Regina v District Commissioner for East New Britain District; ex parte Chan Co [1971] PGLawRp 1; [1971] PNGLR 36 (1 March 1971)

[1971-72] PNGLR 36

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V

THE DISTRICT COMMISSIONER FOR THE EAST NEW BRITAIN DISTRICT;
EX PARTE CHAN CONSOLIDATED PTY. LTD.

Port Moresby
Minogue CJ Clarkson Kelly JJ

22-23 February 1971
1 March 1971

PREROGATIVE WRITS - Mandamus - Licence for place of entertainment - Whether Licensing Officer has discretion to refuse to grant licence - Licences Ordinance s. 7(1) - Places of Entertainment Regulations.

Section 7 (1) of the Licences Ordinance 1932-1952 requires licences to be obtained by inter alia “persons who keep places of entertainment other than clubs and hotels”. The Places of Entertainment Regulations, made under the Licences Ordinance, confer on the licensing officer a power to suspend or cancel licences. The regulations confer no discretion on the licensing officer with respect to the granting of a licence. The licensing officer in New Britain refused to grant a company a licence to build a picture theatre in Kokopo. On the return of an order nisi for mandamus—

Held

By the Full Court, that the licensing officer should have granted the licence as, on the proper construction of the Ordinance and Regulations, he has no discretion to refuse an application where it is properly made and the appropriate fee paid.

Semble

The power to control licences is by suspension or cancellation of licences on the grounds set out in the regulations.

Cases Referred To

Julius v. The Lord Bishop of Oxford (1880), 5 App. Cas. 214; R. v. Mahoney; Ex parte Johnson [1931] HCA 36; (1931), 46 C.L.R. 131; Attorney-General (Canada) v. Attorney-General (British Columbia), [1930] A.C. 111; Buckle v. Cook, Ex parte Cook [1917] Q.S.R. 144; on appeal [1917] HCA 35; (1917), 23 C.L.R. 311; R. v. Maroochy Shire Council; Ex parte Gearside, [1926] Q.S.R. 59.

Mandamus

The nature of the proceedings and the facts appear in the judgment of the Court.

Counsel

Richard Wood, for the prosecutor.
Kearney, for the respondent.
Rissen, for the respondent, Thomas Bo-Lin Tse.
Cur. adv. vult.

MINOGUE CJ CLARKSON KELLY JJ: delivered the following judgment: This is the return of an order nisi calling upon the District Commissioner for the East New Britain District to show cause why a Writ of Mandamus shoul be issued against him in respect of his dealing with an apan application by the prosecutor for a licence under the Places of Entertainment Regulations.

The prosecutor, Chan Consolidated Pty. Ltd., became interested in building a picture theatre in Kokopo. After some correspondence with the Kokopo Building Board it made a formal application on 15th October, 1969, for a permit to build a theatre on land which it identified. This application came to the notice of the District Commissioner who was the Licensing Officer under the Places of Entertainment Regulations. He wrote to the prosecutor suggesting that before the prosecutor incurred any expense it should “take the matter of obtaining a permit to operate such a theatre up with the issuing authority” previously described as the “Entertainment Licensing Authority”. The letter stated that such authority “considers it would be difficult to justify the issue of a second permit”, one licence for a picture theatre in the Kokopo area having already been issued on 6th June, 1969, and renewed on 11th July, 1969. The prosecutor, on 25th February, 1970, completed an application for a licence to keep a place of entertainment on specified land in Kokopo. This was sent to the District Commissioner by the prosecutor’s solicitors attached to a letter dated 2nd March, 1970. By letter dated 12th March, 1970, the Acting District Commissioner informed the prosecutor’s solicitors that the licence already issued for the Kokopo area would meet the requirements of the public in that area for some time to come and that accordingly the Licensing Authority was not prepared to grant the prosecutor’s application. It is quite clear from the affidavit filed by the District Commissioner that he dealt with the application on the assumption that he had a discretion to determine whether a licence should issue or not.

In July, 1970, the Prosecutor made its present application which by an order of the Chief Justice made on 21st October, 1970, was referred to the Full Court. The prosecutor relies primarily on the contention that the licensing officer is in the circumstances obliged to grant the licence and therefore has not the discretionary power to refuse it which the licensing officer purported to exercise. Further submissions were made challenging the decision of the Licensing Officer if such a discretion existed.

