BETWEEN TROPICALIA ENTERPRISES LIMITED Applicant
[2023] NZHC 3538
•6 December 2023
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2023-470-177
[2023] NZHC 3538
UNDER Section 12 of the Senior Courts Act 2016 and Part 19 of the High Court Rules 2016 BETWEEN
TROPICALIA ENTERPRISES LIMITED
Applicant
Hearing: On the papers Counsel:
S J Rawcliffe for the Applicant
Judgment:
6 December 2023
JUDGMENT OF HARVEY J
This judgment was delivered by me on 6 December 2023 at 1.30 pm pursuant to r 11.5 of the High Court Rules.
Date: …………………..
(Deputy) Registrar
Solicitors:
Harkness Henry, Hamilton
Re TROPICALIA ENTERPRISES LIMITED [2023] NZHC 3538 [6 December 2023]
Introduction
[1] Tropicalia Enterprises Limited applies to this Court for a stay of a decision of the Tauranga District Licensing Committee (TDLC) dated 15 November 2023 until the applicant’s appeal is determined by the Alcohol and Regulatory Licensing Authority (ARLA).
[2] In the alternative, the applicant seeks an interim order that the TDLC decision be stayed until ARLA releases its decision as to why an application for a stay was declined. Following which, this application can be called within ten working days in the Civil Callover list to enable submissions on any further orders that may be required.
[3] The application is made under the Court’s inherent jurisdiction and with reference to s 153(3) of the Sale and Supply of Alcohol Act 2012. The applicant seeks these orders by way of originating application on a without notice basis. In counsel’s submission, urgency is sought given the effect of the committee’s decision on the applicant’s business and staff.
Submissions
[4] Ms Rawcliffe submitted that it is appropriate for this matter to be commenced as an originating application and it is anticipated there will be no opposition by the parties affected by the TDLC decision. There was no opposition to the application made to the ARLA for a stay of the TDLC decision. Counsel underscored that timing is critical since the applicant’s alcohol licence has expired and its premises remain closed. Any further delay will mean the business would have to be wound up and staff made redundant. Moreover, counsel argued that any appeal will be rendered nugatory if the stay application is declined.
[5] Ms Rawcliffe reiterated that there is unlikely to be opposition to the stay since affected parties namely the Licensing Inspector, the Police, the Medical Officer of Health and two neighbours did not object to the application for a stay in the ARLA. Even so, counsel confirmed that ARLA refused to make an order with the result that the premises remain closed. Unless and until the business reopens and trades
profitably including with the sale of alcohol, it will be forced to close and make its staff redundant, as mentioned. Added to that, counsel confirmed that the ARLA has not released its reasons for its decision with the result the applicant cannot appeal that determination.
[6] In any event, Ms Rawcliffe argued that the TDLC decision should not have effect while the appeal is pending because it is bona fide and has merit and was filed promptly and in time. She submitted there is no risk of alcohol related harm from the premises until the determination of the appeal. It is also unlikely that the appeal will be heard in the next six months. The consequence of that, as foreshadowed, will be that the appeal rights of the applicant are rendered nugatory
[7]An affidavit in support from Fernando Rosa was filed.
Legal principles
[8] An application can proceed without notice if the Judge is satisfied that requiring the applicant to proceed on notice would cause undue delay or prejudice to the applicant; or the application affects only the applicant; or the application relates to a routine matter; or an enactment expressly permits the application to be made without serving notice of the application; or the interests of justice require the application to be determined without serving notice of the application.1
[9] In addition, if the Judge determines that the application can properly be dealt with without notice, the Judge may make the order sought in the application; or make any other order that the Judge thinks just in the circumstances; or dismiss the application.
[10] Section 153(3) of the Sale and Supply of Alcohol Act 2012 does not apply because the extant appeal is to the ARLA. However, this Court has inherent jurisdiction to stay decisions of a lower court or tribunal.2 It will do so only sparingly and when there is an identified need.3
1 High Court Rules 2016, r 7.46.
2 Shafik v Makary [2015] NZHC 2194, [2015] NZAR 1596.
3 At [32].
[11] Nonetheless s 153(3) provides relevant context for the exercise of this Court’s inherent jurisdiction. It is a discretion of a “wide-ranging nature”.4 It is appropriate for the Court to grant a stay of enforcement where the appeal is bona fide, there are no other complaints about the operation of the venue, there would be financial implications and to decline the stay would render the appeal redundant.5
Discussion
[12] The applicant argues that a stay is required on several grounds. They are set out above and I need not repeat them here. The short point is that the applicant’s appeal rights will be worthless if a stay is not granted. The same is so if the application was required to proceed on notice. It is also particularly relevant that the other parties did not oppose a stay in the ARLA.
[13] For all of the reasons submitted by counsel, I agree that in orthodox circumstances, a stay is justified, pending the hearing of the appeal in due course.
Decision
[14] The decision of the Tauranga District Licensing Committee dated 15 November 2023 is stayed with immediate effect and will run until the determination of the appeal of this decision is made by the Alcohol and Regulatory Licensing Authority.
Harvey J
4 Cats Niteclub (1991) Ltd v Police [1996] 3 NZLR 581.
5 At 584.
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