Bermuda Perfumery v Market Place

• Jurisdiction: Bermuda
• Judgment Date: 21 July 1993
• Docket Number: Civil Appeal No. 6 of 1993
• Date: 21 July 1993
• Court: Court of Appeal (Bermuda)

In the Court of Appeal for Bermuda

da Costa, P. (Ag)

Henry, J. A.

Huggins, J. A.

Civil Appeal No. 6 of 1993

BETWEEN:

The Bermuda Perfumery

Appellant

and

The Market Place

Respondent

Mark Diel and Mark Pettingill for the Appellant

Michael Mello, Q.C. for the Respondent

Steven Harrison, Crown Counsel, amicus curiae

Liquor Licence Act 1974, s. 23(5)(b)

Liquor licence — Enterprise Grocery — Appeal by objectors against decision of Chief Justice to remit matter to Board with directions to grant licence — Objectors not advised of appeal — Legitimate expectation

JUDGMENT

Henry, J. A.: This is the judgment of da Costa, Ag.P. and myself.

For some 20 years prior to May 1991, Burrows Lightbourn Limited, through a series of managers, operated a convenience store known as The Enterprise Grocery on North Shore Road, Bailey's Bay in Hamilton Parish. In May 1991, the business was closed for renovations with the intention of reopening under new management, and the existing liquor licence was surrendered to the Licensing Authority. The business had been purchased from the previous owner, Michael Calleja, but the premises were occupied by virtue of a lease from the owners, the estate of Mr. Calleja. In December 1991, a lease for a further 20 years was negotiated and subsequently the premises were sublet to the Respondent. In May 1992, Burrows Lightbourn Limited applied for ‘renewal of the existing licence’ but when it emerged that the business was to be operated by the Respondent, that application was withdrawn and an application by the Respondent substituted. Objections were filed by several persons including the Appellant, and the Licensing Authority refused the application. The Respondent appealed to the Supreme Court and Ground, J. remitted the matter to the Licensing Authority for rehearing on the basis that the application was one for renewal and transfer rather than a new application. The Authority at the rehearing again refused the application, and the Respondent once more appealed to the Supreme Court where the Chief Justice allowed the appeal and remitted the matter to the Licensing Authority with directions to grant the licence applied for. This is an appeal against the Chief Justice's decision.

The first ground of appeal is that ‘The learned Chief Justice erred in considering an appeal by the Market Place Limited in relation to the refusal of the Liquor Licensing Authority to Grant a licence for the Applicant, namely the Enterprise Grocery Limited.’ In support of this ground, it was submitted that the Appellant and other objectors had received no notice of the filing or hearing of the appeal, had had no opportunity of being heard and that the Chief Justice ought not, in those circumstances, to have heard the appeal.

Counsel for the Respondent conceded that no notice had been served on the objectors, but submitted that it was the practice for objectors who were interested in appearing on appeals to the Supreme Court to check with the Registrar in order to discover whether an appeal had been filed and when it was to be heard. In any event, he submitted that in the present case, Crown Counsel who appeared as amicus curiae, made all the representations that could have been made on behalf of the objectors, who therefore suffered no substantial injustice. We do not consider that these submissions can constitute a satisfactory answer to the complaint of a party who has had an appeal of which he had no prior notice heard and determined against him.

In so far as the law is concerned. Section 23(5)(b) of the Liquor Licence Act, 1974 (‘the Act’) clearly imposes on the chairman of the relevant licensing authority an obligation to send copies of the documents specified in Section 23(5)(a) (which include the notice of appeal) to ‘any person in whose favour the licensing authority have made the decision by which the appellant is aggrieved’ as well as to the appellant and the Attorney General, It is not clear to us why a similar obligation as regards notice of the date fixed for hearing of the appeal is not imposed on the Registrar by Section 23(6)(b) of the Act. We suggest that this apparent inconsistency be dealt with either by legislation or by an appropriate practice note.

In the present case, there was no...