Capital Liquor Limited v Police

[2019] NZHC 2817

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-018

[2019] NZHC 2817

UNDER

Sale and Supply of Alcohol Act 2012

IN THE MATTER OF

an appeal under s 162 of the Act against a decision of the Alcohol Regulatory and

Licensing Authority

BETWEEN

CAPITAL LIQUOR LIMITED

Appellant

AND

THE NEW ZEALAND POLICE

First Respondent

THE MEDICAL OFFICER OF HEALTH

Second Respondent

Hearing:

On the Papers

Counsel:

N M Pender for Appellant

D R La Hood for First Respondent G H Allan for Second Respondent

Judgment:

31 October 2019

JUDGMENT OF CLARK J (COSTS)

[1]    This is a costs application arising from an appeal by Capital Liquor against a decision of the Alcohol Regulatory and Licensing Authority (the Authority) upholding a decision of the Wellington District Licensing Committee (the Committee) to renew Capital Liquor’s licence under the Sale and Supply of Alcohol Act 2012 (the Act) subject to a condition that it could not trade beyond 6 pm.

CAPITAL LIQUOR LIMITED v THE NEW ZEALAND POLICE [2019] NZHC 2817 [31 October 2019]

[2]    On 14 March 2019, I refused an application to stay the Authority’s decision pending the hearing of Capital Liquor’s substantive appeal.1

[3]    I dismissed Capital Liquor’s appeal on 26 June 2019,2 with reasons following on 31 July 2019.3 At the conclusion of my reasons decision, I said:

[88] Costs following  the event, the respondents are entitled to costs.  If  costs are unable to be agreed between the parties they may file memoranda addressing also costs on the stay application. The respondents should file any memoranda within 14 days working days from the date of this decision. The appellant may file its memorandum in response within a further 14 days working days. If the respondents seek to reply, any memoranda should be filed within five working days of filing and service of the appellant’s memorandum. Memoranda are not to exceed six pages in length.

[4]    The parties were unable to agree costs. On 14 August 2019, the respondents filed a joint memorandum as to costs. New Zealand Police seeks $16,725 in costs and

$347.55 in disbursements.    The Medical Office of Health seeks $8,920 in costs. Capital Liquor filed a memorandum in reply on 27 August 2019.

[5]    There were three respondents to the appeal: New Zealand Police, the Medical Officer of Health and the Licensing Inspector. The Licensing Inspector was not represented on appeal to this Court. New Zealand Police and the Medical Officer of Health were separately represented before me. Each seeks their separate costs against Capital Liquor for the conduct of the appeal and the stay application, although counsel for the Medical Officer of Health accepts that its costs should be awarded on a reduced basis to account for duplication.

[6]    All parties agree 2B scale costs are appropriate. The central disagreement between the parties concerns the application, in the circumstance of this case, of       r 14.15 of the High Court Rules 2016, which provides:

14.15 Defendants defending separately

(1)The court must not allow more than 1 set of costs, unless it appears to the court that there is good reason to do so, if—

(a)several defendants defended a proceeding separately; and

1      Capital Liquor Ltd v New Zealand Police [2019] NZHC 451.

2      Capital Liquor Ltd v New Zealand Police [2019] NZHC 1468.

3      Capital Liquor Ltd v New Zealand Police [2019] NZHC 1846.

(b)it appears to the court that all or some of them could have joined in their defence.

[7]    As Priestly J explained in Norfolk Trustee Co Ltd v Tattersfield Securities Ltd, underlying r 14.15 is:4

… a policy requiring courts to exercise some caution before awarding costs, without more, in favour of multiple parties, particularly when there is some overlap or community of interest in the litigation position of those parties.

[8]    Capital Liquor’s position is that the respondents ought to have joined in their defence of the appeal. The respondents on the other hand argue they have different spheres of responsibility and it was necessary for both the first and second respondents to have separate representation. They submit this was done reasonably, including the preparation of joint submissions. Any overlap is accounted for in the reduced costs award sought by the Medical Officer of Health.

[9]    The Medical Officer of Health and New Zealand Police are both required to inquire into licence applications and report to the licencing committee pursuant to   ss 103 and 129 of the Act. Each has a distinct statutory function. The Medical Officer of Health is a medical practitioner experienced in public health,5 whose concerns are with the health-related harms of alcohol. The New Zealand Police on the other hand are primarily concerned with alcohol-related crime, breaches of liquor bans, controlled purchase operations and other matters of amenity and good order.

[10]   I agree the respondents had different interests in opposing Capital Liquor’s licence application. As Ms Pender for Capital Liquor submitted, however, the respondents’ positions converged to a significant degree on appeal to this Court, which concerned primarily matters of law. That convergence was exemplified by the joint written submissions that were responsibly filed by the respondents.

[11]   Ms Pender submitted Capital Liquor should not be required to pay the costs of multiple state agencies involved in her client’s appeal when the submissions for both agencies were substantially the same. The respective positions of the New Zealand

4      Norfolk Trustee Co Ltd v Tattersfield Securities Ltd HC Auckland CIV-2004-404-3668, 30 March 2005 at [51].

5      See Health Act 1956, s 7A(2).

Police and the Medical Officer of Health were reflected in a joint written submission that was legally and factually comprehensive. It must be acknowledged though that, notwithstanding their separate spheres of responsibility, the degree to which their interests overlap was reflected in the fact a seamless joint submission was able to be filed. Had either one of the respondents filed a full set of written submissions, I consider it highly likely that a second set of written submissions, were one to be filed, would have been very slender.

[12]   In terms of costs in relation to preparation of written submissions a fair assessment is that each respondent is entitled to half the standard 2B costs for preparation of written submissions for both the stay application and appeal. Recognising the reality of their overlapping interests, the respondents have quite properly agreed as between them that only one respondent is entitled to an award of full scale costs. The Police have claimed full costs and the Medical Officer of Health seeks reduced costs. In fact, the Medical Officer of Health seeks only the costs of two sets of written submissions and appearances at the hearing of the defended stay application and the hearing of the appeal. I consider it appropriate that each defendant is awarded the costs of appearing. At both hearings, while Mr La Hood took the lead, Mr Allan made separate and helpful submissions in relation to matters not covered by Mr La Hood. In particular, Mr Allan addressed particular points arising out of his written submissions to the Authority before whom Mr Allan appeared.

[13]   I consider the approach I have taken to the award of costs is a fair and realistic way of recognising the necessary involvement of both respondents in the proceeding balanced against the need for fairness to Capital Liquor.

[14]   The consequence of my assessment is that, in respect of the preparation of written submissions for the stay application the costs entitlement of $3,345 is awarded and is to be shared as between the respondents. Likewise, the $6,690 costs entitlement for preparation of written submissions for the substantive appeal is to be shared. This has the effect of reducing by $5017.50 the costs sought by the first respondent and reducing by $557.50, the costs sought by the second respondent.

Result

[15]   Capital Liquor is to pay to New Zealand Police costs in the sum of $11,707.50 and disbursements of $347.55, and to the Medical Officer of Health costs in the sum of $8,362.50.

Karen Clark J

Solicitors:

Franks Ogilvie, Wellington for Appellant
Luke Cunningham Clere, Wellington for First Respondent