Canterbury Medical Officer of Health v J & G Vaudrey Limited

[2016] NZHC 73

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000098 [2016] NZHC 73

BETWEEN

CANTERBURY MEDICAL OFFICER

OF HEALTH Appellant

AND

J & G VAUDREY LIMITED First Respondent

BOND MARKETS LIMITED Second Respondent

FOODSTUFFS NORTH ISLAND LIMITED

First Interested Party

GENERAL DISTRIBUTORS LIMITED Second Interested Party

CHRISTCHURCH CITY COUNCIL (LICENSING INSPECTORS)

Third Interested Party

Hearing:

3 February 2016

Appearances:

R J Sussock for Appellant

I J Thain for First and Second Respondents, and First, Second and Third Interested Parties

H McKenzie for Canterbury District Licensing Inspectors

Judgment:

3 February 2016

JUDGMENT OF GENDALL J

[1]      This decision relates to questions of law to be posed on an appeal in this proceeding to the Court of Appeal against the decision of this Court issued on

6 November 2015.

[2]      In a minute I issued in this proceeding on 10 December 2015, leave was granted to appeal the High Court decision to the Court of Appeal.

CANTERBURY MEDICAL OFFICER OF HEALTH v J & G VAUDREY LIMITED [2016] NZHC 73 [3 February 2016]

[3]      As I noted in that 10 December 2015 minute, however, issues arose between counsel for the parties as to how questions of law were to be framed for the appeal.

[4]      Memoranda on this issue were filed by counsel for J & G Vaudrey Limited, Bond Markets Limited and Foodstuffs North Island Limited on 28 January 2016 and on behalf of the Canterbury Medical Officer of Health on 2 February 2016. A further memorandum was filed on behalf of General Distributors Limited on 28 January

2016.

[5]      This issue was then set down for hearing today, 3 February 2016.  At this hearing I heard further submissions from Mr Thain, counsel for J & G Vaudrey Limited, Bond Markets Limited, Foodstuffs North Island Limited (and also on behalf of General Distributors Limited), Ms Sussock for the Canterbury Medical Officer of Health, and Ms McKenzie counsel for Christchurch City Council (Licensing Inspectors).

[6]      Section 168(2) Sale and Supply of Alcohol Act 2012 provides in part:

(2)       …the High Court may grant leave accordingly if in the opinion of that court the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[7]      Noting that jurisdictional basis for an appeal to the Court of Appeal in my minute in this Court dated 10 December 2015 granting leave for the appeal I said at para [4]:

[4]       With these aspects in mind [all parties agreeing that leave should be granted] I am also of the opinion that questions of law involved in this appeal are ones that by reason of their general or public importance ought to be submitted to the Court of Appeal for decision in terms of s 168(2) Sale and Supply of Alcohol Act 2012.

[8]      Thus, it is on that basis the questions of law are to be formed for this appeal.

[9]      That said, and after consideration of the detailed submissions provided in both memoranda from counsel and before me in the hearing of this matter today, I now set out in the attached Schedule what I consider to be a proper formulation of the questions of law for the Court of Appeal here.

...................................................

Gendall J

Solicitors:

Wilson Harle, Auckland

DLA Piper, Auckland

Berry Simons Auckland

SCHEDULE

The questions of law on the appeal to the Court of Appeal in this proceeding are:

1. Whether:

a.   the  District  Licensing  Committee  is  required,  in  accordance  with s 112(1), to approve only a single alcohol area that limits so far as reasonably practicable the exposure of shoppers to display, promotion and advertising of alcohol; or

b.the role of the District Licensing Committee is limited to ensuring that an application for a licence complies with the requirements of s 113(5)?

2. Whether the role of the District Licensing Committee when it considers a plan proposed by the applicant does not comply with the requirements of the Act is:

a.   Binary in the sense that it is limited to accepting or rejecting the plan proposed by the applicant; or

b.Is it able to consider the plan submitted, together with alternative plans and submissions by other parties, and describe an alternative plan which achieves the purpose as stated in s 112(1)?

3.  Whether a District Licensing Committee is able to impose conditions, additional to  the  description  of  the  single  alcohol  area,  which  relate  to  the  manner, configuration or arrangement of display, promotion or advertising of alcohol within the single alcohol area, in order to achieve the purpose as described in s 112(1)?

4.   Whether ARLA or the High Court may refer a matter on appeal back to the

District Licensing Committee or ARLA respectively?