Berry v Blackbull Liquor Hastings Limited

[2013] NZHC 3445

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV 2013-441-360 [2013] NZHC 3445

UNDER  Sale of Liquor Act 1989 (Act)

IN THE MATTER             of an appeal pursuant to s 139 of the Act

BETWEEN  NORMAN BERRY, JACQUELINE HUNT, ROYSTON HUNT and ADRIAN PRITCHARD

Appellants

AND  BLACKBULL LIQUOR HASTINGS LIMITED

Respondent

In Chambers:           At Wellington

(On papers)

Counsel:                  S Smith for Appellants

K F Shaw for Respondent

Judgment:                17 December 2013

JUDGMENT OF THE HON JUSTICE KÓS (Application to adduce additional evidence on appeal)

[1]      This appeal is due to be heard in February 2014.  It is brought from a decision of  the Alcohol  Regulatory  and  Licensing Authority.    The  decision  granted  the respondent an off-licence for premises at 1008 Karamu Road North, Mayfair, Hastings.

[2]      Four errors of law are alleged.   That the Authority failed to have proper regard to the object of the Act in the exercise of its discretion.  That it failed to have proper regard to objectors’ concerns regarding the application.  That it approached its decision  making  as  if  objectors  had  an  onus  to  show  that  the  applicant  was

unsuitable, when it should have placed the onus on the applicant to show that it was

BERRY & ORS v BLACKBULL LIQUOR HASTINGS LIMITED [2013] NZHC 3445 [17 December 2013]

suitable.  And that it wrongly treated the grant of a licence as a form of trial period. The merits of these contentions remain for consideration in February.

[3]      Two questions of law are said to require resolution:

(a)      Should, and if so to what extent, the track record of those behind the applicant be considered when deciding what weight to place on non- binding advertising and promotion regimes proposed by the applicant;

(b)Is the temporary nature of the licence, a result of the transitional provisions of the Sale and Supply of Alcohol Act 2012, a matter that the Authority can properly point to as a form of trial period.

Application to adduce additional evidence on appeal

[4]      Now the respondent has applied for leave to adduce additional evidence on appeal.

[5]      The respondent seeks to adduce an affidavit of Harinder Deep Singh Mann. It was sworn back in May 2013.  The application is brought in reliance on r 20.16 of the High Court Rules.  It is opposed by the appellant.

[6]      The respondent says that the affidavit is “arguably up-dating evidence”.  Its purpose is said to be to address a mistake made by Mr Mann during cross- examination before the Authority.   He was asked whether an agreement with Independent Liquor (which I gather is a supplier or franchisor) required him to dedicate 70 per cent of his floor space to RTD liquor.   He answered yes.   The respondent now says that the answer was wrong.   The affidavit will say that agreements with Independent Liquor simply required that 70 per cent of the RTD liquor displayed in stores come from Independent Liquor.   A different matter altogether.

Principles governing admission of additional evidence on appeal

[7]      The legal principles governing the admission of further evidence on appeals are clear:

(a)      Apart from up-dating evidence concerning matters occurring since the hearing, the power to grant leave to adduce further evidence is sparingly exercised.1

(b)There is no power to admit further evidence on appeals on questions of law only, except where there are “very special reasons”.2

(c)       The evidence must be cogent and likely to be material.

(d)It must normally be shown that the evidence could not reasonably have been discovered at an earlier stage.3   Obviously that qualification does not apply where the evidence is of a purely up-dating nature.

Discussion

[8]      Applying those principles to the facts of this case, it is clear that the proposed affidavit may not be admitted.

[9]      First, this is an appeal on questions of law only.  The Court will take a firm approach to this matter in dealing with the appeal.  One of the supposed justifications for the admission of the additional evidence advanced by the respondent  is the questions posed go well beyond matters of law.  However a conventional approach to the appeal, respecting the limited jurisdiction available to the Court, means two things here.  First, “very special reasons” to admit the evidence is needed.  Secondly,

there is less need for this particular evidence to be adduced.

1      McGechan on Procedure (looseleaf ed, Brookers) at [HR20.16.01].

2      Schier v Removal Review Authority [1999] 1 NZLR 703 (CA); CH & DL Properties Ltd v

Christchurch District Licensing Agency HC Christchurch CIV-2009-409-2909, 30 April 2010.

3      McGechan on Procedure (looseleaf ed, Brookers) at [HR20.16.02].

[10]     Secondly, I do not accept that the evidence is “up-dating evidence”.  Rather, it concerns an error made in the course of evidence. A tribunal hearing evidence will always be conscious that mistakes may be made by witnesses.   If the error is not corrected in re-examination, or corrected in the course of further evidence, it is always open to a party to point in submissions to an obvious evidential error.  In this case the proper course for the respondent to have taken was to have advised the Authority of the error as soon as it became aware that it had been made.  Either in submissions or subsequently, before delivery of the decision.

[11]     Here the hearing took place at Hastings on 10 April 2013.  The affidavit now proposed to be adduced was prepared and sworn in 15 May 2013.  It was intended for  the Authority,  rather  than  this  Court.    But  then  Mr  Mann  learned  that  the Authority had granted his company’s application for another store.   He therefore judged it was likely the application for the Hastings store would also be granted.  So, says counsel, “the respondent withdrew the May affidavit to avoid any further delay and waste of costs”.

[12]     The respondent did not inform the Authority of the error.  The result is that the alleged error now finds itself imprinted on the face of the Authority’s decision. Despite that attitude, the respondent now expects this Court to receive the very evidence it chose not to provide the Authority.

[13]     Rather than being a special reason for receiving the evidence, I regard that as good reason not to do so.

[14]     Finally, nothing in this decision prevents the respondent from seeking to adduce  genuine  up-dating  evidence,  reflecting  a  real  change  in  circumstances between the date of the Authority’s decision and the date of the appeal on 4 February

2014.

Result

[15]     The application to adduce additional evidence is dismissed.

Timetabling

[16]     Counsel have jointly suggested an amended timetable for this substantive appeal, to take into account the delivery of this decision.   They suggest (and I approve):

(a)       Appellants to file submissions 21 January 2014. (b)   Respondent to file submissions 28 January 2014.

Stephen Kós J

Solicitors:

Lawson Robinson, Napier for Appellant

Harkness Henry, Hamilton for Respondent