passage in his judgment did not form part of the ratio of the decision of the majority of the court. However, for the purposes of this case, it is sufficient to say that, first, for the reasons I have already explained, there was no question of the Respondents in this instance being entitled to err within jurisdiction as there was in the Abenglen case. Secondly, the “record” in that case was the decision of the planning authority pursuant to the terms of the statute which contained no error of law on its face: the “record” in this case was the letter of the 27th April 1995 containing their decision that a licence could not be granted and expressly stating that the reason was that the pavilion was not a “place of public entertainment” within the meaning of s.7. In the present

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case, accordingly, if it was necessary so to find, I would conclude that the error of law, if such it was, was indeed apparent on the face of the record.

The next question, accordingly, is as to whether that determination was erroneous in point of law. Barr J was satisfied that it was not so erroneous because, applying the ejusdem generis rule, the pavilion could not be said to be a “place of public entertainment”.

It would appear from his judgment that the learned High Court judge was not referred to the decision of the King’s Bench Division in England in Allen v. Emmerson. That was a case in which the court was concerned with the construction of the words “theatres and other places of public entertainment” in a local Act which prohibited their being opened without having being first licensed by the local authority. The proprietors of a fun fair were prosecuted for not having such a licence but the case was dismissed by the justices on the ground that the fun fair was not a “place of public entertainment” within the meaning of the Act.

Giving the judgment of a divisional court, Asquith J said that the e!usdem generis rule did not apply to the expression in question and gave three reasons for so holding. The first was referable to certain words in brackets which do not appear in s.7. The other reasons were as follows:-

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“(b) No case was cited to us in which a genus has been held to be constituted, not by the enumeration of a number of classes followed by the words ‘and other’ but by the mention of a single class (in this case theatres) followed by those words.

(c)	The tendency of the more modern authorities is to attenuate the application of the ejusdem generis rule: cf Anderson v. Anderson [1895] 1 QB 749.”

In that case, the divisional court concluded that the fun fair was a “place of public entertainment” within the meaning of the local Act.

The law is thus stated in Bennion on Statutory Interpretation 2nd edition, 1992, at pp 860/3:

“(1) For the elusdem ,generis principle to apply there must be a sufficient indicatation of a category that can properly be described as a class or genus, even though not specified as such in the enactment. Furthermore the genus must be narrower than the general words it is said to regulate.

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(2) The nature of the genus is gathered by implication from the express words which suggest it (in this Code referred to as the genus-describing terms). Usually these consist of a list or string of substantives or adjectives (in the Code referred to as the generic string)....

“The ejusdem generis principle may apply where one term only establishes the genus, though in such cases the presumption favouring the principle is weakened because of the dfficulty of discerning a genus ... a rule that two or more genus-describing words are always required would be too rigid The question is invariably one of the intention conveyed by the entirety of the passage, and there can be no absolute rule.... It is true that the mention of one genus describing term only may make it more difficult to arrive at the nature of the genus...”

In the case referred to by Asquith J in Allen v. Emmerson, (Anderson v. Anderson) Rigby LJ said (at p. 755):-

“In modern times I think greater care has been taken in the application of the doctrine [of ejusdem generis] but the doctrine

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itself as laid down by great judges from time to time has never been varied; it has been one doctrine throughout. The main principle upon which you must proceed is, to give all the words their common meaning; you are not just fled in taking away from them their common meaning, unless you can find something reasonably plain upon the face of the document itself to show that they are not used with that meaning, and the mere fact that general words follow specific words is certainly not enough.”

I am satisfied that the decision in Allen v. Emmerson is applicable to the present case and should be followed. It is correct in principle and is in accordance with the principles of statutory interpretation set out in the authorities to which I have referred.

Mr. O’Neill sought to distinguish Allen v. Emmerson on the ground that in s.7 a second genus is mentioned i.e. “theatre established under a royal patent”. However, if one has regard, as one must, to the punctuation of the section, it is clear that the genus, if such it be, consists of the word “theatre” which immediately precedes the expression or other place of public entertainment”. In any event, the reasoning of the divisional court in Allen v. Emerson would be equally applicable where the suggested genus simply

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consists of - to paraphrase the words of the section - “theatres whether under patent or otherwise”.

