Decision of a Committee Reviewed.

Te Aroha News, Volume III, Issue 148, 3 April 1886, Page 4

Decision of a Committee Reviewed.

Wellington, March 25. A most important decision was given in the Banco Court yesterday in regard to the action of the Cook (Wellington) Licensing Committee in cancelling a license without giving the licensee an opportunity of showing cause why the license should not be forfeited Argument in the case was heard in banco last week, tho Attorney-General appearing tor the defendant (the Committee), and Mr Gaily for the plaintiffs (Faber and Liddlo), who'applied for a mandamus compelling the Committee to rehear the application for a transfor of the license of the Army and .Navy Hotel from Fabor to Liddle. His Honor, in giving judgment, paid ;—; — " It appears from the statements of claim that tiic plaintiffs made an application for transfer in due course at the lust quarterly meeting of tho Committee. On the heaving of tho application the Committee, on their own motion, took notice of a complaint which had been made against the plaintiff Liddle. On a recent date a drunken man had been served with liquor in the hotol kept by [addle, and they heard the evidence ot a Mrs Kelzy in support of such complaint. Iso notice whatever of any objection to tho grant of the transfer, or of any complaint as to the conduct of the hotel, or of the plaintiff Liddle, as licensee, or as the proposed transferee thereof, had been given to tho plaintiffs or either of them, at any time previously to the said quarterly mectiug The solicitor for tho plaintiff, Faber, applied to tho Committee for an adjournment of the application, in order to enable the plaintiff or other persons affected thereby to answer the said objection or complaint, but tho Chairman of tho Comrnitteo infos mcd him that the Committee had mado up their minds to refuso an adjournment of tho hearing, and also to cancel the license, and then stated that the Committee had unanimou&ly decided to cancel the licence ; and further, that tho Committee did not, at such hearing, assign or make known the objection causing tho refusal of transfer, or the ground on which the liconso wns cancelled. These allegations are fully admitted by tho defendant?, and thereupon it is contended by the plaintiffs that by refusing to grant an a i journment for the purpose of enabling tho plaintifis to reply to the charge against them, as prescribed by section (53, they have, in fact, rofused to hear and determine the application for the tiansfer To this it is replied that tho Committee chose to act under section 70, which enabies them at a quarterly meeting to put an end to any license if it shall be proved to their satisfaction that the licensed house is conducted in an improper manner. This section, it is argued, contains no provision for an adjournment to enable the person affected to make his defence, and may be acted upon by tho committee of their own j motion, without previous notification of the j chaige. To this reasoning there are two distinct and conclusive answers In the first placo there being bofoie tho Committee an application for a transfer, and alleged misconduct of the licensee having been taken notice of by the Committee of their own motion, as a ground for refusing that application, tho case Ml within the provisions of section G'A, and it was not competent of the Committco to treat the application, and the statutory pro\ won relating thereto, as superseded by their own attempted action under section 70 Objection was used as an objection to the transfer, and it was not less an objection because it was or might bo also a ground for cancellation. On reflection it will, 1 am persuaded, appear to the Committoe themselves as shocking to the natural sense of justice that the plaintiffs should be denied the op portunity accorded to them by law of giving a deliberate answer to the charge against them considered as an objection to the transfer— for no other reason than that they were supposed, by some alleged offence, to have also incurred the far heavier penalty of forfeiture. Such reasoning i^ in direct opposition to the spirit of English law, which, at the present day, requires that facility for defence shall no} be diminished, but rather increased in proportion to the gravity of the charge and its consequences. But, furthermore. lam of opinion that the Committee were altogether wrong in supposing that thoy could proceed at once to cancel the license without any previous notification to the parties affected, and without giving them an opportunity of being heard in their defence. It may be true that there is nothing in tho statutes expressly requiring such notification, but theto is nothing to take away tho necessity for it. 'No proposition,' says Baron Parko, delivering the judgment, of the Exchequer Chamber in the case of Bonaher v. Evans, 'can be more clearly established, than that a man cannot incur loss of his liberty or property for an offence by judicial proceeding until he has had fair opportunity of boing heaid before it was issued, unless, indeed, the Legislature has expressly orim plicitly given an authority to act wi'hout that necessary preliminary.' To the same effect, Lord Campbell says, in Bartlett v. Kirkwood, ' There must be an opportunity given to every person, before judgment is parsed upon him, of being heard in his defenco ; and it is essential that the charge should always be intimated to the supposed delinquent. Ifc i 3 unnecessary to multiply citations in support of so well established a doctrine. If ltbe contended that theplaintiffs, being represented by theirsolicitor, had both a sufficient intimation of the charge and a sufficient opportunity of defence, it must be answered that there was neither one nor the other. The solicitor was in attendance for an entirely different purpose, and was not, nor could reasonably be supposed to bo, instructed to defend proceedings against his clients under section 76. As respects proceedings under section 70, the plaintiffs must be regarded a8 absent parties, and the action of the Committee has violated the principle that no man should be condemned unheard. Liddlo's alleged contravention of the Act might be legitimately taken notice of by the Committee of their motion, as an objection to sanctioning the transfer to him of the license, subject, of course, to the right of tho plaintiffs to an adjournment, under section 63 ; but as a ground for the forfeiture of the license, evidence of alleged offence could not be at once brought forward and acted upon without previous warning. Proceedings under section 7G should always be begun by some notice to the parties interested, calling on them to show cause why the license should not be forfeited, accompanied by some intimation of the ground on which it was proposed to proceed It has been set out as a further ground of defence that Faber was incompetent to transfer to Liddle, having previously made a transfer to one Gill, which was sanctioned at the licensing meeting in September, 1885, This objec tion was not raised when tho plaintiffs preferred their application. Had it been co raised, time might have been given to answer it. As it appears that Liddle has been admitted by the Chairman as a tempo rary transferee from the late licensee, the plaintiffs have, prima facie, sufficient title to support the presept claim. Taking the j

