Kwong v Betio District Liquor Committee [2002] KIHC 40; Civil Case 23 of 2001 (7 October 2002)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 23 of 2001

Between:

OSONG KWONG
(ON BEHALF OF IOSEFA KWONG)
First Applicant

RIITIA IOSEFA KWONG
Second Applicant

And:

BETIO DISTRICT LIQUOR COMMITTEE
Respondent

For the Applicants: Ms Emma Hibling
For the Respondent: Mr Birimaka Tekanene

Date of Hearing: 10 October 2002

REASONS

No one should be satisfied with the course of these proceedings. They arise out of issue of licences for the year 2001 under the Liquor Licensing Ordinance. That the proceedings should have taken nearly two years to come to hearing is more than regrettable: it is a reproach to the judicial system. Without trying to identify responsibility for delay, it appears to rest in several different places.

On 19 January 2001 the second applicant, Riitia Iosefa Kwong, applied to the Betio District Liquor Committee for a special case to be stated to the High Court pursuant to section 46 of the Ordinance. The applicant described herself as "an aggrieved applicant at the meeting of your Committee, sitting on 20 November 2000 to hearing and determining applications for granting or renewing certain liquor licences for 2001, including mine". Section 46 is mandatory ("and the Committee shall state a case accordingly"). Once the application was made the Committee was obliged to state the case and should have done so immediately. Yet it did nothing. Perhaps it did not know what to do. The application itself is prolix: I found it difficult to follow until I have the benefit of the explanations of Ms Hibling and Mr Tekanene.

The applicants gave Notice of Motion for Mandamus dated 25 June to oblige the Committee to state a case. According to the Court stamp the Notice was received in the Registry on 18 July. I gave leave to make the application on 19 September but it was not served on the Committee until 1 May 2002. On 2 August application was listed for hearing on 13 September. On the preceding day the Committee had written a letter to the High Court stating a case. So the application was dismissed and the applicants given costs. The case finally came on for hearing yesterday Thursday 10 October.

I hope this lamentable chronicle of events will not be repeated in any other case.

At a glance the Liquor Ordinance, made originally in 1973, is more appropriate to the conditions in an English provincial town or in an Australian city in the 50's and 60's of the 20^th century rather than to the conditions on Tarawa at the beginning of the 21^st century. Like all licensing legislation it is complex. Lay people cannot be expected to understand it, let alone follow it, without legal advice. I cannot emphasise too strongly that those involved in the administration of the Ordinance should seek legal advice from the Attorney General's office as soon as they are uncertain what to do. Likewise those applying for licences etc. would be well advised to seek the help of the lawyers.

Unfortunately because of the delay it is now too late to give any of the relief the applicants sought. The time has passed. Sometimes courts are unable to give a remedy. This is such a case: not only has the licensing year 2001 passed but the year 2002 is towards its end.

Fortunately because licences are granted annually to coincide with the calendar year, the process is just about to begin again. This will give the Committee a fresh opportunity to follow the procedures in the Ordinance, technical though they may seem. The Committee is bound by them: they must be followed. The applicants will also have the opportunity to exercise their rights as set out in the Ordinance.

I had thought, at Ms Hibling's request, to express views on the disparate points raised in the application. I have decided that it would be better not to do so. Whatever I say could not be regarded as authoritative: I have not had the benefit of evidence to establish facts nor of detailed argument. I could be wrong in any opinion I express. Moreover to express views now might disqualify me from hearing matters should they come before the Court in future. It is better that I say no more.

I shall hear counsel as to what order, if any, I should make.

Dated the day of October 2002

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE