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Returned Service League Hotel Fiji Ltd v Western Division Liquor Licensing Authority [2013] FJHC 154; HBJ05.2012 (4 April 2013)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
[CIVIL JURISDICTION]

Judicial Review Case No. HBJ 05 of 2012

BETWEEN:

RETURNED SERVICE LEAGUE HOTEL FIJI LIMITED
APPLICANT

AND:

WESTERN DIVISION LIQUOR LICENSING AUTHORITY
RESPONDENT

AND:

POLICE OFFICER
PARTY-INTERESTED

Before:

Priyantha Nāwāna J.

Counsel:
Applicant : Mr K. Qoro
Respondent : Mr J Lewaravu

Date of Hearing : 25 March 2013
Date of Judgment : 04 April 2013

JUDGMENT

1. The applicant, by its originating summons dated 06 December 2012, is seeking inter alia a declaration to the effect that the decision dated 04 October 2012 of the respondent to suspend the applicant's Liquor License No 211/2010 was unlawful, void and of no effect; and, moves for an order for writ of certiorari to quash the decision.
   
2. The originating summons was filed pursuant to leave being granted for judicial review under O 53 of the High Court Rules, 1988, of the decision of the 1st respondent on the motion of the applicant dated 15 November 2012. The motion, which was supported by an affidavit from Mr Uraia Sau dated 15 November 2012, was taken-up inter partes on 28 November 2012.
   
3. Facts reveal that the applicant was granted a business licence by the Lautoka City Council to carry on the business of a hotel and a refreshment bar. Under License No 211/2010, the applicant was granted a publican liquor licence by the respondent under Section 30 of the Liquor Act, 2006, for a period of three years from 25 June 2010-24 June 2013.
   
4. The respondent-authority by a writing dated 10 May 2012 [US 5(a)] advised the applicant that a hearing had been scheduled for 11.00 a.m. on 17 May 2012 at the Magistrate's Court No 3 into some 'concerns' that the Police Department had raised in regard to the operation of the applicant-hotel. The letter was served on the applicant only around 12.30 p.m. on 16 May 2012. It was accompanied by a minute dated 09 January 2012 relating to allegations of allowing members of the public in and contravening the opening hours [US 5(b)]; and, a letter dated 02 March 2012 by the Divisional Police Commander/Western addressed to the applicant, which contained allegations of extended hours of business contributing to the rise of crimes [US 5(c)].
   
5. It appears that the respondent relied on the minute and the two letters referred to above without any more documents or witnesses in support of the concerns of the police. The applicant, on the other hand, relied on a letter dated 18 November 2011 of the Divisional Commissioner/Western by which it was clarified that the applicant was holding a publican liquor licence until 24 June 2013 and the bar could be open for 24 hours from Monday-Sunday including public holidays. The clarification from the Divisional Commissioner/Western was based on the notice by the Attorney-General and the Minster for Justice, Public Enterprise, Industry, Tourism, Trade and Communications under Section 86 of the Liquor Act and published in the gazette dated 23 December 2009 [US 6].
   
6. The applicant complains that, when the matter was taken-up on 04 October 2012, the respondent suspended the licence forthwith after hearing submissions only from the interested party without affording an opportunity of being heard to the applicant and directed the party-interested to take steps under Section 59 of the Act.
   
7. Mr Maria Keavali, the Secretary of the respondent-authority, filed a response by way of an affidavit dated 18 March 2013 and admitted the above documents [MK 1-MK 5]. Mr Keavali stated further that the authority made directions on 17 May 2012 that the interested party should comply with directions under Section 59 of the Act by 13 September 2012. The respondent admitted that 'Section 59 process' was activated by the authority by its order dated 04 October 2012 [MK 8].
   
8. The order of the respondent, which is impugned in these proceedings, reads as follows:
   

Order

The liquor licence granted to the RSL on 25th June 2010 is hereby suspended forthwith until further order of this Authority.

The following timetable must now be complied with and strictly followed:

(a) The police as complainant must now take steps and comply with Section 59 (2) and (3) of the Liquor Act and lodge the same within 28 days with the Secretariat of the Authority. The 28 days period shall commence from 4th October 2012.

(b) The Secretariat of the Authority must, within 3 days thereafter, comply with Section 59 (4) (a) of the Liquor Act.

(c) The RSL must within 28 days upon receipt of complaint and particulars thereof from the police under Section 59 (2) and (3) of the Liquor Act, lodge with the Secretariat of the Authority a Response.

(d) The Secretariat of the Authority must, upon receipt of the RSL's Response to the complaint, fix an earliest practicable date for public hearing and inform the parties respectively under Section 59 (4) (b) and (c) of the Liquor Act.

DATED at Lautoka this 4th October 2012

Sgd.

Peni W Dalituicama

RESIDENT MAGISTRATE/CHAIRMAN

WESTERN DIVISION LIQUOR LICENSING AUTHORITY

9. It would be relevant to examine Section 59 of the Act, which makes extensive provisions relating to variation, cancellation and suspension of a liquor licence, in light of the impugned order. The Section states as follows:
   

Variation, suspension or cancellation of licenses

59-(1) Any police officer may at any time apply to an Authority in accordance with this section for an order –

(a) varying or revoking any condition of a licence imposed by the Central Liquor Board or an Authority, or imposing any new condition (relating to any matters specified in section 31 (1), section 36 (4), section 40 (2) or section 55 (2); or
(b) suspending the licence; or

(c) cancelling the licence.

(2) Every application for an order under this section shall –

(a) be made in the prescribed form and manner;

(b) contain the prescribed particulars;

(c) be made to an Authority.

