309 / 322
GAZETTE
JULY/AUGUST
198
conviction not to be recorded on the
licence.
At the hearing of the application for a
certificate of transfer, in relation to the
new premises the Superintendent
suggested to the President that the
conviction recorded against Messrs.
Ryan and Dunleavy in November 1981 in
respect of the Countess Bar "must" under
the provisions of S.30(2) of the Intoxica-
ting Liquor Act, 1927, be recorded on the
licence to be held by the company in
respect of the Ivy Leaf Bar.
Subsection 1 and 2 of Section 30 of the
1927 Act read:
"1. Whenever on an application for a
certificate for the transfer of a licence for
the sale of intoxicating liquor by retail,
the applicant at the time of such applica-
tion satisfied the court that the transfer is
desired for the purpose of giving effect to
a
bona fide
sale for money or moneys
worth of such licence of the premises to
which the same is attached, the court shall
if it grants such certificate, direct in and
by such certificate that all (if any)
offences then recorded on such licence
under this part of this Act shall at the time
of such transfer cease to be so recorded,
and whenever such direction is so given
every such offence shall at the time of the
transfer of such licence pursuant to such
certificate cease to be recorded on such
licence and such licence shall be so trans-
ferred freed and discharged from the
records of such offences and shall
thereafter have effect for all purposes as if
such offences had never been recorded
thereon.
2. Whenever a licence (hereinafter
called the first licence) is transferred freed
and discharged under the foregoing sub-
section from the record of an offence and
the person who was the holder of such
licence immediately before such transfer
(hereinafter called the first transfer)
applies (whether in the same or another
licensing area) within 5 years after such
transfer for a Certificate for the Transfer
(hereinafter called the second transfer) to
him of the same or another licence
(hereinafter called the second licence) the
Court if it grants such certificate shall in
and by such certificate direct that all
offences which immediately before the
first transfer were recorded under this
part of this Act on the first licence shall on
the second transfer be recorded on the
second licence and whenever such
direction is so given every such offence
shall on the second transfer be recorded
on the second licence, and such record
shall from and after the second transfer
have effect as if the same had been made
on the second licence at the time when it
was made on the first licence save that for
the purposes of calculating the duration
under this Act of such record the period
between the first transfer and the second
transfer shall be omitted."
The President of the District Court had
accepted that the present transaction was
a
bonafide
transfer within the meaning of
sub-section 1 of Section 30. The court was
not therefore concerned with a device to
evade the provisions of the Intoxicating
Liquor Act. The question therefore
submitted by the President in the case
stated was whether, in granting the
application and on the facts disclosed, it
should be directed that the recorded
conviction in November, 1981, be
recorded on the licence of the company.
The Court HELD: The applicant
company was an incorporated entity and
therefore a different person from Mr.
Ryan or Mr. Dunleavy. Section 30(2) of
the Act of 1927 did not have any direct
application to the circumstances of the
application. The suggestion that there
should be recorded on the licence, not the
recorded convictions of the transferors of
the publicans' business, but the recorded
convictions of private individuals who
are now shareholders and directors of the
company misses the fact that the parties
involved are different legal entities. Dicta
of Chief Baron Palles and Johnston J. in
King (Cottingham)
-v-
Justices of the
Court
[1906] 2 IR pp 419 and 426, and
which were expressly approved by Kenny
J. in
State (John Hennessy and Chariot
Inns Limited)
-v-
Superintendent J.
Commons
[1976] IR 238 and by
Barrington J. in
Bernard McMahon
-v-
Murtagh Properties Limited
[1982] 2
ILRM 342 were followed.
As the transaction was a
bonafide
sale,
the answer to the question posed in the
case stated should be "No".
In Re Hesketh Investment Limited - High
Court (per Barrington J.) - 17May. 1983 -
unreported.
Joseph B. Mannix
HABEAS CORPUS
Infant removed to this jurisdiction by
Respondent ordered to be returned to the
care of Kent County Council which must
deal with the matter in accordance with the
determination of the English courts.
The Applicants sought an order for the
return by the Respondent, C.S. of the
Infant, S.S. to their custody. The applica-
tion was treated as an application for an
enquiry as to the legality of the detention
of the Infant by the Respondent under
Article 40 of the Constitution. The
Respondent, now aged 47 years, resided
in England since 1956 and was an Irish
citizen. Before going to England he
married in Dublin and thereafter lived
and worked in England. There were five
children all of whom were now grown up.
His then wife sought and obtained a
decree of divorce. He then lived for some
years with a married lady, Mrs. W. as she
then was, and on his own evidence had
three children by her. He ceased to reside
with her in 19^75 and she had since
remarried and was now known as Mrs. S.
In September, 1979, the Respondent
entered into another marriage, then being
43 years of age and his then wife being just
over 16 years of age. Of that marriage the
Infant in this case was born on September
2, 1980. The Respondent alleged that his
wife was erratic and unstable in her
behaviour, even prior to the birth of the
Infant and became more so afterwards,
claiming that she neglected the Infant and
that he was much involved in its upbring-
ing and welfare.
The I n f an t 's mother left the
Respondent in June, 1981, two weeks
prior to which the Respondent had placed
the Infant in the household of and under
the care of Mrs. S. with whom he had
formerly lived.
The Respondent brought divorce
proceedings against the infant's mother
before the High Court in England in
January, 1983 and an order was made
granting a decree of divorce nisi and
directing that the Infant should remain
in the care of Kent County Council with
leave to place the child with its mother for
staying access. The access was to be
supervised and the child was not to be
removed from England and Wales
without leave of the court until he was 18.
The Respondent sought to appeal and it
was agreed by the Solicitors and the
parties that without the necessity for
returning to court, a stay would be put
into operation and the child was left in the
care and custody of Mrs. S. The
Respondent did not appeal and in March,
1983, he took the child to Dublin to the
house of his parents.
The Court HELD: that having regard
to the facts and the fundamental impor-
tance of the appropriate forum for the
determination of the future welfare of the
child being the Courts in the country in
which it was born and intended to be
brought up, there was no question of a
deprivation of any of the constitutional
rights relied upon by the Respondent
which should prevent the Court from
applying the principle considered to be
appropriate in relation to the comity
between courts and in making an order
for the return of the child to the care of
the Applicant who must only deal with it
in accordance with the determination of
the English Courts to which the Respon-
dent, who had originally invoked their
jurisdiction, had full access.
Northampton
Co. Council
-v-
ABF and MBF
(2 Novem-
ber, 1981, High Court per Hamilton, J.
[1983] GILSI ii.) — distinguished.
In the Matter of Article 40 of the
constitution and In the Matter of S.S. and
Infant Kent County Council
-v-
C.S. -
High Court (per Finaly. P.) - 9June, 1983-
unreported.
Damian McHugh
Copies of judgments in the above
cases are available on request from
the Soc i e t y 's L i b r a r y. The
photocopying rate is lOp per page.
(Students — 5p per page.)
VII