Foodstuffs North Island Limited v Auckland Council
[2019] NZHC 1697
•19 July 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-1901
CIV-2018-404-2060 [2019] NZHC 1697
UNDER the Sale and Supply of Alcohol Act 2012 (Act) IN THE MATTER
of an appeal under Subpart 5 of Part 2 of the Act against a decision of the Alcohol
Regulatory and Licensing Authority in
relation to the resubmission of a provisional local alcohol policy
BETWEEN
FOODSTUFFS NORTH ISLAND LIMITED
Appellant
AND
AUCKLAND COUNCIL
Respondent
Hearing: 5 March 2019; further materials 11 April 2019 Counsel:
IJ Thain and IE Scorgie for appellant
PMS McNamara and TR Fischer for respondent
Judgment:
19 July 2019
JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 19 July 2019 at 11:30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: DLA Piper, Auckland
Simpson Grierson, Auckland
Foodstuffs North Island Limited v Auckland Council [2019] NZHC 1697 [19 July 2019]
CONTENTS
Introduction [1]
The statutory framework [10]
What happened in this case – more detail
The P-LAP and first round appeal [27]
The Authority’s decision on the first round appeal [31]
The second round appeal [37]The Council’s concern at the “second bite of the cherry” [41]
The Authority’s decision on the Council’s concern [43]
The appeal [50]
The parties’ submissions
Foodstuffs’ submissions [61]
The Council’s submissions [69]
Discussion
Is an appeal against a resubmitted P-LAP limited to the amended aspect of
an amended element? [74]
Abuse of process – legal principles [82]
Abuse of process – application in this case [93]
Result [112]
Costs [114]
Introduction
[1] Auckland Council wishes to have a policy for the sale and supply of alcohol in the Auckland region. Territorial authorities are not required to have such a policy, but if they wish to do so, the policy must be created and implemented in accordance with the Sale and Supply of Alcohol Act 2012 (the Act). Under the Act, such a policy is called a Local Alcohol Policy (LAP). As part of the consultation process leading to a LAP, the Council must produce a Provisional Local Alcohol Policy (P-LAP). Interested parties can made submissions on and appeal against elements of a P-LAP. It is aspects of the Council’s P-LAP which are at issue in this case.
[2] The Act sets out default maximum trading hours for the sale and supply of alcohol nationwide.1 Those hours are between 7 am and 11 pm, Monday to Sunday,2 for premises for which an off-licence is held. A territorial authority may, however, include in its LAP maximum trading hours which are different to the Act’s default trading hours.
[3] The Council prepared a P-LAP which originally contained maximum trading hours for the sale and supply of alcohol of 9 am to 9 pm, Monday to Sunday. A number of parties, including the appellant (Foodstuffs), lodged an appeal with the Alcohol Regulatory and Licensing Authority (the Authority) in relation to elements of the P- LAP, including the maximum trading hours. The Authority has limited jurisdiction on an appeal, being to, in effect, determine whether the element appealed against is unreasonable in light of the object of the Act.3
[4] On the appeal against the Council’s proposed maximum trading hours, the Authority held that the element of the P-LAP relating to those hours was, as a whole, unreasonable. While stating that the maximum trading hours clause was a single element and the start and end times for the trading hours could not be severed, the Authority nevertheless said it was the opening hour aspect of the element that rendered
1 Sale and Supply of Alcohol Act 2012, s 43.
2 Excluding certain statutory holidays.
3 Sale and Supply of Alcohol Act 2012, s 4, provides the Act’s object is that the sale, supply and consumption of alcohol should be undertaken safely and responsibly, and that the harm caused by the excessive or inappropriate consumption of alcohol should be minimised.
the element unreasonable. The Authority therefore requested the Council to reconsider the maximum trading hours element. The Council did so and resubmitted its P-LAP to the Authority with an amended element setting the maximum trading hours at 7 am to 9 pm.
[5] Under the statutory scheme, the Authority is required to deal with the resubmission of a P-LAP as if were an appeal against every new or amended element that has replaced an earlier element appealed against.4 In the context of that appeal, Foodstuffs wants to file evidence and make submissions on the new maximum trading hours element in the P-LAP. Its evidence will, in large part, address the 9 pm aspect of the maximum trading hours.