I am satisfied, accordingly, that the learned High Court judge erred in law in applying the ejusdem generis rule to the construction of these words. That in turn led him to adopt what is clearly an unnecessarily restrictive view of the expression “other place of public entertainment”. Specifically, it is quite clear that a place to which the public are admitted on payment of whatever is the appropriate charge - it may be even without charge - and where activities are carried on which could be broadly described as “entertaining” is entitled to be described as a “place of public entertainment”. To confine it to premises which resemble theatres in having designated seating areas for the accommodation of audiences who view particular spectacles over a limited period of time, usually a few hours, would only be appropriate if one were applying the ejusdem generis rule. Thus, exhibitions featuring particular trades or activities, whether it be motor cars, tourism or whatever, to which the public are admitted can appropriately be described as “entertainments”: common sense suggests that they are attended by many members of the public who have no intention of buying any of the products or services on offer, but who find it a pleasantly diverting way of spending a few hours.

That conclusion is unaffected by the fact that the premises may also be capable of being used for purposes which could not be described as

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“entertainment”. It is not unusual today for large meetings, such as those of trade unions considering a particular industrial dispute, political parties or shareholders in large public companies, to be held in theatres or concert halls, simply because they are capable of accommodating large numbers of people in relative comfort. The fact that, from time to time, activities may be carried on in the RDS - or, for that matter, The Point - which could not reasonably be described as “entertainment” does not mean that the venues cannot be properly described as “places of public entertainment”.

It is also clear that the provisions of the Intoxicating Liquor Act 1927, to which I have already referred, are worded in a manner which would suggest that the draftsman had in mind seated audiences in a theatre of the conventional type. However, as the judgment of Barron J in DPP v. Tivoli Cinema Limited made clear, that is entirely consistent with a “place of public entertainment” within the meaning of s.7 not affording seating to its patrons for particular events.

In the present case, it is not in dispute that the RDS expended a substantial sum of money on adapting the pavilion so that it would be suitable for the holding of events which, beyond argument, are public entertainments, such as opera, ballet, pop concerts etc. They obtained all the appropriate permissions from the local authority under the planning and fire services code and satisfied the criteria which the District Court is obliged to apply in deciding

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whether such a premises is properly described as a “place for... public entertainment” and appropriate to be granted a public and music singing licence. The stated reason of the Respondents for refusing them a licence was that a significant number of the events which had been held in the preceding year, and had been booked for the following year, were exhibitions rather than the more theatrical form of entertainment which the RDS hoped to attract. The uncontradicted evidence in the High Court was, however, to the effect that this was because of the inability of the RDS to attract bookings for events of this nature when they did not have a theatre licence but their principal competitors, The Point, did. 

That, in my view, was a mistaken approach for the Respondents to adopt. Pressed to its logical conclusion, it would mean that an entrepreneur who had obtained all the necessary permissions, including a public music and singing licence, and then proceeded to expend large sums of money on the construction of a new building clearly capable of being described as a “place of public entertainment” could be deprived of a licence by the Respondents simply because he was not in a position to satisfy them that the building had been used in the past for “public entertainments”, which would be manifestly impossible to demonstrate since on the assumption I have made it was not yet built. Equally, he might be unable to satisfy them that it would be so used in the future until he was equipped with a theatre licence and in a position to compete

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with other similar venues which were licensed. In the light of the considerations to which I have earlier referred, I am satisfied that the section should not be so construed.

Counsel on behalf of the RDS indeed submitted that, once the District Court had found the pavilion to be a place of public entertainment, the Respondents were automatically obliged to grant the theatre licence sought. I do not think it is necessary to go that far. The Intoxicating Liquor Acts constitute a separate and distinct code from the code of which the 1890 Act forms part and the Respondents are entitled to satisfy themselves in every case that, having regard to the appropriate criteria to which I have referred, the premises sought to be licensed are indeed a “place of public entertainment” within the meaning of s.7 of the 1835 Act. No doubt, in practical terms, their task will be greatly simplified by the fact that the premises in question have not merely been granted all the relevant permissions by the local authority but in addition have been granted a public music and singing licence by the District Court and, by implication, designated a place of public entertainment by that court. But that is not to say that, as a matter of strict law, their jurisdiction is effectively pre-empted by the decision of the District Court. While Barron J in DPP v. Tivoli Cinema Limited said that “[a]s the holder of such a [music & singing licence] the defendant was entitled to and obtained a licence under s.7

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of the Excise Act 1835,” it is clear that the issue with which the court is concerned in the present case was not argued in that case.

I would allow the appeal and substitute for the order of the High Court an order of certiorari setting aside the decision of the Respondents to refuse to grant a licence under s.7 of the 1835 Act. I am sure that the Respondents would then proceed to grant the necessary licence and that, accordingly, an order of mandamus is not necessary in the circumstances.