In the Matter of the Ex-parte application of Poka Biki [1995] PGNC 117; [1995] PNGLR 336 (7 February 1995)

PNG Law Reports 1995

[1995] PNGLR 336 - In the Matter of the Ex-parte application of Poka Biki 

[1995] PNGLR 336

N1299

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE EX-PARTE APPLICATION OF POKA BIKI

Waigani

Doherty J

2 February 1995

7 February 1995

JUDICIAL REVIEW - Delay in bringing proceedings for judicial reivew - Orders of District Court made in the absence of a party - Liquor Licensing Act (Ch 312) - Constitution - Damages against a magistrate - Section 247 District Courts Act - Right to be heard s 37(11.

CONSTITUTIONAL LAW - “Forfeiture” a penalty - Right to be heard - Breach of Constitutional right.

Facts

One Gior Kuka pleaded guilty to selling liquor without a licence conrary to s 98(1)(a) of the Liquor Licensing Act (Ch 312). The District Court ordered forfeiture of the liquor found on the premises and the cancellation of the trading licence. The applicant, the owner of the trading lience, who had not been charged or appeared before the District Court applied for judicial review and for damages for loss of income due to the closure of the business. Giori Kuka had been convicted in October 1993 and the judicial review application was filed in June 1994.

Held

N1>1.       The period of 4 months within which to institute proceedings for judicial review is not a mandatory period and undue delay can be a lesser period and can even be longer. In assessing whether or not there has been undue delay, the Court must consider the facts in each case before it.

N1>2.       The order was a liability affecting the applicant was contrary to s 37(11) of the Constitution to make an order affecting the applicant without prior notice having been given to him.

N1>3.       Closure of the business was in excess of the jurisdiction as it was not provided for in the Liquor Licensing Act (Ch 312) and the applicant had not been convicted of an offence under the Trading Act (Ch 324).

N1>4.       Section 98(3) of the Liquor Licensing Act enabled only the forfeiture of liquor in the possession of a defendant and not liquor belonging to another person who had not een convicted.

N1>5.       No award of damages for the closure of the applicant’s business could be made without evidence of quantum and in any event damages could not be awarded against the State as the State had not been given notice of the claim for damages.

N1>6.       The claim for damages properly lay against the magistrate under s 247 of the District Court Act and that claim would have to be exhausted before judicial review proceedings could be brought.

Cases Cited

Amadis v State

Counsel

Mr Batata, for the applicant.

7 February 1995

DOHERTY J: The applicant applies for judicial review of a decision of the Boroko District Court. Proceedings were filed and served on the Solicitor General who filed an appearance by notice of intention to defend but has not appeared in this hearing although he has been called.

The decision of the District Court at Boroko involved a defendant Gior Kuka. He was charged and, from the facts, he apparently pleaded guilty to a count of selling liquor without a licence contrary to s 98(1)(a) of the Liquor Licensing Act, Ch 312.

According to the information in the statement of facts before the District Court he sold five (5) bottles of beer from the back of a trade store at Morata on 19 October 1993. On 25 October 1993 the Court fined him K500.00, ordered “all exhibit be forfeited to the State”, and further ordered that the “‘tuckerbox licence’ be cancelled” [sic].

The licence to trade belonged to the applicant in this Court Poka Biki and not to the defendant in the District Court. Some (according to the evidence here the majority) of the cartons of beer belonged to the applicant and not to the defendant in the District Court.

The applicant in this Court seeks orders that the decision of the Boroko District Court relating to the licence and forfeiture be quashed. In his statement in support of the application he further asked for damages for loss of income and profit from the 18 March 1994.

The original decision of the Boroko District Court was in October 1993 and on the face of it there has been a delay in bringing this application. I intend to deal with that aspect of this case first. The Rules of the National Court, O 16 r 4(1) provide that if the District Court considers that there has been undue delay in making an application for judicial review then it may refuse to grant leave or it may refuse to grant any relief sought. In the matter of certiorari, the rules consider the relevant period for purposes of undue delay is four months after the date of the proceedings.

