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Monian Ltd v Agon [2017] PGNC 379; N5762 (15 December 2017)

N5762

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 40 OF 2017

BETWEEN:
MONIAN LIMITED
Appellant

AND:
IMELDA AGON in her capacity as Chief Executive Officer of the National Gaming Control Board
First Respondent

AND:
NATIONAL GAMING CONTROL BOARD comprising of: Leslie Hoffman – Chairman, Clemence Kanau – Deputy Chairman, Dr. Ken Ngangan – Board Member, Pastor Charles Lapa – Board Member, Rose Koyama – Board Member, Anna Solomon – Board Member
Second Respondent

Waigani: Nablu, J
2017: 18 August
15 December

APPEALS – Appeal from decision of the National Gaming and Control Board – s.155, Gaming Control Act.

PRACTICE AND PROCEDURE – Appeal from the National Gaming and Control Board, s.155, Gaming Control Act.

Cases cited:

No cases cited.

Counsel:

G. Shepperd and G. Purvey, for the Appellant
V. Hampalekie, for the First and Second Respondents

15^th December, 2017

1. NABLU, J: This is an appeal made pursuant to Section 155 of the Gaming Control Act 2007. The appellant is a licenced gaming operator. The appellant is one of the four (4) licenced gaming machine operators in the country. The National Gaming Control Board is the respondent, whose decision is the subject of this appeal.

2. The National Gaming Control Board on or about February 2017 resolved to become the sole gaming operator in Papua New Guinea. The Board notified the four gaming machine operators of its intention and proceeded on to remove the function of importing and supplying of gaming machines from the other three (3) operators and reduced the term of their licences to a twelve (12) months period upon renewal.

3. The appellant was aggrieved by this decision and appealed to the National Court. The appellant’s main appeal grounds is that the National Gaming Board by taking steps to gain sole operator status has acted contrary to the purpose and intent of the law. The National Gaming Board is established under the Gaming Control Act. The statutory body is limited to the powers that are defined in the law. The purpose of the law is to control all forms of gambling pursuant to the powers provided under the Act. The other grounds are that the decision would have an adverse impact on the gaming industry and create an imbalance in competition and would ultimately result in a monopoly. Such decision is inconsistent and repugnant to the purpose and intent of the Gaming Control Act. The purpose of the National Gaming Board is to administer the said Act and regulate and control the gaming industry. The appellant argued that the decision will have a detrimental effect on their business, therefore, they filed this appeal.

4. The appellant seeks orders that the appeal be allowed and a permanent injunction is imposed on the first and second defendants preventing them from taking steps to obtain sole gaming operation status.
5. The respondents raised the issue of jurisdiction which should be dealt with first. Mrs Hampalekie of counsel for the respondent submitted that the appellant’s appeal is incompetent for three (3) reasons:

1. the appellant did not object or follow the objection process under Division IV and V of the Act first before filing this appeal;
   
2. the appellant should have appealed to the Minister pursuant to Section 148 of the Gaming Control Act first; and
   
3. the appellant should have applied for Judicial Review of the Board’s decision inorder to challenge the decision rather than appeal.
   

6. I am of the view that this issue should be considered first because it relates to the Court’s jurisdiction. If it is determined that the Court has jurisdiction then the Court can proceed on to consider the appeal.

7. The preliminary legal issues are:

1. whether the appellant can appeal to the National Court pursuant to Section 155(1) of the Gaming Control Act; and
   
2. if the answer is “yes” then the next issue for determination is; whether the Board’s decision was made without power?
   

8. It is necessary to set out the provision of the law. Section 155 of the Gaming Control Act states that:

“

1. A person aggrieved by a decision of the Board made under this Division may appeal to the National Court on a question of law.
   
2. On the determination of an appeal under Subsection (1), the National Court may –
   1. reject the appeal; or
   2. remit the matter to the Board for a rehearing; or
   100. make such other order in relation to the appeal as it thinks fit.
        
3. An appeal under Subsection (1) shall be made in accordance with the rules of the National Court. ”
   

9. The respondent submitted that this appeal is incompetent and not properly before the Court because, the appellant did not lodge its objection pursuant to Section 150 of the Gaming Control Act. Therefore, the right to appeal is not applicable.

10. The appellant in response argued that they were not obliged to lodge an objection pursuant to the Act. The appellant was correct in coming to this Court by way of an appeal pursuant to Section 155 of the Gaming Control Act.

11. I am of the view that the process of objection is not applicable to the appellant. The reason is that Section 149 of the Gaming Control Act requires the Registrar to cause a notice of an application for a permit under Section 21, a special permit, a gaming operator’s licence under Section 121 or a gaming machine technician licence to be published in the National Gazette or newspaper. According to Section 150 of the Gaming Control Act, an objection to the granting of an application provided under Section 149(1) of the Gaming Control Act may be made by the Police Commissioner or any other person with leave of the Board.

12. The process of objection is available to the Police Commissioner or other persons. It must be accompanied by the objector’s affidavit. The appellant in the present case is a licenced gaming operator who has already been granted a licence. The process of objection in Section 149-154 is only for persons objecting to the grant of a licence to the applicant.

13. Counsel for the respondent also submitted that the appeal provision captured in Section 155 is only applicable to the objectors. I am of the view, the wording of Section 155 is clear. Section 155(1) of the Gaming Control Act, clearly states that “a person aggrieved by decision of the Board made under this Division may appeal to the National Court on a question of law”.

14. Division 4 is entitled Procedure in respect of applications. That division captures Sections 149 – 155 of the Gaming Control Act.

15. In the evidence before me, it is clear that the appellant is not an objector. Even if it was an objector. There is no evidence that an objection was lodged within the meaning of Section 149 and 151 of the Gaming Control Act. The appellant’s main complaint is that the respondent has decided to gain sole operator’s status. Perhaps, the appellant should have instituted Judicial Review proceedings to challenge the respondent’s decision.

16. I am of the view that Section 155 of the Act does not give the appellant a right to appeal where they have not lodged an objection. I accept the respondent’s submissions that the right to appeal does not arise out of Section 155 of the Gaming Control Act.

17. I am persuaded by the respondent’s submissions that the proper mode of proceedings is judicial review. Section 155 of the Gaming Control Act is not the correct avenue where the appellant is challenging the policy decision of the Board.

18. Therefore, this appeal is incompetent and this Court does not have the jurisdiction to consider the appeal. For the foregoing reasons and in the exercise of my discretion, the appeal is incompetent and dismissed forthwith. The appellant is to pay the respondents costs to be taxed if not aggrieved.

Orders accordingly,

Young and Williams Lawyers: Lawyers for the Appellant
Mordelai Lawyers: Lawyers for the Respondent