(3) The grounds on which an application for an order under this section may be made are as follows:

(a) that the licensed premises have been conducted in breach of any of the provisions of this Act or of any conditions of the licence or otherwise in an improper manner;

(b) that the conduct of the licensee is such as to show that he or she is not a suitable person to hold the licence;

(c) the licensed premises is being used in a disorderly manner so as to be obnoxious to neighbouring residents or to the public.

(4) The secretary to the Authority shall –

(a) send a copy of the application to the licensee; and

(b) fix the earliest practicable date for a public hearing of the application; and

(c) give at least 10 working days' notice of the date, time and place of the hearing to the applicant and the licensee.

(5) The applicant and the licensee shall be entitled to appear and be heard at the hearing, whether personally or by counsel, and to call, examine and cross-examine witnesses.

(6) If the Authority is satisfied that any of the grounds specified in subsection (3) is established and that it is desirable to make any order under this section, it may, by order –

(a) vary or revoke any condition of the licence imposed by the Central Liquor Board or an Authority; or

(b) impose any new condition relating to any matter specified in section 31(1), section 36(4), section 40(2) or section 55(2); or

(c) suspend the licence for such period not exceeding 6 months as the Authority thinks fit; or

(d) cancel the licence.

(7) Instead of making an order under subsection (6), the Authority may adjourn the application for such a period as it thinks fit to give the licensee an opportunity to remedy any matters that the Authority may require to be remedied within that period.

10. Thus, Section 59 contains a structured mechanism by which the authority was under a statutory duty to vary, modify, suspend or cancel a licence after a due inquiry, whenever a complaint was made by police to that effect under Section 59. What the authority had done in this instance was suspending the licence indefinitely at the very outset; and, thereafter, it gave directions to the police to follow the procedure set-out in the Section. To put it in another way, the respondent first made the order and directed the police to follow the procedure that should have been followed before the order was made. In the circumstances, it requires no any intricate analysis to conclude that the authority was clearly in error by applying the provisions of Section 59 in reverse order. The authority destroyed its own jurisdiction by misapplying the law in Anisminic sense (Anisminic Ltd. v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147) and acted in excess of its jurisdiction. See also O'Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237 at 278.
    
11. Lord Diplock, in Council of Civil Service Unions v Minister for the Civil Services [1985] AC 374 said at 408:
    

Judicial review, now regulated by RSC, Ord. 53 (Corresponding Section to O 53 of the Fiji High Court Rules), provided the means by which Judicial control of administrative action is exercised. The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the 'decision maker' or else a refusal by him to make a decision.

To qualify as a subject for the judicial review the decision must have consequences which affect some person ...

(a) by altering rights or obligations of that person which are enforceable by or against him in private law ...

12. Lord Diplock, at 410, further stated that:
    

Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'.

By 'illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1955] UKHL 3; [1956] AC 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. 'Irrationality' by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.

I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.

(My emphasis)

13. Examination of the order of the respondent clearly shows that it is tainted in every respect of illegality, irrationality and procedural impropriety as expounded by Lord Diplock in his lordship's classic exposition of the law in regard to judicial control of administrative action by court.
    
14. Learned counsel for the respondent contended that the applicant had appealed the decision; and, therefore, the application for judicial review was premature. This contention is fundamentally wrong as it fails to appreciate the distinction between 'appeal' and 'review'. While the former deals with the issue whether the decision was correct, the latter deals with the issue whether the decision was legal. In judicial review, the court is not concerned with the correctness of the decision but with the decision-making process (Chief Constable of the North wales Police v Evans [1982] UKHL 10; [1982] 1 WLR 1155 at 1173). I, accordingly, dismiss the position advanced on behalf of the respondent as being without merit.
    
15. In the circumstances, I grant the declaration that the decision of the respondent dated 04 October 2012 to suspend the applicant's Liquor Licence No 211/2010 was unlawful, void and of no effect, in the exercise of the powers of court for judicial review under O 53. I quash that decision by issuance of a writ of certiorari forthwith.
    
16. It would be apt to add that the Liquor Act was amended by the Liquor (Amendment ) Decree 2011 by substitution of new provisions to Section 5 of the Act, which now reads:
    

(1) There is hereby constituted a Divisional Liquor Licensing Authority in respect of each Division in Fiji, each of which shall consist of

(a) a Chairperson who is appointed by the Minister;
(b) the Divisional Commissioner or his nominee;
(c) the Solicitor-General or his nominee;
(d) 2 other members who are normally resident in the Division who are appointed by the Minister.

(2) Subject to subsection (3), each member shall be appointed for a term of three years (subject to earlier termination by the Minister) and shall be eligible for reappointment."

(3) The Divisional Commissioner or his nominee and the Solicitor-General or his nominee shall continue as members for as long as they hold their respective Offices, provided that the appointments of nominees shall be at the discretion of the Divisional Commissioner and the Solicitor-General respectively.

(4) ...

(5) ...

17. I observe that under the amended Section 5 (1), there is no reference to a Magistrate to be the chairperson or a member of a Divisional Liquor Licensing Authority unless specifically appointed by the Minister, unlike in the earlier Section. I am of the view that if the exclusion of a Magistrate from a Divisional Liquor Licensing Authority was intended by the amending Decree of 2011, it was for the good reasons of keeping the members of the judiciary away from the administrative apparatus of the state. If so, it appears that the respondent had proceeded under the old Section 5 (1), which ceased to be in force from 10 May 2011, resulting in the respondent-authority being badly constituted in law rendering its orders ab initio void. I, however, do not propose to make a finding on the issue as the matter was not raised by parties at the hearing or in their written-submissions.
    
18. The applicant succeeds in his application for judicial review with costs. Orders, accordingly.
    

Priyantha Nāwāna
Judge
High Court
Lautoka
04 April 2013