[6] The Council is concerned that in doing so, Foodstuffs is inappropriately having a “second bite at the cherry”, given the Authority had already received evidence and heard submissions on the 9 pm closing hour, and while finding the whole of the maximum trading hours element unreasonable, stated it was the opening hour aspect of it that rendered it so. It therefore asked the Authority to direct that Foodstuffs could not adduce further evidence or make submissions in the appeal on the 9 pm closing hour.
[7] The Authority accepted the Council’s position. In two interlocutory decisions which are the subject of the appeal to this Court, the Authority ruled that it would be an abuse of process for Foodstuffs to file further evidence and make further submissions on the 9 pm aspect of the maximum trading hours element. It therefore directed that Foodstuffs can only adduce evidence and make submissions on the 7 am aspect of the element, unless reference to the 9 pm closing hour is necessary by virtue of it being incidental or ancillary to addressing the span of the maximum trading hours.
[8] Foodstuffs now appeals against the Authority’s finding of abuse of process. The parties are agreed that the appeal is on a question of law, namely whether the Authority was correct in law to categorise Foodstuffs’ proposed approach as an abuse of process.
4 Sale and Supply of Alcohol Act 2012, s 86(1).
[9] Before setting out the factual background to the P-LAP and the parties’ submissions, it is first necessary to set out the statutory framework for a LAP and a P-LAP in more detail.
The statutory framework
[10] Pursuant to s 75 of the Act, any territorial authority may have a policy relating to the sale, supply or consumption of alcohol within its district (i.e. a LAP).5 Pursuant to s 75(4), no territorial authority is required to have a LAP. If, however, a territorial authority does wish to have a LAP, that policy must be produced, adopted and brought into force in accordance with Subpart 2 of the Act.6
[11] Section 77(1) of the Act states that a LAP may include policies on any or all of the following matters (but no others):
(a)the location of licensed premises by reference to broad areas;
(b)the location of licensed premises by reference to proximity to premises of a particular kind or kinds;
(c)the location of licensed premises by reference to proximity to facilities of a particular kind or kinds;
(d)whether further licences (or licences of a particular kind or kinds) should be issued for premises in the district concerned, or any stated part of the district;
(e)maximum trading hours;
(f)the issue of licences, or licences of a particular kind or kinds, subject to discretionary conditions; and
(g)one-way door restrictions.
5 Sale and Supply of Alcohol Act 2012, s 75(1).
6 Section 75(3).
[12] As flagged earlier in this judgment, through the operation of ss 43 and s 44 of the Act, and in the absence of a different policy on maximum trading hours in a LAP, the maximum trading hours under the Act are between 7 am and 11 pm, Monday to Sunday.7
[13] Section 78(1) provides that a territorial authority that wishes to have a LAP must first produce a draft policy. Section 78(2) sets out a number of matters to which the authority must have regard when producing a draft policy. It must also consult with certain parties, including the Police and Medical Officers of Health.8
[14] Having produced a draft policy, s 79 of the Act provides that if the territorial authority still wishes to have a LAP, it must then produce a P-LAP by using “the special consultative procedure” to consult on the draft policy. The special consultative procedure is a consultation procedure defined in s 5(1) of the Local Government Act 2002. The nature and content of that process is not relevant to the present appeal and I therefore say nothing further about it.
[15] When producing a P-LAP, a territorial authority must again have regard to the matters set out in s 78(2).
[16] If, after producing the P-LAP, the territorial authority still wishes to continue to have a LAP, it is required to give public notice of:
(a)the P-LAP;
(b)the rights for appeal against it; and
(c)the grounds upon which an appeal may be made.9
[17]Section 81 of the Act sets out the right of appeal against a P-LAP:10
7 Sale and Supply of Alcohol Act 2012, ss 44(1)(a) and 43(1)(b).
8 The latter being a role established and defined by the Health Act 1956.
9 Sale and Supply of Alcohol Act 2012, s 80(1).
10 The italicised aspects of this and other statutory sections set out in this judgment are relevant to a statutory interpretation argument made by the Council, discussed at [74]-[81] below.
81 Right of appeal to licensing authority
(1)A person or an agency that made submissions as part of the special consultative procedure on a draft local alcohol policy may, within 30 days of the public notification of the resulting provisional local alcohol policy, appeal to the licensing authority against any element of that provisional local alcohol policy.
(2)The Police or a Medical Officer of Health may, within 30 days of the public notification of the resulting provisional local alcohol policy, appeal to the licensing authority against any element of that provisional local alcohol policy.