Committee on their own ground, and supposing that tho right to license at the date of the last meeting was vested in Gill, the impropriety of the course adopted by them in pretending to cancel the license becomes even more glaringly evident, for the persons interested were, as' they state themselves, in so many words, neither prersent nor represented, and presumably have been in total ignorance or the proceedings. Ac regards the intrinsic efficiency of the alleged grounds of forfeituie, I am not called upon to give a decision, but I think it desirable to say that it appears to me at least doubtful whether the evidence of the commission by a licensee of a single offence against the statuto can be taken by the commit! eo aB in itself sufficient proof that a licensed house is conducted in an improper manner. The argument addressed to me by Mr Gully on this head, founded upon the terms of f-ection 205, appears very worthy of consideration. Section 166 affords a similar one. An offenco against tho Act is not, in general, ycr se, a ground of forfeituie. Under section 76, I inclino to think that something like habitual bad conduct of the house must bo shown The result of tho view which I take of the proceedings is that tho Committee have refused to hear and determine tho plaintiffs' application in tho mode prescribed by the statute, and that a case is made for the issue of a writ requiring the Committee to exercise their jurisdiction. The protended cancellation of tho licence rauet be taken to be a nullity. Tho writ of mandamus can contain no declaration on the subject, but assuming that no order of certificate has yet been issuod to give efiect 1o the decision of tho Committee, my intimation of opinion of this Court will bo, I appiehend, all that is requisite, As regards time for hearing, I take it to be settled by the case of Kegina v Hurbt, that the Couit has no juiisdiction to oidor a meeting of the committee to be held. Afe soon as convenient, the Chairman must convene a .special meeting for the purpose, unless the March quarterly meeting should happen to have been continued to the present time by adjournment. Not loss than sevon days' notico should bo given of the day appointod ♦'or heai ing. Thereshould alfeo bo propor notice- of intended objections. As this judgment is for the direction of a lay tribunal, I wish to mako it fully understood that this Courb gives no opinion whatever respecting Mr Liddle as a t ran=*ferec of the licensee The question, when it again comes before the Committee, can he determined by them upon its merits. For anything that I know, tho conclusion at which they arrived on the foimor occasion may turn out to have been correct in sub stance, as far as tha refusal to sanction a tranefor is concerned, but it is not enough that a judicial body shall arrive at a just conclusion. Every such body is further bound to Take care that its modo ot procedure shall be just, A just thing must bo done in a just way. Unwilling as lam to give copts against persons who are gratuitously dischaiging a difficult and often an invidious, public duty, 1 feel bound in this case to follow the precedent of Kegina v. Hurst. The mandamus will be granted with costs." Aftor a short discussion costs were fixed at £15 15s.