N1299

PAPUA NEW GUINEA
[National Court of Justice]

OS 192 of 1994

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

WAIGANI: DOHERTY, J.
2 & 7 FEBRUARY 1995

Constitutional right to be heard - S.37(11) Constitution - Orders of District Court in absence party quashed - District Court Act S.247.

The applicant sought judicial review of decisions of the District Court which ordered forfeiture of liquor and closure of the business of the applicant when hearing a charge against another person.

Held: 

(1) 	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.

(2) 	The order was a liability affecting the applicant and it was contrary to the provisions of S.37(11) Constitution to make such an order without notice to him.

(3) 	S.98(3) Liquor Licensing Act enabled forfeiture of the liquor in possession of a defendant only and not another person's liquor if he was not convicted.

(4) 	There could be no award of damages without evidence of quantum.

(5) 	Damages could not be against the State as the State was not given due notice and the District Court Act provided for such claims and must be complied with.

Mr Batata, for the Applicant

The applicant applies for judicial review of a decision of the Boroko District Court. Proceedings were filed and served on 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 Section 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 the 19 October 1993. On 25 October 1993 the Court fined him K500.00, ordered "all exhibit be forfeited to 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 that aspect of this case first. The Rules of the National Court, Order 16 Rule 4(1) provide that if the District Court considers there has been endue 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 the 6 June 1994. In 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 Order 16 Rule 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 is 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 circumstances of the case, I do not feel there has been undue delay on the part of the applicant in the circumstances I do not dismiss this application on those grounds.

I now move to the facts of the case:

Order for closure of the Tuckershop Stuff

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 section 98(3) where a person is found guilty contrary to section 98 "all liquor in his possession, together with the vessels containing the liquor, is forfeited to the State". Hence the powers of the Court are 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 Section 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 Section 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 the Trading Act Ch 324.

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 that 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 Section 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 this circumstances, I quash Order 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. S.98(3) (of the Liquor Licensing Act provides 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 was "admit 40 cartons of beer as exhibits". There been no distinction made 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, that 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. 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 Rule 7 provides that in an application for judicial review Court may award damages if -

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

(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 K2000.00, 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 claim to be assessed against it. 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 is 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 contained in 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 Section 247 of the District Court Act provide:

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 with because -

(1) 	It has no quantum before it.

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

(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.

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Lawyer for the Applicant: MICHAEL CHOLAI