Foodstuffs North Island Limited v Alcohol Regulatory and Licensing Authority

[2018] NZHC 1148

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002785

[2018] NZHC 1148

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER OF

an application for judicial review of the

exercise of a statutory power of decision by the Alcohol Regulatory and

Licensing Authority in relation to appeals pursuant to section 81 of the Sale and  Supply of Alcohol Act 2012 against elements of the Provisional Local Alcohol Policy publicly notified by the Auckland Council

BETWEEN

FOODSTUFFS NORTH ISLAND LIMITED

Applicant

AND

THE ALCOHOL REGULATORY AND LICENSING AUTHORITY

First Respondent

AUCKLAND COUNCIL
Second Respondent

further proceedings continued over

Hearing:

18 May 2018

Counsel:

I J Thain for Foodstuffs North Island Limited

A W Braggins for Progressive Enterprises Limited R J Hooker for Redwood Corporation Limited

P M S McNamara for the Second Respondent in all proceedings

Judgment:

22 May 2018

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 22 May 2018 at 1.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

FOODSTUFFS NORTH ISLAND LTD v THE ALCOHOL REGULATORY AND LICENSING AUTHORITY [2018] NZHC 1148 [22 May 2018]

CIV-2017-404-002760

UNDER  the Judicial Review Procedure Act 2016 IN THE MATTER OF  an application for judicial review of the

exercise of a statutory power under section 81 of the Sale and Supply of Alcohol Act 2012 (“the Act”) by the Alcohol Licensing and Regulatory Authority (“Authority”) in relation appeals against the Auckland District Council’s Provisional Local

Alcohol Policy (“PLAP”) under the Act

BETWEENPROGRESSIVE ENTERPRISES LIMITED

Applicant

ANDTHE ALCOHOL REGULATORY AND LICENSING AUTHORITY

First Respondent

AUCKLAND COUNCIL
Second Respondent

CIV-2017-404-002538

UNDER  the Judicial Review Procedure Act 2016 IN THE MATTER OF  a decision of the Alcohol Regulatory and

Licensing Authority under the Sale and Supply of Alcohol Act 2012

BETWEENREDWOOD CORPORATION LIMITED

Applicant

ANDALCOHOL REGULATORY AND LICENSING AUTHORITY

First Respondent

AUCKLAND COUNCIL
Second Respondent

Introduction

[1]    The applicants’ judicial review proceedings are currently set down for a seven- day hearing in April 2019. All parties, except Redwood Corp Ltd (Redwood), seek the allocation of a priority fixture to have the proceedings heard and determined earlier than April 2019.

What are the judicial review proceedings about?

[2]    Auckland Council has introduced a Provisional Local Alcohol Policy. The events leading up to the notification of that Policy, and the statutory provisions which govern the Policy, are set out in my judgment dated 8 May 2018.1 That judgment concerns an application for an interim stay which would have prevented the Policy from coming into force before the judicial review applications were determined. I declined to grant the stay.

[3]    The Policy sets out the Council’s policies relating to the sale of alcohol across the Auckland region. Once it is in force, it will be relevant to decisions made regarding the grant and renewal of licences for the sale of alcohol, and the conditions imposed on those licences. It will also regulate the maximum trading hours in which alcohol can be sold.

[4]    The applicants in the judicial review proceedings challenged certain elements of the Policy before the Alcohol Regulatory and Licensing Authority. The Authority allowed some of those appeals, and dismissed others. The applicants now seek judicial review of the Authority’s decision to dismiss their appeals. That decision concerns various elements of the Policy including: the maximum trading hours for the sale of alcohol; the use of Local Impact Reports; the controls which should apply in areas defined in the Policy; and the nature of conditions which the Council considers should be imposed in certain circumstances.

[5]    In very broad terms, the applicants for judicial review say the Authority’s decision was wrong because some of the elements are not policies at all, and others

1      Foodstuffs North Island Ltd v Alcohol Regulatory and Licensing Authority [2018] NZHC 988 [4]– [10].

are unreasonable in light of the object of the Sale and Supply of Alcohol Act 2012. The object of that Act is that the “sale, supply, and consumption of alcohol should be undertaken safely and responsibly” and “the harm caused by the excessive or inappropriate consumption of alcohol should be minimised”.2 Redwood’s judicial review application also raises issues with the evidence considered by the Authority in making its decision.

