Beldon v Honiara City Council Liquor Licensing Board [2010] SBHC 18; HCSI-CC 16 of 2010 (13 May 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 16 of 2010

BETWEEN:

MARTHA BELDON
Appellant

AND

HONIARA CITY COUNCIL LIQUOR LICENSING BOARD
Respondent

Mr Zama for Appellant
Mr Muria for the Respondent

Date of Hearing: 11th May 2010
Date of Ruling: 13th May 2010

Ruling

1. This case has caused me considerable difficulties. It is an appeal by way of case stated under s.34 of the Liquor Act [Cap 144]. Mrs Beldon, the Appellant, applied for a new club licence under part VI of the Act. Her application was refused. Section 34 allows an applicant who is aggrieved by a decision of a Liquor Licensing Board to appeal. This is her appeal. It is worth pointing out at this stage that s. 34 says an aggrieved person may, if dissatisfied with such decision as being erroneous in point of law, or as being in excess of jurisdiction, apply in writing.....to the licensing authority to state and sign a special case setting forth the facts and the grounds of such decision...". The term "special case" means exactly the same as "case stated". The two terms are interchangeable and are well recognised as being such.
   
2. Apart from s.34 there is a very limited right of appeal from any Liquor Licensing Board. A specific right of appeal is set out in s.56 in regard to appeals against cancellation of licences and I think there must also be a right to seek judicial review. There are no other appeal provisions in the Act.
   
3. Apart from that licensees, applicants, objectors and in fact anyone who relies on the Act must take note of s18(2) of the Act. It says:
   

"Subject to the provisions of this Act, a Board may in its discretion grant an application for a licence or its renewal, removal or transfer, subject to such conditions as it may deem appropriate, or it may refuse any such application, and subject to section 34 a decision of a Board shall be final". (My emphasis.)

4. As already indicated, this appeal is brought under s 34. When the papers first came to my attention I asked the Registrar of the High Court to write to the parties and a letter dated 24th March 2010 was duly dispatched. That letter informed the parties of the procedure prescribed by the Act and by reference to Part IX of the Criminal Procedure Code Act.
   
5. In addition, when the matter came before me on 30th March I specifically asked if the Appellant was proceeding by way of s34, as a case stated, or whether she in fact was seeking for a judicial review of the Honiara City Council Liquor Licensing Board’s decision of 22nd December 2009. The reply was by way of case stated.
   
6. I asked the question because I was concerned at that early stage that the parties had misapprehended the nature of a case stated appeal. It was clear not even the basic facts were agreed. It was also apparent that the issue of whether the Honiara City Council Liquor Licensing Board had been properly appointed or constituted was being raised and, from the papers then before the court, there was no indication the issue had been canvassed in any shape or form at the hearings which dealt with the Appellants application.
   
7. Without trying to labour the point, this is an appeal by way of case stated. It is necessary to look at the nature of such an appeal. A reasonable starting point would be to look at a definition, for example the one found in Black’s Law Dictionary[1]. A case stated is described as a formal written statement of the facts in a case jointly submitted so that a decision maybe rendered without trial.
   
8. Butterworths Australian Legal Dictionary depicts a stated case as, "A means of bringing a matter up for consideration on appeal......A stated case should set out the facts found by the magistrate or lower court, the grounds for the determination and the basis upon which it is said that the determination is in error".
   
9. Another helpful description is found in Halsbury's Laws[2]. " The special case should contain all the points which it is desired to raise, since the High Court will not hear argument on any point not raised (before the justices), unless indeed, it arises upon the face of the facts as stated, or upon a question of law thereon which no evidence would alter, nor will it admit doubts as to the accuracy of the case, unless there is a patent defect in it
   

The usual practice is for the case to be drafted by the party applying for it, and after it has been considered by the respondent, for its terms to be finally settled by the justices by whom the case was heard."

10. Archbold[3] can also help understand the nature of the appeal. Archbold is a criminal procedure guide and here we are dealing with a civil appeal by way of case stated. As Archbold makes clear a civil appeal is governed by the Rules of the Supreme Court (it used to be Rule 56). We have our own Civil Procedure Rules and reference to them can be helpful. I say helpful because as the Liquor Act makes clear, although this is a civil appeal it somewhat unusually, ".....shall be heard and disposed of, mutatis mutandis, as though it were an appeal by case stated under Part IX of the Criminal Procedure Code Act."
    
11. The starting point therefore is s.298 (1) of the Criminal Procedure Code Act (CPC) which is read mutatis mutandis with Rule 16.75 of the Civil Procedure Rules (CPR). Other examples are, Rule 16.76 is read with s. 298 (1) and s.298(2). Sections 299 and 300 are also read with Rules 17.76 and 16.79. Section 307 of the Criminal Procedure Code Act sets out in a little more detail what is required by Rule 16.75 of our. Section 307 should be read mutatis mutandis with Rule 16.75. I shall not go through the CPC and the CPR item by item, the court is entitled to assume that counsel is aware of what they both say and what they both entail.
    
12. I did allow the Respondent the opportunity to file sworn statements prior to the hearing on 11th May. I did so in the hope that the new sworn statement would resolve any conflicts in the case stated which were then apparent. That did not happen. I should also mention the sworn statement of Mr Zama which has been filed. It has been said on many occasions and in many cases before this court that Counsel appearing for a party should not give evidence for that party. There is no objection to giving basic administrative evidence, i.e. "I handed a copy of the papers to Mr Bloggs" but detailed evidence from Counsel appearing in the case is not acceptable.
    
13. In all the circumstances I am unable to give an opinion by way of case stated on the papers presently before the court. That case needs to be amended. In accordance with section 304 (a) of the CPC and Rule 16.81 of the CPR I send the case back to the parties for amendment.
    
14. I did say that I would inform counsel when I was ready to give a judgment in this case but give what I have said I see no point. This ruling will be sent to counsel for the parties.
    
15. I will adjourn the case to Monday June 14th at 2 PM for a further directions appointment. This should allow the parties sufficient time to agree a case stated in sufficient detail to enable the court to give judgment. The court will be able to review the case on that day and set a new hearing date for the appeal.
    

Chetwynd J

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^[1] Eight edition
^[2] Second edition Vol 21 at page 727
^[3] 2008 Edition