The application in this case was made by way of originating summons filed on 6 June 1994. The Court files tend to show that the applicant was not present when the District Court hearing proceeded against Gior Kuka. He says he was not aware of the order concerning the licence for the tuckershop until the police arrived at the premises some period after the Court decision which he estimated to be in the region of 3 - 4 weeks. The shop was closed as ordered by the police and after a further period of 1-2 months when the goods in the shop started to go bad, he sought assistance of a lawyer.

There then appears to be a delay whilst they collected some money to pay fees and a further delay that is not explained by the lawyer between the instructions being finalised and the originating summons being filed in the National Court. It is clear from case law, in particular the case of State v Giddings [1981] PNGLR 423 that the four months referred to in O 16 r 4 is not a mandatory period. Undue delay can be of a lesser period and has been longer (eg: see Amadis v The State & Lowa & Ors, unreported N 1181). It has been held that even two weeks can be unduly long. The Court must consider the facts in each case before it.

In the circumstances I accept that the applicant did not fully realise the existence of the order until the arrival of the police on the premises with the order to be executed. There was some delay on their part and further delay on the part of the lawyer hired. In the circumstances of the case, I do not feel that there has been undue delay on the part of the applicant and I do not dismiss this application on those grounds.

I now move to the facts of the case:

ORDER FOR CLOSURE OF THE TUCKERSHOP

Provisions of s 98 of the Liquor Licensing Act, Ch 312, empower the Court to impose a fine of not less than K1000.00 and in default a term of imprisonment of six months. The Court has no power to impose any lesser penalty.

Under s 98(3) where a person is found guilty contrary to s 98 “all liquor in his possession, together with the vessels containing the liquor, is forfeited to the State”. Hence the powers of the Court contained in this section are limited to a fine and forfeiture of the liquor in the possession of the defendant and do not extend to closing the premises of a person who is not a defendant.

Section 82 of the Liquor Licensing Act makes provisions for forfeiture of a licence and ss 83 and 84 for suspension of that licence where certain criminal offences have occurred. The licence may be cancelled or suspended by application to the Commissioner under s 86.

On the facts before me I am satisfied that there was not any application to the Commissioner in this case.

A licence to trade as a shop is governed by provisions of the Trading Act, Ch 324. This provides for a licence to trade to be issued for a term of one year. Such a licence can be cancelled or suspended on the conviction of the licensee for any offence against the Trading Act, (s 7 Trading Act Ch 324). There are various offences under the Trading Act itself but I am satisfied on the facts that no charge was laid against the applicant or Gior Kuka under that Act.

On the facts before me I am satisfied that the learned magistrate did not have a conviction relevant to the Liquor Licensing Act nor to the Trading Act which would have enabled the cancellation of the trading licence in this case.

I am also satisfied on the facts that the defendant in the District Court, Gior Kuka was not in fact the owner of the trade store at all, he is referred to in the statement of facts as a storekeeper and the learned magistrate acted in excess of the jurisdiction in making an order for forfeiture of a trading licence when there was no legal power to do so.

I also consider it unjust and contrary to the provisions of s 37(11) of the Constitution to forfeit the licence to trade without first giving notice to the licence holder that the Court was considering such an action. Section 37(11) provides:

“A determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority prescribed by law or agreed by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time.”

The concept of being fairly heard includes giving the person the chance to speak on his own behalf or have someone speak for him. I am satisfied in this case the applicant did not know that the case was being heard which would involve an order against him and therefore his right to be heard was not upheld. In these circumstances, I quash O 3 of the District Court Order and order the reinstatement of the trading licence belonging to the Poka Biki, the applicant herein.

FORFEITURE OF LIQUOR

The District Court also ordered the forfeiture of the liquor to the State. Section 98(3) of the Liquor Licensing Act provides for the forfeiture of “all Liquor in his possession” (underlining mine). Clearly from the statement of facts there was no distinction brought between liquor belonging to the defendant Gior Kuka and liquor belonging to anyone else and the learned magistrate was not informed that the liquor could belong to another person. It is not surprising therefore that when the order was made it applied to all the liquor that was before the Court. Partly from sworn evidence adduced before this Court and partly from the bar table (which is not evidence before the Court), it would seem that liquor of the man Gior Kuka together with liquor belonging to the applicant were together in one place and siezed by the police when the information was laid against Gior Kuka.

