Maenu v Honiara Liquor Licensing Board [2005] SBHC 31; HCSI-CC 081 of 2004 (28 January 2005)

HC-CC NO. 081 of 2004

HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 081 of 2004

PAUL MAENU

-v-

HONIARA LIQUOR LICENSING BOARD

(MWANESALUA, J.)

Date of Hearing: 28th October 2004
Date of Judgment: 28th January 2005

P. Lavery for the Appellant
P. Afeau for the Respondent

JUDGMENT

(Mwanesalua, J.) This is an appeal by the proprietor of the Heron Tradewind Night Club ("the Club") Mr. Paul Maenu ("the Appellant") against the decision of the Honiara Liquor Licensing Board ("the Board") in refusing to grant a new liquor licence for the Club on 28th November 2003. The Club is located near the main road at Ranadi in Honiara. The application for the licence was lodged under section 20(1) of the Liquor Act (Cap.144) (the Act).

The Appellant's Case

The Appellant has two main contentions. First, that the whole conduct of hearing of his application was contrary to the rules of natural justice as the decision of the Board on 28th November 2003 was made in closed doors contrary to his rights of being offered an opportunity to be heard. Second, that the Board being a Statutory Body being required to be constituted under section 17 of the Act was improperly constituted under section 17(2) (b) of the Act in that no woman representative took part in the meeting and consequently the decision on the Appellant’s application on 28th November 2003 is void and of no effect.

The Appellant relied on affidavit evidence from the Appellant himself, Mr. John Idurara and Mr. Robert Chow sworn and filed on 17th, 24th and 28th May 2004 respectively. In his affidavit, the Appellant deposes -

"1. I am the Appellant in the "Case Stated". I was the Applicant for a liquor licence for the Heron Tradewind Night Club which was listed for hearing by the Respondent on the 28th November 2003 at the Central Magistrates Court at 9am. There were other Applicants there also;

2. All the Applicants waited outside closed doors of the Court house from 9.00am until 11.30am when the doors were opened and we were allowed in. Immediately the Chairman of the Board began to read out from a prepared note in front of him what were in the plainest terms the decisions of the Board on each case;

3. I exhibit hereto marked "PM1" a contemporaneous note of the meeting taken by my Solicitor. At page 1 it is recorded "Already discussed with members in private." At page 8 when dealing with my application it is recorded "Board are not willing to grant a licence." This confirms my understanding of what was said, the reading of decisions not the expressions of concerns. This is what happened at each case, some applications were granted, some deferred and some refused.

4. When the Chairman was dealing with my case I was confused. Having badly stated that the Board had decided not to grant me a licence and given his reasons, he then spoke of conditions which might if satisfied change the Boards' attitude. My view was that only the presence of my Solicitor did he later refer the matter back. We returned at 2.00pm.

5. My Solicitor then tried to address the concerns referred to in the decision and answer the objection of the representative of the Police. However, it was obvious that he was trying to persuade a body that had already made up its mind to change it. It did not look to me like a fair opportunity to put my case before the decision was made.

6. There was no woman or representative of women's groups on the Board. There was only one letter of objection but the Board clearly made its decision under the mistake of fact that there were more than one. There was no "alcohol related" death outside my premises and no evidence of such an event was put. Local knowledge is one thing, rumour and speculation is another. All I ask for is a fair hearing."

The Respondent's Case.

The Respondent's contentions are first, that the Respondent did not make the decision on the Appellant's application before hearing from the Appellant and second, that the Respondent did not prejudice the Appellant's application.

The Respondent did not file any affidavit in this appeal. However, it relied on the facts set forth in paragraphs 1, 2 and 4 of the Case Stated by the Respondent, pursuant to section 34(2) of the Act, filed on 9th March 2004. In other words, this appeal.

The Law.

Sections 23 and 26 of the Act provide as follows –

"Hearing of Applications.

23(1). Every person making an application for a licence other than a temporary licence, or for a renewal, removal or transfer of a licence, shall, save as otherwise provided, appear in person or by Counsel or a Solicitor, or, with the permission of the licensing authority, by any other person, at the hearing of the application before the licensing authority, unless such appearance is expressly dispensed with by the licensing authority for any reason which it considers sufficient.

(2) In the case of an application for a retail or wholesale licence, the licensing authority, being satisfied that the premises comply with the provisions of this Act and that no objection has been made, or appears to the licensing authority to exist, to the issue of the licence, shall grant its certificate for the issue of a licence without the personal appearance of the applicant or his representative:

Provided that the licensing authority at its discretion may, by notice in writing, require the applicant to appear personally in any particular case.

(3) The licensing authority may require the personal appearance before it of the manager of the premises to which an application relates and any other person whose attendance it considers necessary.

(4) Where any licensing authority deems it necessary to take evidence respecting any question to be determined by it, such evidence shall be given on oath and the Chairman is hereby empowered to administer Oaths.

(5) For the purposes of Parts XI and XII of the Penal Code (which relate to perjury and other offences relating to the administration of justice), all proceedings before a licensing authority shall be deemed to be judicial proceedings.

(6) Every licensing authority shall keep records of all its proceedings and, in particular, of the purpose for which any application to it was made, and notes of evidence given and of the arguments adduced and its decision thereon:

Provided that no decision of a licensing authority shall be quashed on appeal solely by reason of any omission or error in such record unless it appears that substantial miscarriage of justice has thereby, been occasioned.

