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Evangelical Lutheran Church of Papua New Guinea v Peninsula Hotels Pty Ltd [1977] PNGLR 147 (24 May 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 147 - Evangelical Lutheran Church of New Guinea v Peninsula Hotels Pty Ltd 

[1977] PNGLR 147

N95

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EVANGELICAL LUTHERAN CHURCH OF NEW GUINEA

V

PENINSULA HOTELS PTY LTD

Rabaul

Williams J

23-24 May 1977

LIQUOR - Licensing Commission - Appeal to National Court from grant of publican’s licence - Right of appeal - “Person aggrieved” - Liquor Licensing Act 1963, s. 15.

LIQUOR - Licensing Commission - Appeal to National Court from grant of publican’s licence - Nature of appeal - Procedure on appeal - Procedural directions given pursuant to s. 185[cli]1 of the Constitution.

APPEAL - Liquor Licensing Commission - Appeal to National Court from grant of publican’s licence - Nature of appeal - Procedure on appeal - Procedural directions given pursuant to s. 185[clii]2 of the Constitution.

WORDS AND PHRASES - “Person aggrieved” - Right of appeal - Liquor Licencing Act 1963, s. 15.

On appeal against the grant of a publican’s licence by the Liquor Licensing Commission the appeal being brought pursuant to s. 15 of the Liquor Licensing Act 1963, which confers upon a “person aggrieved” a right of appeal to the National Court, but which makes no provision with respect to the nature of the appeal, there was produced to the Court a file of the Liquor Licensing Commission which contained a copy of the formal order of the Commission and little else of relevance. It was not clear whether the appellant had objected to the grant of the licence before the Commission.

Held

(1)      A “person aggrieved” within the terms of s. 15 of the Liquor Licensing Act 1963, is a person who objected to the application and whose objection was adversely adjudicated upon by the Liquor Licensing Commission.

(2)      Section 15 of the Liquor Licensing Act 1963, read in conjunction with s. 235 of the District Courts Act 1963 (see s. 16(2)[cliii]³ of the Liquor Licensing Act 1963), limits the nature of the appeal thereunder so that evidence other than evidence and proceedings before the Liquor Licensing Commission appealed from, shall not be heard on the hearing of the appeal except by consent of the parties or by order of the Court.

(3)      In view of the unclear and unsatisfactory statutory provisions relating to appeals from the Liquor Licensing Commission, the proper course to have been followed was for directions to have been sought in relation to the conduct of the appeal.

(4)      The proceedings should be dealt with on the basis of an application for directions and ad hoc directions given pursuant to s. 185 of the Constitution.

(5)      Accordingly, the Liquor Licensing Commission should be directed to furnish to the appeal Court all the material which might be in its possession together with a statement of the identity of persons who may have appeared as objectors at the hearing before the Liquor Licensing Commission, and the nature of the objections taken.

Appeal

This was an appeal against the grant of a publican’s licence by the Liquor Licensing Commission, the appeal being brought pursuant to s. 15 of the Liquor Licensing Act 1963.

Counsel

M. W. Wilson, for the appellant.

R. H. B. Wood, for the respondent.

Cur. adv. vult.

24 May 1977

WILLIAMS J: The Liquor Licensing Commission, on 22nd November, 1976, granted to the respondent a publican’s licence in respect of premises known as the Cosmopolitan Hotel at Rabaul.

The appellants appeal to this Court against the grant of the licence on a number of grounds.

Section 15 of the Liquor Licensing Act 1963 confers upon “a person aggrieved” a right of appeal to this Court. The section, however, makes no provision with respect to the nature of the appeal.

There are before this Court no papers other than a file of the Commission produced under subpoena by the local representative of the Commission. This file, which is a general one relating to many matters unconnected with this appeal, contains a copy of the Commission’s formal order but little else of relevance. There is no statement of the reasons of the Commission for granting the licence and no information relating to the course the matter took before the Commission, nor information concerning the identity of those who may have appeared before the Commission to object to the application and the objections put forward.

It is contended for the respondent that there is nothing before the Court to indicate that the appellants are “persons aggrieved” within the meaning of s. 15. It is argued that this term can only embrace those who lodged objections before the Commission pursuant to s. 43 of the Act. In support of this argument reference has been made to several South Australian authorities. It should be noted, however, that the South Australian legislation contains a provision which appears to have no counterpart in the Papua New Guinea Act, namely, a provision that no person shall be heard in support of any objection unless notice in writing of the objection has been delivered stating the nature and grounds of the objection. Section 43(1) of the Papua New Guinea Act requires the giving of written notice of objection to the Commission and the applicant five clear days before the hearing date. However, subsection (2) relaxes this rule by authorizing the Commission to hear an objection made at the hearing although notice of it has not been given in accordance with sub-s. (1). Subsection (3) sets out grounds upon which objection may be made although these grounds would not appear to be exhaustive having regard to the opening words of sub-s. (3) “without limiting in any way the matters which the Commission may take into consideration or the grounds on which an objection may be made.”

