In the Matter of the Ex-parte application of Poka Biki

• Jurisdiction: Papua New Guinea
• Judge: Doherty J
• Judgment Date: 07 February 1995
• Citation: [1995] PNGLR 336
• Court: National Court
• Year: 1995
• Judgement Number: N1299

National Court: Doherty J

Judgment Delivered: 7 February 1995

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

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

Waigani

Doherty J

2 February 1995

7 February 1995

JUDICIAL REVIEW — Delay in bringing proceedings for judicial reivew — Orders of District Court made in the absence of a party — Liquor Licensing Act (Ch 312) — Constitution — Damages against a magistrate — Section 247 District Courts Act — Right to be heard s 37 (11.

CONSTITUTIONAL LAW — "Forfeiture" a penalty — Right to be heard — Breach of Constitutional right.

Facts

One Gior Kuka pleaded guilty to selling liquor without a licence conrary to s 98 (1) (a) of the Liquor Licensing Act (Ch 312). The District Court ordered forfeiture of the liquor found on the premises and the cancellation of the trading licence. The applicant, the owner of the trading lience, who had not been charged or appeared before the District Court applied for judicial review and for damages for loss of income due to the closure of the business. Giori Kuka had been convicted in October 1993 and the judicial review application was filed in June 1994.

Held

1. The period of 4 months within which to institute proceedings for judicial review is not a mandatory period and undue delay can be a lesser period and can even be longer. In assessing whether or not there has been undue delay, the Court must consider the facts in each case before it.

2. The order was a liability affecting the applicant was contrary to s 37 (11) of the Constitution to make an order affecting the applicant without prior notice having been given to him.

3. 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).

4. Section 98 (3) of the Liquor Licensing Act enabled only the forfeiture of liquor in the possession of a defendant and not liquor belonging to another person who had not een convicted.

5. No award of damages for the closure of the applicant's business could be made without evidence of quantum and in any event damages could not be awarded against the State as the State had not been given notice of the claim for damages.

6. The claim for damages properly lay against the magistrate under s 247 of the District Court Act and that claim would have to be exhausted before judicial review proceedings could be brought.

Cases Cited

Amadis v State

Counsel

Mr Batata, for the applicant.

7 February 1995

DOHERTY J: The applicant applies for judicial review of a decision of the Boroko District Court. Proceedings were filed and served on the 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 s 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 19 October 1993. On 25 October 1993 the Court fined him K500.00, ordered "all exhibit be forfeited to the 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 with that aspect of this case first. The Rules of the National Court, O 16 r 4 (1) provide that if the District Court considers that there has been undue 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 6 June 1994. The 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...