The relevant regulations, the Places of Entertainment Regulations, are made under the Licences Ordinance 1923-1952 and it becomes necessary to examine in some detail the provisions of both the Ordinance and the regulations. The original Ordinance came into effect on 31st March, 1923. It provided in substance that no person should engage in the business of buying or selling coconuts or copra or in general mercantile business unless he was authorized to do so by a licence issued under the Ordinance. It then provided for the issue of traders’ and pedlars’ licences and these provisions of the Ordinance have, over the years, been substantially amended. The Ordinance also provided by s. 7(1) that the Administrator might make regulations not inconsistent with the Ordinance:

(a) Requiring that licences be obtained by:

(i) &##160; h60; hawkers mf cotiodioths other than persons red tain ps&#82icencp>

(ii) ټ persopersopersons whns who owno own bicy bicycles;cles;

(iii) &#16 wn wieveh oles oths oths other ther than bicycles or motor vehicles;

(iv) &#persons who own or a or are in possession of fireand ation;

(v) ҈  pe0; pe0; personsrsoo carr carry on business as caterers or keepers of restaurants;

(vii)&#ii) perwho klep p oces of entn entnment other than clubs and hotels; and

(b) crrescribsng the conditionstions under which liceof anthe cs mentioned in paragraph (a) may be isse issued, ued, and tand the form of and particulars to be stated in such licences; and

(d);ټ Prescribing the particulars to be stated on notice boards requirequired to d to be exhibited by holders of traders’ licences; and

(e) &##160; Prescriescribing thi limits within which any licence issued under this Ordinance or the regulations shall be valid; and

(f) ټ Piescr ting the cone conditions subject to which tsines which a licence ence has bhas been granted may be carried on, and the classes of persons from whom any commodity may be purchased byholdethe le; and

(g) Piovidorg fempexons irom trom the requirements of this Ordinance; and

(h) Providing a penalty for the breach of any regulation not exceeding for each oe a ff fifunds or in defaulefault impt imprisonrisonment for six months.

These provisions have remained unchanged since 1923 except that in 1934 a further sub-paragraph, not now relevant, was added to paragraph (a) and a paragraph (ea) was added as follows:

“(ea) ribin matters wers which aich are necessary or convenient to be prescribed relating to any licence issued under this Ordinance o reguns; and...”

It will be seen that the addition of par. (ea) in 1 in 1934 d934 does not affect the question whether or not a discretion to grant or refuse a licence reposes in the Licensing Officer because its operation is restricted to matters relating to “any licence issued”.

So much for the Ordinance.

Regulations were made under the Ordinance as early as 31st July, 1923, but they referred only to traders’ and pedlars’ licences. We are concerned with regulations made pursuant to s. 7(1)(vii) of the Ordinance, namely regulations requiring that licences be obtained by “persons who keep places of entertainment other than clubs and hotels” and the first regulations made pursuant to this power were made in 1927. Since then substantial amendments have been made to bring them to their present form.

The question before us relates to the powers and duties of the Licensing Officer when he came to consider the prosecutor’s application. The arguments before us ranged over a wide field. It was argued on the one hand that the present case was one in which if the tests propounded by the Lord Chancellor in Julius v. The Lord Bishop of Oxford[xxiv]1 were applied it woulseen then that the power to issue the licence was coupled with a duty to exercise that power when called upon to do so. This was the conclusion reached by Evatt & McTiernan JJ., in R. v. Mahony; Ex parte Johnson[xxv]2 and by the Judicial Ctee inee in Attorney-General (Canada) v. Attorney-General (British Columbia)[xxvi]3 on the provisions there being considered. On the other han general considerations whis which influenced the Full Court of Queensland in Buckle v. Cook; Ex parte Cook[xxvii]4 and R.v. Maroochy Shhy Shhy Shire Council; Ex parte Gearside[xxviii]5 in deciding that a discretxon existed in the circumstances of those cases were advanced in support of the contrary view.

But in the final analysis—and none of the cases to which we were referred suggests the contrary—the question of whether a discretion to grant or not to grant the licence resides in the Licensing Officer must be determined on the proper construction of the relevant statutory provisions. The matters referred to in the cases mentioned are only aids to construction and not independent principles of law which modify the statutory provisions.

