307 / 346
GAZETTE
JANUARY/FEBRUARY 1983
whether a restaurant business is
carried on for the purpose of the
said section.
4. Are the meals supplied as set out in
paragraph 4 hereof supplied to the
public within the meaning of the
said section.
5. On the facts stated in paragraph 4
hereof is the Applicant entitled in
law to the Certificate sought."
In the High Court, Counsel for the
Applicant argued that in this case the
principal difficulty was as to whether
or not the meals supplied were
supplied to the public. No question
arose in this case as to whether or not
the premises were structurally
adapted for use as a restaurant but a
question did arise as to whether it was ^
bona fide and mainly used for such
purpose.
The Court Held that an application
for a renewal of an On Licence with a
Certificate under Section 12 of the
1927 Act, the Applicant must be able
to show, if so required, that apart
from lawfully exempted occasions or
events he has used his premises bona
fide and mainly for supplying sub-
stantial meals to the public. Normally
the assurance by the officer in charge
of the Garda Siochana of the
Licensing area that there has been no
departure by the Licensee in the use
of his premises from the qualifica-
tions prescribed by the statute should
suffice. In case of doubt, as for
example, if meals are supplied only in
circumstances provided for by
Exemption Orders and private func-
tions and not otherwise, evidence
should be offered on behalf of the
Applicant, with the assistance of the
Garda Superintendent by observa-
tion. Explanation or evidence should
be given to the Court. It is not
sufficient for the Superintendent to
say "I am leaving it to the Court" as
happened in this case. The District
Justice has no investigative function
and is dependent entirely upon the
evidence adduced before him.
Court. It is not sufficient for the
Superintendent to say "I am leaving it
to the Court" as happened in this
case. The District Justice has no
investigative function and is
dependent entirely upon the evidence
adduced before him.
In relation to the premises the
subject matter of this application it
appears to have been constructed at a
site where it is reasonably anticipated
that members of the public will attend
in large number for race meetings and
will require substantial meals and
other refreshments. If members of the
public attend for other reasons they
should be able to find the services of a
licensed premises certified under the
1927 Act to be a Restaurant. Whether
such services are sufficiently available
to the public within permitted hours
to indicate that the premises are bona
fide and mainly used for supplying
substantial meals to the public is a
matter of inference from evidence of
use. A court might take the view that
there are special circumstances of the
location and pattern of public resort
thereto which might justify the
Licensee as a matter of prudence not
to keep his premises continuously
open during all permitted hours for
supplying substantial meals to the
public. On the other hand the Court
might take the view, taking all the
circumstances into consideration,
that members of the public resorting
to the premises have insufficient
opportunity to avail of the services of
substantial meals and consequently
the premises are not bona fide or
mainly used as a Restaurant.
The Court answered the queries of
the District Justice as follows:—
1. It is not obligatory on the court to
grant the Application with no more
than the absence of objection by
the officer in charge of the Garda
Siochana for the Licensing area.
2. The supply of substantial meals at
p r i v a te f u n c t i o ns or in
circumstances provided for by
exemption orders should not be
taken into account.
3. The Supply of substantial meals to
racegoers on race days should be
taken into account.
4. As the circumstances relating to
the supplying of meals as set out in
paragraph 4 differs significantly as
between exempted and non
exempted functions it is not
possible to answer this query in the
form posed. Regard should be had
to the reference in the foregoing
opinion to the opportunities
available to the public as a matter
of their choice as against restrictive
qualifications imposed by the user
of the premises.
5. As some of the relevant evidence in
this case was adduced after the
questions were submitted the
Court left the final question
unanswered and remitted the case
to the District Justice with the
Courts opinion as aforesaid and the
answers to the other queries.
In the matter of Section 12 of the
Intoxicating Liquor Act 1927 (Patrick
Walsh Applicant).
(The High Court)
(per Gannon J.) — 30 November
1981 — unreported.
Thelma King
PRACTICE — SOLICITOR'S
COSTS
It is not the function of the Taxing
Master to assess the nature,
quality or value of work done by
Council in relation to the conduct
of a case. The Taxing Master's
rulings on Solicitor's costs in
High Court proceedings are sub-
ject to review by the Court
whether for error in principle or
not.
The matter came before the High
Court by way of Application pursuant
to Order 99 rule 38 of the Rules of the
Superior Courts by the Solicitor for
the prosecutor for a review by the
Court of the Certificate of the Taxing
Master in respect of the taxation of
costs awarded to the prosecutor. The
prosecutor had obtained a conditional
order of certiorari quashing an order
discharging him from the Defence
forces upon the alleged grounds that
his military service was unsatisfactory.
The prosecutor had also been
successful in making the conditional
order absolute. The first named
respondent appealed unsuccessfully
to the Supreme Court and that Court
affirmed the High Court Order and
awarded the prosecutor the costs of
his appeal.
In due course the prosecutor's
Solicitor proceeded for the taxation of
his costs before the Taxing Master.
The Taxing Master made certain dis-
allowances in relation to (A) the
Solicitor's own charges which
resulted in reductions of the Solicitor's
instructions fees and disallowances
for attending certain consultations,
for attending on Counsel in Court on
two unsuccessful ex-parte applica-
tions, for attending Counsel for the
settling of draft notices of motion and
certain affidavits and, (B) reductions
in disbursements made by the
Solicitor which consisted of dis-
allowances of fees paid to Counsel for
attending certain consultations, for
settling draft affidavits, for settling a
draft notice of motion, fees on briefs,
the preparation of a list of Authorities
for Court reference and postal
charges.
In ruling on the application the
Court held that
(1) It is not the function of the
Taxing Master to assess the
nature or value of the quality of
the work done or required to be
done by Counsel in preparing for
Court hearing or in the conduct
of cases in Court. The case of
Dunne-v-O 'Neill
[ 1974] IR 180
applied.
iii