However, looking at the scheme of the Papua New Guinea Act it seems plain that a person wishing to oppose an application for a licence must either give written notice of his objection or present himself at the hearing and make his objection and put himself at risk as to costs if his objection is found to be frivolous. I think it emerges clearly enough that, when conferring a right of appeal on “a person aggrieved”, the legislature had in mind a person who objected to the application and whose objection was adversely adjudicated upon by the Commission at the hearing.

There is no evidence before the Court as to whether the present appellants were objectors nor of the ground of any objection made.

The question immediately arises as to the nature of the right of appeal conferred by s. 15. As I understand the submission of the appellants it is that the appeal is one by way of rehearing in the sense that I should now proceed to hear and determine the matter de nova. The contention of the respondent is that the appeal is a limited one confined to a consideration of the material before the Commission. It is said that this material is contained in the file to which I have already adverted and that this material could have been supplemented by a statement of the reasons of the Commission which the appellants could have sought under s. 46 but failed to do.

I am by no means convinced that it was intended by the legislature that the appeal provided for by s. 15 is one by way of a complete rehearing de nova. The Commission is a specialist body designed to deal exclusively with liquor licensing matters and one would expect that the right of appeal is one by way of review of the Commission’s decision. Reference might here be made to s. 16(2) of the Act which provides that subject to the Act, the provisions of the District Courts Act apply, so far as is applicable with the necessary modification to the proceedings of the Commission. Part XI of the District Courts Act contains provisions relating to appeals from decisions of District Courts. There is room for argument whether some of the provisions of Part XI may be inconsistent with the Liquor Licensing Act and that it may not be practicable for some of them to be complied with. However this may be I see no inconsistency between s. 235 of the District Courts Act and the provisions of the Liquor Licensing Act which provides that evidence, other than the evidence and proceedings before the Court appealed from, shall not be heard on the hearing of an appeal except by consent of the parties or by order of the Court. When applying s. 235 this Court has consistently taken the view that the appeal is conducted upon the record of the Court appealed from and further evidence is only allowed by consent or by order made only in special circumstances. In my view s. 15 read in conjunction with s. 235 of the District Courts Act limits the nature of the appeal and the appeal is not one by way of rehearing de nova.

I am urged by counsel for the respondent to view the contents of the file produced to the Court as constituting the whole of the record of the Commission. This may be so but I am left in substantial doubt about the matter. I am loathe indeed to see the rights of the parties, no doubt regarded as very important by them, resolved upon the assumption that the only material within the power of the Commission to furnish for the assistance of this Court is contained in the file referred to. It is said that the maxim omnia rite esse acta praesumuntur should be applied in that it should be presumed the Commission has done all things which it should have done and that it is now for the appellants to demonstrate otherwise. Whilst this is an old maxim applied in some circumstances in highly developed countries I have encountered many instances in this emerging country which would make the adoption of it here unsafe.

The statutory provisions relating to appeals from the Commission are unclear and unsatisfactory, particularly in relation to the material to be furnished to this Court on appeal. It seems rare indeed for an appeal to be brought from a decision of the Commission. Counsel were unable to refer to any previous case where this has occurred and I myself am not aware of any such case.

I think that in the circumstances the proper course to have been followed was for directions to be sought in relation to the conduct of the matter. This is quite commonly done in cases of appeals from other tribunals where the procedural steps are unclear or uncertain. I think it may well be productive of injustice to attempt to determine the rights of the parties in the present highly unsatisfactory state of the matter in which this Court is left completely in the dark as to the course the proceedings took before the Commission. I propose to deal with the matter on the basis of an application for directions. Having regard to the uncertainty and possible inadequacy of the procedures laid down I think that it is open for me to give ad hoc directions pursuant to s. 185 of the Constitution of Papua New Guinea.

I would propose to formulate directions to the general effect of directing the Commission to furnish to the Court all the material which may be in its possession together with a statement of the identity of persons who may have appeared as objectors at the hearing before the Commission and the nature of the objections taken. This information may enable this Court to determine the preliminary objection raised as to the status of the present appellants and the general issues raised in this appeal. Whilst I appreciate that this inevitably will delay the ultimate determination of this matter I see no proper alternative.

It is contended by counsel for the respondent that the alleged failure of the appellants to enter the appeal for hearing pursuant to s. 233 of the District Courts Act is fatal to this appeal. There appears to be an issue as to whether such failure did in fact occur. In any event I do not think that the substantive rights of parties should be determined by considerations of this nature. If necessary I would extend the time for compliance with s. 233.

I reserve liberty to apply on the final form of the order to be made by me.

I order costs of yesterday’s and today’s proceedings be reserved for the Judge determining the application.

I adjourn the hearing of the appeal to the next sittings.

Orders accordingly.

Solicitor for the appellants: F. N. Warner-Shand.

Solicitors for the respondent: McCubbery, Train, Love & Thomas.

[cli]Section 185 of the Constitution provides:

If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.

[clii]Section 185 of the Constitution provides:

If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.

[cliii]Section 16(2) of the Liquor Licensing Act 1963, provides that subject to the Act, the provisions of the District Courts Act 1963, apply so far as is applicable with the necessary modifications, to the proceedings of the Commission.