Western Highlands Provincial Liquor Licencing Board v Kumar [2009] PGSC 41; SC1039 (15 June 2009)

SC1039

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 42 OF 2009

BETWEEN:

WESTERN HIGHLANDS PROVINCIAL LIQUOR LICENCING BOARD
First Appellant

WESTERN HIGHLANDS PROVINCIAL GOVERNMENT
Second Appellant

AND:

RAM KUMAR
First Respondent

PACIFIC ARABICA COFFEE DEVELOPMENT LTD
Second Respondent

Waigani: Injia, CJ
2009: 15th June

SUPREME COURT – practice and procedure - application for stay pending determination of the appeal - principles on refusal or grant of stay discussed and considered - grant or refusal of stay discretionary and is exercised on proper principles and grounds – sale of intoxicating liquor under expired license - the Court cannot by its conduct allow or encourage persons claiming a right under an expired statutory license or permit to perpetuate illegal activities carried out in breach of the law and to gain from it - application for stay order grant - s 19 Supreme Court

Cases Cited:

McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279

Counsel:

H Nii, for the Appellant
A Manase, for the Respondent

15th June, 2009

1. INJIA, CJ: This is the appellants’ application for stay pending determination of the appeal made pursuant to s 19 of the Supreme Court Act. It is contested by the respondents.

2. The principles on grant of stay are set out in McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279 (McHardy case). The grant or refusal of stay is discretionary and it is exercised on proper principles and on proper grounds. The Court must start from the basic premise that the judgment creditor is entitled to enjoy the fruits of the judgment. There are ten (10) other considerations which are enumerated in that case which may be considered. The circumstances of a particular case may warrant greater or less or even no weight to a particular relevant factor(s) and then again, that is a matter of discretion. The onus is on the applicant to persuade the Court to exercise its discretion in his favor.

3. Counsel representing the parties made submissions on the application of the McHardy principles to the circumstances of this case. I have considered the material and submissions put to me by both counsel. I apply the considerations set out in McHardy which are relevant to the circumstances of this case in the following manner.

4. I consider the protection and preservation of the public interest in the protection of society through regulation of the sale and consumption of intoxicating liquor to be the most important and the most critical consideration. This consideration comes directly under and as part and parcel of the overall interest of justice consideration in the McHardy case. It is clear from the material before me that the appellants’ application for interim stay order made before the trial judge was premised on the basis that Licence No. 01/07 dated 19th January 2007 issued to Mr Kumar by WHPLLB was "renewed in 2008 and 2009 by payment of the application fees": see paragraphs (b), ( c) & (d) of Notice of Motion filed on 18th March 2009. This premise is wrong in law. Lodgment of an application for renewal license is not the act of renewal of license and does not necessarily result in grant of a renewal license in law under the WHPG Liquor (Licensing and Management) Act of 1999.

5. In any event, there was no evidence put before the trial judge that the WHPLLB had treated the lodgment of the two renewal applications as a grant of renewal license. Indeed the evidence was that the appellants’ application fee was pending before the WHPLLB and later, on 13th February 2009 the WHPLLB went on to revoke the license it granted on 19th January 2007 which had already expired on 31st December 2007. The license still remains expired to this day. The respondents continued to trade in wholesale liquor throughout WHP in 2008 and 2009 on the erroneous legal assumption that the lodgment of their two applications for renewal constituted grant of Renewal License. As I intimated to counsel during submissions, there is no doubt that the appellants were illegally trading in liquor under an expired license. Section 4 (1) makes this clear. This provision prohibits a person from selling and or dealing with liquor in the Province without a license for that purpose.

6. Sale of intoxicating liquor is a regulated industry because of the potent social evil it can bring to the community if its use is abused, particularly when it is taken in large quantities. A person should not be allowed by any government regulating authority to sell or deal with liquor without an appropriate license issued by the appropriate authority. The Court as the custodian of the laws of this County should not, by its conduct, facilitate or encourage illegal sale of liquor without a valid liquor dealers license.

7. It appears from the material placed before the trial judge that the WHPLLB sat on the respondents’ two applications for renewal license and did nothing to stop the sale of liquor by the respondents. Mr Manase of counsel for the applicants submit that by its conduct the appellants authorized the sale of liquor under the two renewal applications. I do not think the appellants silence over the respondents’ sales activities changed the illegal status of the liquor sale that was taking place under the expired license.

8. In the grounds of appeal set out in the Notice of Appeal, the appellants have raised a serious case on error of law committed by the trial judge as to his understanding of the legal status of an expired liquor license issued under the provincial liquor law. The stay order issued by the trial judge has allowed the respondents to continue illegal trading in liquor sales in WHP under an expired license. The decision by WHPLLB to revoke whatever remains of the expired license further strengthens the appellants’ case against illegal sale of liquor in WHP.

9. As to other relevant considerations under Mc Hardy which might impact on the exercise of discretion, the balance of convenience, prejudice and financial ability of the appellants and question of damages may have some relevance but I do not think those considerations taken individually or collectively, change the fact the conduct of liquor sales activities is a regulated industry and the Court cannot by its conduct allow or encourage persons claiming a right under an expired statutory license or permit to perpetuate illegal activities carried out in breach of the law and to gain from it.

10. For these reasons, I grant stay under s 19 of the Supreme Court Act in terms of paragraph 1 (a) & (b) of the Appellants’ Notice of Motion filed on 11th May 2009 as amended, with costs to the appellants.
_________________________________________

Harvey Nii Lawyers: Lawyer for the Appellants
Manase & Co Lawyers: Lawyer for the Respondents