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Liliau v Attorney General [1990] SBHC 110; [1990] SILR 35 (16 March 1990)

[1990] SILR 35

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No.192 of 1989

MICHAEL LILIAU

v

ATTORNEY GENERAL

High Court of Solomon Islands
Ward CJ
Civil Case 192 of 1989

Hearing: 7 March 1990
Judgment: 16 March 1990

Contravention - section 15A, Fisheries Act 1972 and regulations Principal Licensing Officer's entitlement to cancel or suspend licence - standard of proof of contravention of Act - declaratory judgment procedure.

Facts:

The applicant had been in possession of a fish processing establishment licence from the Fisheries Department of the Ministry of Natural Resources. It was subsequently renewed on 7 January, 1988 for that year. It was discovered during 1988 that the applicant had included undersized trochus shells in a consignment for export, in breach of regulation 9 of the Fisheries Regulations 1972. Due to this fact, the Department would not renew the applicant's licence and suspended it indefinitely. The applicant sought declarations from the court as to the grounds on which a fish processing establishment licence might be cancelled or suspended and as to whether the applicant had contravened the relevant legislation or the terms of its licence.

Held:

1. If the Principal Licensing Officer was satisfied that there was a contravention, he was entitled to consider cancellation or suspension of the licence.

An issue of fact was not a suitable matter for a declaration.

Cases referred to:

Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1947J 2 All ER 680 at 682

Legislation referred to:

Fisheries Act 1972, section 9
Fisheries (Amendment) Act 1977, section 15A
Fisheries Regulations, regulation 9 Criminal Procedure Code Cap7, section 205

P. Tegavota for Applicant
P. Afeau for the Respondent

WARD CJ: The applicant seeks answers to two questions relating to the suspension and cancellation of his fish processing establishment licence. His licence was issued for the "cleaning, packing and exporting of Trochus shells, Green lips, Green snails and Blacklips".

On 7th January 1988 the licence was renewed for that year. During the year, it was discovered that the applicant had included a substantial number of undersized trochus shells in a consignment for export in breach of Regulation 9 and the case was reported to the police for prosecution.

When the applicant applied to have his licence renewed for 1989, (the application only reaching the Fisheries Department in April) he was told by a letter dated 16th May the renewal "is to be held up pending the outcome of court proceedings". Those court proceedings never took place because the police, having been given clear and ample evidence to support a prosecution, failed to do anything at all until the whole prosecution was statute barred under section 205 of the Criminal Procedure Code.

Having discovered the result of the police carelessness, the Chief Fisheries Officer "for the Permanent Secretary, Ministry of Natural Resources", wrote in July 1989 saying that, despite the failure of the police to prosecute, it had been decided not to renew his licence and to suspend it indefinitely. In that letter, he clearly stated the reason was the breach of regulation 9 in 1988 bearing in mind an earlier incident of the same type.

The questions the applicant now asks the Court are –

"1. What are the grounds upon which a fish processing establishment Licence may be suspended or cancelled.

2. Is there any contravention of the Fisheries Act 1972, Fisheries Regulations or conditions of the Fish Processing Establishment Licence by the applicant."

The making of a declaration is discretionary and the Court will not answer a question that is too general or is outside any possible cause of action for the applicant.

The first question clearly falls within this category. However, in view of the importance of this matter to the applicant's livelihood, I shall answer the question in a limited way. I shall simply deal with the principles under which a fish processing establishment licence may be suspended or cancelled.

Such licences may be issued by the Principal Licensing Officer under section 9 of the Fisheries Act 1972 "subject to such conditions as may from time to time be prescribed".

By section 9(3),

"any person who operates or causes or allows to be operated any fish processing establishment except under a valid licence granted under this section in respect of that fish processing establishment and in accordance with the conditions of such licence shall be guilty of an offence and liable to a fine of two hundred dollars or to imprisonment for six months, or to both such fine and such imprisonment"

The licence itself bears the words -

"This Licence is granted subject to compliance with the Fisheries Ordinance 1972 and any Regulations made thereunder and the conditions endorsed upon the back hereof."

The conditions on the back reproduce paras (a) to (d) of Regulation 15.

Regulation 9 reads –

"Any person who –

(a) catches and retains or sells or exposes for sale, or buys or exports - .....

(ii) any trochus shell under two and a half inches in diameter as measured across the base; ..... shall be guilty of an offence ....."

Thus it is apparent that the exporting of undersized trochus shells was a breach of Regulation 9.

By section 15A (added by the Fisheries (Amendment) Act 1977) -

"15A (1) Where any condition of any licence or permit is contravened the Principal Licensing Officer may cancel the licence or permit, or suspend such licence or permit for such period as he may thing fit."

That section clearly sets out the position. The Principal Licensing Officer is given a wide discretion to cancel or suspend any licence when any of the conditions are contravened. It was a condition of the licence that there should be compliance with Regulations. By the evidence placed before this Court there was a clear and flagrant contravention and the Principal Licensing Officer was within his rights to cancel the licence.

Mr Liliau in his affidavit has suggested that, as he was not convicted of an offence under regulation 9, the Principal Licensing Officer could not cancel the licence. Whilst a conviction gives a degree of certainty to such cases, it is not essential. A decision not to prosecute a particular case cannot limit the Principal Licensing Officer's discretion under section 15A in relation to that case. If, on the evidence before him, the Principal Licensing Officer is satisfied there is a contravention, he is entitled to consider suspension or cancellation.

Parliament has given the Principal Licensing Officer that power and this Court will only intervene if it is shown that he has acted unlawfully or exercised his discretion outside the principles laid down by Lord Greene MR in Picture Houses v. Wednesbury Corporation [1947] EWCA Civ 1; (1947) 2 AER 680 at 682.

If it is alleged there has been a failure to observe such principles, it is on the applicant to prove them. That has not been done in this case.

If the applicant feels aggrieved he has a right of appeal to the Minister under section 15A (2). It would appear from the letter dated 24th July 1989 exhibited as MLC to the applicant's affidavit as an incomplete document, that the applicant did, in fact, lodge an appeal against the initial suspension of his licence.

If that is so, the Minister should have decided that appeal before a decision was made to cancel the licence. The letter of 31st July may be the result of the appeal and may explain why it was written by the Chief Fisheries Officer "for the Permanent Secretary, Ministry of Natural Resources" because there is no reason why the Ministry should be involved otherwise.

However, I feel that letter is unsatisfactory because it appears to merge more than one process each of which should have been separate. Once the appeal was lodged on 24th July, the Minister should have considered it before any further step was taken. That is a matter for the Minister alone and he must exercise his powers under section 15(2) in accordance with the principles to which I have already referred.

If, having done so, he rejects the appeal, the Principal Licensing Officer is entitled further to consider whether to cancel the licence. That is a matter for the Principal Licensing Officer alone and he also must act in accordance with these principles.

There is nothing in the letter of 31st July to suggest these two distinct stages have taken place neither is it stated that either the Minister or the Principal Licensing Officer has made a decision unless the Chief Fisheries Officer who signed has been appointed a Principal Licensing Officer under section 5 of the Act.

I have already commented on the strength of the grounds for cancellation. On the evidence before the court there were very good grounds for cancellation of this licence but the procedures under the act must be followed.

The second question asks me to decide an issue of fact based on the affidavits. That is not a suitable matter for a declaration and I decline to answer it.