(3)Except as provided in subsection (2), a person or agency that did not make submissions as part of the special consultative procedure on a draft local alcohol policy cannot appeal against any element of the resulting provisional local alcohol policy.
(4)The only ground on which an element of the provisional policy can be appealed against is that it is unreasonable in the light of the object of this Act.
(5)The appeal must be made in accordance with regulations made under this Act.
(6)The territorial authority concerned is the respondent in an appeal under this section.
[Emphasis added]
[18] I will refer in this judgment to appeals to the Authority under s 81 of the Act as a “first round appeal”. A first round appeal is to be conducted by way of public hearing.11
[19] As noted earlier, the Authority’s powers on a first round appeal are reasonably limited, and are, in effect, binary. They are defined by s 83 of the Act:
83Consideration of appeals by licensing authority
(1)The licensing authority must dismiss an appeal against an element of a provisional local alcohol policy if it—
(a)is not satisfied that the element is unreasonable in the light of the object of this Act; or
(b)is satisfied that the appellant did not make submissions as part of the special consultative procedure on the draft local alcohol policy concerned.
11 Sale and Supply of Alcohol Act 2012, s 82.
(2)The licensing authority must ask the territorial authority concerned to reconsider an element of a provisional local alcohol policy appealed against if it is satisfied that—
(a)the appellant made submissions as part of the special consultative procedure on the draft local alcohol policy concerned; and
(b)the element is unreasonable in the light of the object of this Act.
(3)The licensing authority must notify the appellant and territorial authority of its decision.
(4)The appellant has no right of appeal against the decision of the licensing authority.
(5)Subsection (4) does not limit or affect the Judicial Review Procedure Act 2016.
[20] If the first round appeal against an element of a P-LAP is successful, s 83(2) requires that the element is effectively remitted back to the territorial authority for reconsideration. As can be seen from s 83(4), and excluding the remedy of judicial review, an appellant has no right of appeal against the Authority’s decision on a first round appeal. The process accordingly comprises a fairly tight regime for appeals against P-LAPs and the determination of those appeals.
[21] If the Authority considers an element unreasonable and therefore asks the relevant territorial authority to reconsider it, s 84 sets out what the territorial authority must then do:
84Actions territorial authority may take if asked to reconsider element of provisional policy
(1)If the licensing authority asks a territorial authority to reconsider an element of a provisional local alcohol policy, the territorial authority must—
(a)resubmit the policy to the licensing authority with the element deleted; or
(b)resubmit the policy to the licensing authority with the element replaced with a new or amended element; or
(c)appeal to the High Court against the licensing authority’s finding that the element is unreasonable in the light of the object of this Act; or
(d)abandon the provisional policy.
(2)In an appeal to the High Court against the licensing authority’s finding that an element of a provisional local alcohol policy is unreasonable in the light of the object of this Act, every person who appealed to the licensing authority against the element is a respondent.
[Emphasis added]
[22] Accordingly, and unlike appellants to the Authority, the relevant territorial authority can appeal the Authority’s finding that an element is unreasonable.12
[23] If, however, pursuant to s 84(1)(b), the territorial authority resubmits the P- LAP to the Authority with the relevant element replaced with a new or amended element (as occurred in this case), s 86 sets out how the Authority is to deal with the resubmitted P-LAP:
86 Effect of resubmission of provisional policy to licensing authority
(1)The licensing authority must deal with the resubmission of a provisional local alcohol policy under section 84(1)(b) or 85(2)(b) as if it were an appeal against every new or amended element that has replaced an earlier element appealed against; and sections 81 to 85 apply accordingly.
(2)The licensing authority may deal with all or any part of the resubmission in private.
(3)Subsection (2) overrides subsection (1) and section 82.
[Emphasis added]
[24] Given the resubmitted P-LAP is to be treated as if it were an appeal (under s 81), I will refer to this as a “second round appeal”. Unlike first round appeals, which can be against any element of a P-LAP, a second round appeal is limited to any new or amended elements in the resubmitted P-LAP. In this way, the statutory regime envisages a gradual narrowing of the scope of any successive appeals against P-LAPs.
[25] The Authority’s ability to deal with any or all of a second round appeal in private is also intended to drive efficiency. In its report on the Alcohol Reform Bill, the Justice and Electoral Committee stated:13
We recommend amending [draft s 86] to allow the Alcohol Regulatory and Licensing Authority to reach a decision on an amended LAP without having to hold further public hearings. This change would ensure the LAP approval
12 Sale and Supply of Alcohol Act 2012, s 85 sets out what occurs if the territorial authority does appeal. As that did not occur in this case, I say nothing further about it.