Objection by licensing authority.

26(1) A licensing authority may of its own motion take notice of any matter or thing which, in the opinion of the licensing authority, constitutes an objection, whether or not any objection has been otherwise lodged.

(2) Where in respect of an application a licensing authority acts in pursuance of subsection (1), the licensing authority shall inform the applicant of the nature of the objection, and shall if the applicant so requests, adjourn the hearing for such period, not being less than seven days, as the licensing authority deems necessary to enable the applicant to reply thereto.

The Undisputed facts.

The Appellant lodged an application to the Board for the issue of a new liquor licence for the club in 2003. The application was set down for hearing before the Board at 9am on 28th November 2003 at the Central Magistrate Court. The Board held a private meeting in the Courtroom from 9am to 11.30am, in closed doors, on this date. The Board discussed the Appellant’s application and other applications during that private meeting. The Board opened the doors to begin the hearing on the applications at 11.30am. The Appellant and his Solicitor, Mr. Lavery went into the courtroom for the hearing. The Chairman of the Board then read out the Board's decisions on the applications to the applicants who were in the courtroom. Some applications were granted, some were refused and some were deferred to the next meeting of the Board.

Did the Board make the decision on the Appellant's application without hearing from the appellant at the private meeting in closed doors from 9am. to 11.30am.?

The Record of the Board proceedings for 28th November 2003 were not made available to the Court. However, these facts are derived from paragraphs 1 and 2 of the "Case Stated" which have bearing on this issue. The Board discussed the Appellant’s application during its private meeting. The Board objected to the application on its own motion on the grounds that extensive drunkenness was occurring in the immediate vicinity of the premises, that excessive noise emanated from the premises, that an "alcohol related" death had possibly occurred close to the premises, that the Club had not been run at all well, and as conceded later, that only one letter of complaint and not two had been received. These grounds of objection were also noted on page 8 of exhibit "PM1". I place limited weight on Exhibit "PM1" as its accuracy has not been confirmed by its author.

The following facts show that the Board did not make the decision on the Appellant's application during its private meeting. That it was during the private meeting that the Board objected to the application, that the Appellant was informed of the Board's grounds of objection during the hearing of his application which commenced after 11.30am, that the Appellant was told that he would be expected to make a reply to the Board's is grounds of objection, that the Appellant was given time to consult with his Counsel who was present, that the Appellant was advised of his right under section 26(2) of the Act to seek adjournment of the hearing to allow him to have time to prepare his reply to the grounds of objection by the Board to his application.

The meeting of the Board from 9am to 11.30am was merely convened for members of the Board. The Appellant was not expected to attend that meeting. That meeting could be held in closed doors if the Chairman of the Board so desire (s.17(1) of the Act). However, the Appellant was entitled to attend and be heard at the next stage of the meeting which began at 11.30am when the hearing of his application was made (see 23(1) of the Act).

Was the Appellant given a fair hearing by the Board?

The Appellant was notified of the date and the place for hearing of his application. He was informed in detail during the meeting on matters, which he had to address the Board. He was given an opportunity to correct or contradict the matters on which his application was objected. He was given opportunity to seek adjournment of the hearing of his application, so that he could have adequate time within which to prepare a reply to the matters relating to the objection to his application. He however, declined to seek adjournment to prepare his case. He presented his case orally and was then cross-examined and re-examined. He was represented by Counsel at the hearing of his application. Both he and his Counsel made submissions to the Board before the Board made its decision on his application.

The Board refused to grant a new liquor licence for the Club because of the following reasons:

"1. They have concerns about Mr. Maenu's previous conduct of the Club. The majority of the Board did not believe his submission that the accepted breaches took place because of fear.

The truth of the matter is Mr. Maenu did not shut the club until told to do so;

2. The locality is very close to the main road and the Board has real fears about safety;

3. The locality is very close to residential areas and the Club's operation would disturb residents."

The Appellant made repeated breaches of the Act. There were many incidents of drunkenness at the Club. The Club had stayed open until 6am. That excessive music was played at the Club until 6am. That the Club had continued to be run in this way, until the Appellant was ordered by the Police in late August 2003 to close the Club.

In my view, there is clear evidence to establish that the Appellant had a full and fair hearing before the Board.

The Board Meeting.

The Board meeting was attended by 5 members of the Board including the Acting Chief Magistrate. The quorum for a valid meeting to take place is 4 members including the Chairman or in his absence, the Acting Chairman. There was nothing wrong with the quorum at the Board meeting of 28th November 2003. Consequently, the decision on the Appellant's application is valid. Appellant's Counsel conceded this position in court.

Conclusion.

I find that the decision on the Appellant's application was not made by the Board during its private meeting which took place from 9am to 11.30am. The Appellant was entitled to be heard at the hearing of his application after 11.30am, and not at the Board meeting from 9.00 am to 11.30 am. There was no breach of the rules of natural justice, in particular, the audi alteram partem rule by the Respondent.

The Board's decision on the appellant's application on 28th November 2003 is valid.

I do not see the need to consider grounds to 2, 3 and 4 of the appeal in view of my finding in ground 1.

The orders of the Court:

(1) The appeal is dismissed.

(2) I make no orders as to costs.

F. Mwanesalua
Judge