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Golden Hill Enterprises Ltd v Lau [2025] PGNC 162; N11296 (16 May 2025)

N11296

PAPUA NEW GUNIEA
[NATIONAL COURT OF JUSTICE]

HR (OS) NO. 03 OF 2024

BETWEEN:
GOLDEN HILL ENTERPRISES LIMITED
Plaintiff

AND:
FRANK LAU – MADANG PROVINCIAL ADMINISTRATOR
First Defendant

MADANG PROVINCIAL GOVERNMENT
Second Defendant

MADANG: NAROKOBI J
10 APRIL, 16 MAY 2025

CIVIL LAW– Declaratory Orders – whether the plaintiff has proven its case on the balance of probability.

Facts
The plaintiff is aggrieved by a purported decision of 14 December 2023 of the first defendant. The decision apparently was made pursuant to a meeting of the provincial executive council resolution, 18/2023, whereby the Madang provincial executive council not only imposed a temporary ban on sale of liquor but also a complete ban on sale of cheap beer. The plaintiff seeks declaration that those decisions are unlawful and consequently it should be entitled to damages for the actions taken to implement the said decisions.

Held:

(1) In a civil case, the plaintiff bears the onus of proving its case, and that burden is discharged on the balance of probability.

(2) The absence of material evidence, being copies of the decisions the subject of the challenge is a failure of the plaintiff to prove its case on the balance of probability and the case is as a result dismissed.

Cases cited
Veronica Mocke trading as AC Unann Bottle Shop v Yama (2019) N7738

Counsel
Mr B Wak for the plaintiff
No appearance for the defendants

JUDGMENT

1. NAROKOBI J: This is a decision on a matter commenced by originating summons, that went to trial by affidavits.
   
2. The plaintiff is seeking a number of orders against the defendants. The plaintiff, Golden Hill Enterprise Limited, as part of its business sells alcohol. The first defendant, Frank Lau is the provincial administrator of Madang province, and the second defendant, is the Madang provincial government.
   
3. The defendants have not shown any interest in the proceedings. They have not entered their appearance nor filed any documents, or affidavit material. I was satisfied that adequate service of all court documents was made on the defendants before I went ahead to hear the plaintiff.
   
4. The plaintiff’s allegation is that it is aggrieved by a purported decision of the first defendant of 14 December 2023. The decision apparently was made pursuant to a meeting of the provincial executive council resolution, 18/2023, whereby the Madang provincial executive council not only imposed a temporary ban on sale of liquor but also a complete ban on sale of cheap beer. That may well have been the decision, but I have read the affidavit material, and it does not have a copy of the decision of 14 December 2023 nor the provincial government’s resolution number 18/2023. All it has is a copy of a memorandum dated 13 December 2023 to the following persons:
   
   • Distributors
   • Hotels
   • Clubs
   • Restaurants
   • Bottle shops
   • Trade Stores &
   • Other Liquor trading outlets in Madang Province.
     
5. The memorandum states that there will be a liquor ban during the Christmas and New Year period, commencing on 21 December 2023, at 4.30pm to Monday 1 January 2023. Important to note too on that memorandum, is that it says nothing about the imposition of a permanent ban on the sale of cheap alcohol and brown SP bottles as the plaintiff allege. The memorandum is signed by “Fank Tonges Lau,” as “Provincial Administrator and Liquor Licensing Commissioner.” I understand that the correct name is “Frank...” and not “Fank...”.
   
6. Veronica Mocke trading as AC Unann Bottle Shop v Yama (2019) N7738, the case that the plaintiff relied on, is relevant to the issues advanced in this case and it held that:
   

(1) The provincial liquor law provided an exclusive code for licensing and regulation of sale and distribution of liquor in the province, including the imposition of liquor bans.

(2) The provincial liquor law conferred exclusive power on the provincial liquor commission to impose liquor bans, in prescribed circumstances. The provincial executive council had no such power. The liquor ban was unlawful.

(3) If it were presumed that the provincial executive council had power to impose a liquor ban of any sort, a ban of the nature and extent actually imposed would still be unlawful as being contrary to the provincial liquor law due to the absence of the prescribed circumstances to warrant imposition of a ban and its indefinite duration.

7. I accept the proposition advanced in that case and apply it here. For the plaintiff to succeed, it must show by evidence that the provincial executive council made the decision to ban the sale of alcohol and not the lawful authority, that is the provincial liquor commission.
   
8. The plaintiff says that the first defendant’s decision of 14 December 2023 to impose a complete ban on sale and consumption of cheap alcohol including sale of SP beer in brown bottle in Madang province with effect from 21 December 2023 is null and void, and of no legal effect.
   
9. The plaintiff is also aggrieved by the actions of the Madang police and the Madang provincial liquor license office who they say unlawfully confiscated from the plaintiff a variety of liquor on 30 December 2023.The plaintiff also claims damages because of the breach. Let me state from the outset that the claim for damages has no merit and is refused. The alleged confiscation of the beer was by the police, and not the present defendants. It would not be right to hold the defendants responsible when they did not carry out these actions.
   
10. It is trite law that the plaintiff bears the burden of proof, and that it must discharge that burden on the balance of probability.
    
11. In my view, the plaintiff has not proven its case on the balance of probability on the evidence that it has tendered. Provincial Administrator, Frank Lau who signed the memorandum dated 13 December 2023, also identified himself as the Liquor Licensing Commissioner. This to me suggests that the provincial liquor commission may have possibly made the decision. I do not know. All I am saying is that the plaintiff has not provided the necessary evidence to support its case, which materially are the first defendant’s decision dated 14 December 2023, and the provincial executive council resolution 18/2023. In the absence of that, I find that the plaintiff has not proven its case on the balance of probability, and the case must fail and is dismissed.
    
12. Because the defendants have not shown any interest in defending this matter, I will order that each party will bear its own costs.
    
13. The formal orders of the court are that:
    
    1. The case is dismissed in its entirety.
    2. Each party will bear their own costs.
    3. Matter is considered determined, and the file is closed.
    4. Time is abridged.
       
14. Judgment and orders accordingly.
    

Lawyers for the plaintiff: Bradley & Co Lawyers