In the present case there is no provision in either s. 7 of the Ordinance or in the Regulations which expressly confers on the Licensing Officer a discretion to refuse an application made in proper form. Reg. 3(1) provides that no person shall keep any place of entertainment unless he has a licence and reg. 3(2) provides for a written application in a prescribed form. Regulations 4 and 5 provide for the period of the licence and the fee payable for it. Regulation 6 provides that every licence issued shall be granted subject to a number of conditions which are then set out, the relevant provision here being par. (a) which reads as follows:

“(a) ; Tha upon inspeinspection tion or upon obtaining satisfactory evidence, it appears to a Licensing Officer that, owing to:

(i); the position, insufficienry, or unsuitableness ofss of a pl a place of entertainment;

(ii) ; the improper character ofer of the licensee or of any person resorting to a place of entertainment;

(iiA) ҈ act the plf pubnterentertainment is or is likely to be dangerous to pubo public hlic healthealth or s or safety or constitutes or is likely to itute a fire hazard; or

(iii) anyr sufficient caus causecause, it is desirable or expedient to do so, the Licensing Officer may suspend or cancel the licence.”

Further, because of the history of the Regulatio whi willrefer we do e do not cnot considonsider that the present Regulations should be so construed as to imply any discretion in the Licensing Officer to refuse a licence. The control which the Regulations now sets up is effected not by refusing licences but by suspending or cancelling them.

In their original form as promulgated in 1927 regs. 1, 2, 3, 4 and 5, were in substantially the same form as now, but reg. 6 was essentially different from the present reg. 6(a) set out above. It provided:

“If, upon inspection or upon obtaining satisfactory evidence, it appears to a Licensing Officer that, owing to:

(a) the pos,tionufinsienic or y or unsuitableness of a place of entertainment;

(b) the imp operachar oferhe lthe licensee or of any person resorting to a place of entertainment; or

(c) 䃘&#1ny otufficcause ause

it is desirable or expedient to do so, the, the Lice Licensingnsing Offi Officer mcer may refuse, suspend or cancel the liceor the application for the licence which has been issued ored or made under these Regulations.”

Regulation 7 of the original Regulations then provided that every licence issued should be granted subject to conditions which were the same as that now contained in reg. 6(b) and another condition relating to seating accommodation which was amended in 1957 and repealed in 1958. Other amendments made are not relevant to the present enquiry.

It could well be argued in view of the limited terms of s. 7 of the Ordinance that the power to refuse a licence or an application therefor was removed from the Regulations because such a power could not be supported by the section; but whatever the reason for removal it is clear that an express power to refuse a licence on specified grounds which originally appeared in the Regulations has gone, and an express power to suspend or revoke the licence on the same grounds has been retained. Circumstances which under the original Regulations justified a refusal or suspension or cancellation now justify only suspension or cancellation of the licence.

For these reasons the first limb of the prosecutor’s argument succeeds and it becomes unnecessary for us to consider the alternative submissions.

Two further matters relating to the relief claimed require comment. Firstly, it appears that the prosecutor’s application for a licence was made before the theatre which he intended to erect had been built. We do not think this constitutes any bar to the prosecutor’s claim. If a person has not obtained a licence before he commences to “keep” a place of entertainment he would, the moment he commences to do so, commit a breach of reg. 3. If, having obtained a licence he endeavours during the currency of the licence, to keep a place of entertainment without first providing a sufficient and suitable place of entertainment the Licensing Officer may suspend or cancel the licence. There is nothing in the Regulations to prevent an application for a licence being made nor the licence from being granted before the licensee commences to keep the place of entertainment and it is only good sense that this should be so. Secondly, the prosecutor’s application if granted would have resulted in the issue of a licence which would have expired on 30th June last and for this reason it may be suggested that to grant the relief claimed would be futile. We do not think so. The application does not specify the period for which the licence is sought and if dealt with now can be considered as an application for a licence expiring on 30th June next.

The result is that in our view the Licensing Officer is not competent to refuse an application where it is properly made and the appropriate fee paid. Under the Ordinance and Regulations as they now stand his power to control licensees is by suspension or cancellation of licences on the grounds set out in reg. 6.

The proper order in the circumstances is that the respondent deal with the prosecutor’s application according to law.

Order absolute for Writ of Mandamus directed to respondent commanding him to deal with the prosecutor’s application according to law.

Solicitors for the Prosecutor: Cyril P. McCubbery & Co., as agents for: F. N. Warner Shand.
Solicitor for the Respondent: P. J. Clay, Crown Solicitor.
Solicitor for Thomas Bo-Lin Tse: G. R. Rissen.

[xxiv]1 (1880) 5 App. Cas. 214, at p. 223.
[xxv]2 [1931] HCA 36; (1931) 46 C.L.R. 131.
[xxvi]3 [1930] A.C. 111.
[xxvii]4 [1917] Q.S.R. 144; on appeal [1917] HCA 35; (1917) 23 C.L.R. 311.
[xxviii]5 [1926] Q.S.R. 59.