13 Alcohol Reform Bill 2010 (236-2) (Select Committee Report) at 7.
process was not subject to continual appeals against resubmitted LAPs. The Licensing Authority would still retain the discretion to hold a public hearing if it considered this necessary, and would be required to have regard to the issues raised in the initial appeal when coming to a decision on an amended LAP.
[Emphasis added]
[26] The highlighted aspect of the above extract from the Committee’s report becomes relevant to matters discussed later in this judgment.14
What happened in this case – more detail
The P-LAP and first round appeal
[27] As noted, the Council wishes to have a LAP. Following the process under the Act, by May 2015, the Council had produced a P-LAP for the Auckland region. Clause
4.3.1 of the P-LAP addressed maximum trading hours:
Pursuant to ss 77(1)(e) and 45 of the Act, maximum trading hours of off- licences in the Auckland region are 9am to 9pm, Monday to Sunday.
[28] Foodstuffs (being a party with a right of appeal under s 81 of the Act) appealed to the Authority against a number of elements of the P-LAP, including cl 4.3.1.
[29] Foodstuffs’ appeal was contained in an appeal template form produced by the Authority. Part 3 of that document is headed “Grounds of appeal” and contains a box in which the appellant is requested to:
detail the element of the provisional local alcohol policy that you are appealing and why the element is unreasonable in light of the object of the [Act]. Ensure this is in sufficient detail to fully inform the Licensing Authority and other parties of the issues in the appeal.
[Emphasis added]
[30] In a separate document accompanying the template form, Foodstuffs listed a number of elements against which it appealed, including, as noted, cl 4.3.1. The document also set out (under the heading “Element 1 – maximum off-license trading hours”) the reasons why Foodstuffs considered the proposed maximum trading hours of 9 am to 9 pm were unreasonable. The essence of Foodstuffs’ complaint was that
14 See [104] below.
the proposed “tightening” of the maximum trading hours was not supported by any sufficient evidence that prohibiting the sale of alcohol during the default maximum trading hours in the Act would reduce or minimise harm caused by the excessive or inappropriate consumption of alcohol.
The Authority’s decision on the first round appeal
[31] After a public hearing on Foodstuffs’ and other appellants’ appeals, the Authority found that cl 4.3.1 of the P-LAP was unreasonable in light of the object of the Act. In its summary of its decision, the Authority said the following:15
After considering the appeals, the Authority is satisfied that the following elements of the PLAP are unreasonable in light of the object of the Act. The Council is accordingly asked to reconsider these elements (s 83(2)).
The first element is cl.4.3.1 of the PLAP which proposes for Auckland, region- wide maximum off-license trading hours of 9 am to 9 pm. Specifically, the Authority is satisfied that the 9 am restriction on opening is unreasonable in light of the object of the Act. Given that the opening hour forms part of the same element as the maximum closing hour, however, the Authority asks the Council to reconsider cl 4.3.1 of the PLAP in its entirety.
The second element is comprised of … .
[32] In the body of its decision, the Authority summarised the “elements under appeal”, stating that this included “cl 4.3.1 (maximum trading hours for off-licenses in the Auckland region)”.
[33] The decision then contained a substantive discussion of the appeal against the element relating to maximum trading hours. There was first a general discussion, and then a discussion under the sub-heading “Night (closing hour) restriction”, followed by a discussion under the sub-heading “Morning (opening hour) restriction”. In its discussion under the sub-heading “Night (closing hour) restriction”, the Authority stated:16
Notwithstanding that evidence of reduction in harm from specific reductions in trading hours of off-licenses is sparse, there is evidence to establish a relationship between off-license trading hours and alcohol consumption and harm. Given the level of alcohol related harm in Auckland, the Authority does not consider that it has been established that the closing hour restriction is
15 Redwood Corporation Ltd v Auckland Council [2017] NZARLA 247 at [5]-[7].
16 At [146].
unreasonable in light of the object of the Act. Given this evidential basis for the closing hour restriction, if the Council considers the closing hour restriction for off-licenses has the possibility of meeting the object of the Act, then the Council is entitled to test whether that possibility is a reality.
[Emphasis added]
[34] Under the sub-heading “Morning (opening hour) restriction”, the Authority said:17
In the absence of stronger evidence to support an opening hour restriction, the Authority considers that, on balance, the opening restriction is unreasonable in light of the object of the Act.