[6]    If the judicial review proceedings are successful, then the Court might require the Authority to rehear the appeals against those elements of the Policy. If the Authority considered, contrary to its initial decision, that the challenged elements were unreasonable in light of the object of the Act, then it would have to ask the Council to reconsider those elements.3 The Council could either delete or amend the clause, appeal to the High Court against the Authority’s finding, or abandon the policy altogether.4 Any amended clause would be subject to a further appeal process.5 The Council will be unable to adopt the Policy until all the appeals are resolved.6 In short, if the judicial review proceedings are successful, the delays in obtaining a High Court hearing will cause corresponding delays in implementing the Policy.

Should a priority fixture be granted?

[7]    Priority fixtures are not routinely granted. Particular hardship or exceptional circumstances must be shown to justify one litigant jumping the queue in having their case heard. Priority might be warranted where there are health problems, financial hardship, compassionate grounds, or the interests of children at stake. The public interest is also a ground upon which priority may be granted.7 In this case, the applicants for priority rely on the public interest ground.

2      Section 4(1).

3      Section 83(2).

4      Section 84(1).

5      Section 86(1).

6      Section 87.

7      See Alison Trust Holdings Ltd v NZVIF Investments Ltd [2016] NZHC 2715 at [8], citing the examples given in Shattock v Devlin (1988) 1 PRNZ 271 (HC) at 278. See also Taylor v Attorney- General [2014] NZHC 1795 at [15], citing Birnie Capital Property Partnership Ltd v Birnie HC Auckland CIV-2010-404-3000, 20 July 2010 at [60].

[8]    Redwood submits that there is no real urgency in determining the judicial review proceedings. It says that this is demonstrated by the delay in getting the Policy to this point. The Council’s decision to introduce a local alcohol policy was confirmed in January 2013. It then embarked on a research and consultation process, before giving notice of the Policy in May 2015. However, there is no evidence that the Council dragged its heels in that process. There is also no suggestion that the Council’s position in relation to the appeal proceedings, or reconsideration of certain clauses, caused unnecessary delay. The time it has taken to get the Policy to this point is not a factor weighing against the grant of a priority fixture.

[9]    Next, Redwood submits that the Sale and Supply of Alcohol Act 2012 provides adequate measures and controls for ensuring that the objects of the Act are met whether a local alcohol policy is in place or not. Accordingly, Redwood says, there is no imperative to resolve litigation concerning the Policy urgently.

[10]   But, evidence filed on behalf of the Council for the interim relief application contradicts that submission. Affidavits were filed by the Auckland Medical Officer of Health, the Area Commander for the Auckland Central area, and other public interest groups. The gist of that evidence is that any delay in implementing the Policy which might be occasioned by resolution of the judicial review proceedings will be detrimental to public health and will allow alcohol-related crime and other harmful effects to continue in the interim.

[11]   As I observed in my judgment declining to grant interim relief, these affidavits raise issues which bear on whether the measures in the Policy will reduce alcohol- related harm. That is not an issue I am able to determine. But, for the purposes of the priority application, these affidavits reveal that there is widespread community concern about the ongoing effects of alcohol-related harm should implementation of the Policy be further delayed.

[12]   In the absence of a stay there is no legal restraint on the Council from implementing the Policy before determination of the judicial review proceedings. That means that delay in resolving the judicial review proceedings might not lead to a delay in implementing the Policy. However, Mr McNamara submits that the Council

would shoulder some risk, and could attract some criticism, if it implemented the Policy prior to the determination of the judicial review proceedings. I infer from that submission that, in practice, the Policy is unlikely to be implemented until the judicial review proceedings have been resolved. Accordingly, delay in resolving the proceedings will result in delay in implementing the Policy.

[13]   Beyond the expressions of concern about alcohol-related harm, the Policy, and therefore the judicial review proceedings, will affect more than just the parties to the proceedings. It will affect licensees, customers, and decision-making authorities across the Auckland region. The wide-spread impact of the litigation on members of the public distinguishes this case from those in which purely private interests are at stake. This is another factor which weighs in favour of priority in this case.

[14]   Overall, I am satisfied that the grant of a priority fixture is in the public interest in this case.

Result

[15]   The application for a priority fixture is granted. I direct that the judicial review proceedings be set down for a five-day priority fixture on the first available date after 1 October 2018.

Edwards J

Solicitors:    DLA Piper New Zealand, Auckland Berry Simons, Auckland

Vallant Hooker and Partners, Auckland Simpson Grierson, Auckland

Copies To: Crown Law, Wellington

Luke Cunningham Clere, Wellington