Papua New Guinea Law Reports

These provisions have remained unchanged since 1923 except that in 1934 a further sub-paragraph, not now relevant, was added to paragraph (a) and a paragraph (ea) was added as follows:

“(ea) Prescribing all matters which are necessary or convenient to be prescribed relating to any licence issued under this Ordinance or the regulations; and...”

It will be seen that the addition of par. (ea) in 1934 does not affect the question whether or not a discretion to grant or refuse a licence reposes in the Licensing Officer because its operation is restricted to matters relating to “any licence issued”.

So much for the Ordinance.

Regulations were made under the Ordinance as early as 31st July, 1923, but they referred only to traders’ and pedlars’ licences. We are concerned with regulations made pursuant to s. 7(1)(vii) of the Ordinance, namely regulations requiring that licences be obtained by “persons who keep places of entertainment other than clubs and hotels” and the first regulations made pursuant to this power were made in 1927. Since then substantial amendments have been made to bring them to their present form.

The question before us relates to the powers and duties of the Licensing Officer when he came to consider the prosecutor’s application. The arguments before us ranged over a wide field. It was argued on the one hand that the present case was one in which if the tests propounded by the Lord Chancellor in Julius v. The Lord Bishop of Oxford[xxiv]1 were applied it would be seen that the power to issue the licence was coupled with a duty to exercise that when callecalled upon to do so. This was the conclusion reached by Evatt & McTiernan JJ., in R. v. Mahony; Ex parte Johnson[xxv]2 and by the Judicial Committee in Attorney-General (Canada) v. AttoGeneral (British Columbia)[xxvi]3 on theisionisions there being considered. On the other hand the general considerations which influenced the Full Court of Queensland in Buckle v. Cook; Ex parte Cook[xxvii]4 and R. v. Maroochy Shire Council; Ex parte Gearside5 in dec ding ding that a discretion existed in the circumstances of those cases were advanced in support of the contrary view.

But in the final analysis—and none of the cases to which we were referred suggests the contrary—the question of whether a discretion to grant or not to grant the licence resides in the Licensing Officer must be determined on the proper construction of the relevant statutory provisions. The matters referred to in the cases mentioned are only aids to construction and not independent principles of law which modify the statutory provisions.

In the present case there is no provision in either s. 7 of the Ordinance or in the Regulations which expressly confers on the Licensing Officer a discretion to refuse an application made in proper form. Reg. 3(1) provides that no person shall keep any place of entertainment unless he has a licence and reg. 3(2) provides for a written application in a prescribed form. Regulations 4 and 5 provide for the period of the licence and the fee payable for it. Regulation 6 provides that every licence issued shall be granted subject to a number of conditions which are then set out, the relevant provision here being par. (a) which reads as follows:

“(a) That if, upon inspection or upon obtaining satisfactory evidence, it appears to a Licensing Officer that, owing to:

(i) ; the positiosition, insufficiency, or unsuitableness of a place of entertainment;

(ii) the improher character of the licensee or of any perssorti a plf entnment

(iiA>(iiA)&#16) act fhat that the place of public entertainment is or is likely to be dangeto puhealtsafety fety or coor constitnstitutes or is likely to constitute a fire hazard; or

(iii) anyrothefisufficient cause, it is desirable or expedient to do so, the Ling Of may nd or cancelancel the the licenlicence.”

Further, because of the history of the Regulations to which we will now refer we do not consider that the present Regulations should be so construed as to imply any discretion in the Licensing Officer to refuse a licence. The control which the Regulations now sets up is effected not by refusing licences but by suspending or cancelling them.

In their original form as promulgated in 1927 regs. 1, 2, 3, 4 and 5, were in substantially the same form as now, but reg. 6 was essentially different from the present reg. 6(a) set out above. It provided:

“If, upon inspection or upon obtaining satisfactory evidence, it appears to a Licensing Officer that, owing to:

(a) ; the positiosition, insufficiency or unsuitableness placenterent;

(b)&#1b) < &160; #1600;&#160 the imp cher character of the licensee or of any person resorting to a pof eniertatnmen<; or

(c) #160;&#1600 any other sufficient cause,

it is desirable or expedient to do se Licgnsinicer efuse, use, suspesuspend ornd or cancel the licence, or the application for the licence which has been issued or made under these Regulations.”

Regulation 7 of the original Regulations then provided that every licence issued should be granted subject to conditions which were the same as that now contained in reg. 6(b) and another condition relating to seating accommodation which was amended in 1957 and repealed in 1958. Other amendments made are not relevant to the present enquiry.

It could well be argued in view of the limited terms of s. 7 of the Ordinance that the power to refuse a licence or an application therefor was removed from the Regulations because such a power could not be supported by the section; but whatever the reason for removal it is clear that an express power to refuse a licence on specified grounds which originally appeared in the Regulations has gone, and an express power to suspend or revoke the licence on the same grounds has been retained. Circumstances which under the original Regulations justified a refusal or suspension or cancellation now justify only suspension or cancellation of the licence.

For these reasons the first limb of the prosecutor’s argument succeeds and it becomes unnecessary for us to consider the alternative submissions.

Two further matters relating to the relief claimed require comment. Firstly, it appears that the prosecutor’s application for a licence was made before the theatre which he intended to erect had been built. We do not think this constitutes any bar to the prosecutor’s claim. If a person has not obtained a licence before he commences to “keep” a place of entertainment he would, the moment he commences to do so, commit a breach of reg. 3. If, having obtained a licence he endeavours during the currency of the licence, to keep a place of entertainment without first providing a sufficient and suitable place of entertainment the Licensing Officer may suspend or cancel the licence. There is nothing in the Regulations to prevent an application for a licence being made nor the licence from being granted before the licensee commences to keep the place of entertainment and it is only good sense that this should be so. Secondly, the prosecutor’s application if granted would have resulted in the issue of a licence which would have expired on 30th June last and for this reason it may be suggested that to grant the relief claimed would be futile. We do not think so. The application does not specify the period for which the licence is sought and if dealt with now can be considered as an application for a licence expiring on 30th June next.

The result is that in our view the Licensing Officer is not competent to refuse an application where it is properly made and the appropriate fee paid. Under the Ordinance and Regulations as they now stand his power to control licensees is by suspension or cancellation of licences on the grounds set out in reg. 6.

The proper order in the circumstances is that the respondent deal with the prosecutor’s application according to law.

Order absolute for Writ of Mandamus directed to respondent commanding him to deal with the prosecutor’s application according to law.

Solicitors for the Prosecutor: Cyril P. McCubbery & Co., as agents for: F. N. Warner Shand.
Solicitor for the Respondent: P. J. Clay, Crown Solicitor.
Solicitor for Thomas Bo-Lin Tse: G. R. Rissen.

[xxiv]1 (1880) 5 App. Cas. 214, at p. 223.
[xxv]2 [1931] HCA 36; (1931) 46 C.L.R. 131.
[xxvi]3 [1930] A.C. 111.
[xxvii]4 [1917] Q.S.R. 144; on appeal [1917] HCA 35; (1917) 23 C.L.R. 311.
[xxviii]5 [1926] Q.S.R. 59.