The court record at the District Court records: “admit 40 cartons of beer as exhibits”. There has been no distinction between the defendant’s beer and the applicant’s, and the learned magistrate made an order for forfeiture of all of the exhibits. The defendant’s statement in the lower court, which is very difficult to read, appears to say, “plenty children play with us so we sell the beer and use the money”. This may relate to counsel’s referral to Gior Kuka holding beer on behalf of a rugby league club. I cannot conjecture without facts but I am satisfied on the facts before me that there was more than one person’s beer intermingled with the exhibits. Again forfeiture is a penalty and involves a civil and/or criminal liability. The applicant could not be heard in the District Court and, as I have noted above, forfeiture of his goods amounts to breach of his constitutional right.

Without direct evidence and finding who owned what among the exhibited 40 cartons of beer I am not prepared to make an order restoring some of that beer to the applicant. I therefore order that the ownership of the exhibits be referred back to the District Court for determination.

DAMAGES

The applicant claims damages for the period which he was not able to operate his business. The claim for damages is for loss of income and profit and is stated as relief sought in the statement in support of the applications. Order 16 r 7 provides that in an application for judicial review the Court may award damages if:

N2>(a)      The applicant has included in the statement in support of his application for leave a claim for damages.

N2>(b)      The Court is satisfied so that if the claim had been made in action begun by the applicant at the time of making his application he could have been awarded damages. The provisions of Order 8, Division 2 apply to such a claim.

The applicant in sworn evidence before the Court said he lost K20,000.00. It is not clear exactly what he lost. He did not seem clear himself and this is explained by his counsel and by his brother (who gave evidence) that he is a man of no formal education and dependent on others for compiling of accounts.

I do not criticise him for that status but in a Court seeking damages, the Court cannot pick a figure out of the air where an applicant is claiming loss of income. Further the applicant appears to claim against the State and the State has not been given notice of any such claim. The applicant is critical of the action taken against him in his absence in the District Court and what he is now asking this Court to do amounts to the same type of order. I consider that this Court cannot make an award of damages in a situation where it is being asked to judicially review by way of certiorari the decision of a lower court without due notice and compliance with legislation. The legislation viz. the District Court Act, Ch 40, s 247 sets out a definite procedure for claims by persons injured by an act done by a magistrate who has exceeded his jurisdiction.

I consider that the law has clearly provided an action for damages arising from a judicial act in excess of the jurisdiction and must lie against the magistrate and not against anyone else who has not been joined as a party to these proceedings. The provisions are s 247 of the District Court Act which provide:

N2>Section 247   Act not within jurisdiction

(1)      Subject to this Part, a person injured by an act done by a Magistrate in a matter in which by law he has no jurisdiction or in which he has exceeded his jurisdiction, or by an act done under a conviction or order made or warrant issued by a Magistrate in any such matter, may maintain an action against the Magistrate.

(2)      An action referred to in Subsection (1) is not maintainable for anything done under:

(a)      a conviction or order; or

(b)      a warrant which was issued by the Magistrate to procure the appearance of the person charged, and that has been followed by a conviction or order in the same matter, until after the conviction or order has been quashed or set aside under this Act.

I consider it quite clear that proceedings are to be instituted against a magistrate in the first instance and not against the State and such proceedings are not maintainable until the conviction or order is set aside or quashed.

Having quashed Orders 2 and 3 of the District Court it is now open to the applicant to consider the provisions of s 247. I do not consider that this Court can award damages because:

N2>(1)      It has no quantum before it.

N2>(2)      It cannot award damages against the State when the State has not been joined as a party.

N2>(3)      There is a statutory remedy provided by the District Court Act which must be exhausted before this claim can be brought by way of judicial review.

Damages are refused. Accordingly the Court quashes Orders 2 and 3 of the District Court made on 25 October 1993 and remits the matter of ownership of the liquor to the District court for re-hearing.

Lawyer for the applicant: Michael Cholai.