[35] In an extract of its decision which is of some importance to the present appeal, the Authority went to state the following:18
The morning restriction is part of the same element as the evening restriction. Accordingly, all of cl 4.3.1 is deemed unreasonable in light of the object of the Act.
The Authority does not consider that the morning hour restriction is severable from the closing hour restriction. Whether the element could have been drafted as two elements is not something that the Authority needs to consider. The element is drafted as a single element. The Authority notes, however, that the construction of the element is similar to the construction of s 43(1)(a) which says the maximum trading hours as including both an opening and closing hour component as part of the ‘trading hours’. And the expression in s 77(1)(a) of the Act is a “maximum trading hours”. This implies both an opening and closing hour.
Given this, the Council is asked to reconsider that maximum trading hours for off-licenses (i.e. cl 4.3.1) noting, however, that the Authority considers that it is the opening hour aspect of the element that renders it unreasonable in light of the object of the Act.
[Emphasis added]
[36] The Council did not appeal the Authority’s decision to the High Court. Rather, it reconsidered cl.4.3.1 and resubmitted the P-LAP to the Authority. The maximum trading hours element was amended so that the opening hour was 7 am (i.e. rather than 9 am). The closing hour remained the same, namely, 9 pm.
17 At [157].
18 At [158]-[160].
The second round appeal
[37] Pursuant to s 86(1) of the Act, the Authority is required to deal with the resubmitted P-LAP as if it were an appeal against the amended cl 4.3.1. Although s 86(1) of the Act already required the Authority to proceed as if there were an appeal against the amended cl 4.3.1, Foodstuffs also filed a notice of appeal against that element. Its appeal was filed under s 81(1) of the Act, which applies to any second round appeal.19
[38] Foodstuffs’ appeal was limited to cl 4.3.1 (maximum trading hours). Its grounds of appeal state that “clause 4.3.1 … is unreasonable … because of the 9 pm aspect of the clause and for the following reasons …”. Six grounds for why the element is said to be unreasonable are then set out. Four of these are expressly directed to the 9 pm aspect of cl 4.3.1. Two are framed in general terms (i.e. not directed to either the opening or closing aspects of the element).
[39] Foodstuffs says that when compared to its earlier appeal against cl 4.3.1, it can be seen that the grounds of appeal are different in a number of respects. I have reviewed the grounds of appeal on cl 4.3.1 in both the first and second round appeals. While there are some differences (reflecting, for example, the change to the opening hour from 9 am to 7 am), the substance of the grounds are similar in many respects.
[40] In determining the second round appeal, the Authority’s choice will again be a binary one. If it decides the amended element is unreasonable, it must again ask the Council to reconsider it. The Council would be able to appeal that decision to the High Court. If the Authority is not satisfied the element is unreasonable, it must dismiss the appeal. Neither Foodstuffs or any other appellant will be able to appeal that decision to the High Court. This highlights the “narrowing” of the scope and prospect of any further appeals.
19 As a result of s 86(1) of the Act.
The Council’s concern at the “second bite of the cherry”
[41] By memorandum dated 5 December 2017, the Council sought an order from the Authority that the submissions and evidence in Foodstuffs’ (and other appellants’) appeals be confined “to the amended aspect of cl 4.3.1 of the P-LAP i.e. the 7 am opening hour for off-licenses”. The Council said that the closing hour aspect of cl 4.3.1 had been considered, determined and upheld by the Authority in its decision on the first round appeal.
[42] Given this, the Council said Foodstuffs was seeking to relitigate the 9 pm closing time, which was prohibited by the doctrine of issue estoppel. In its subsequent written submissions to the Authority, the Council widened its challenge to also include abuse of process.
The Authority’s decision on the Council’s concern
[43] Having received comprehensive submissions from the parties on both issue estoppel and abuse of process, the Authority issued an interim decision dated 21 August 2018 (the August Decision). It set out the principles concerning issue estoppel and abuse of process, drawn from authorities such as Hunter v Chief Constable of West Midlands Police and Shiels v Blakeley.20
[44]The Authority then considered the scheme of the Act. It observed:21
There is no dispute between the parties that s 86 provides that any resubmitted PLAP in which an element has been replaced with a new or amended element, must be dealt with as if it were an appeal against that new or amended element. The issue is rather whether the principles of abuse of process or issue estoppel are precluded by, or inconsistent with, the scheme of s 86 such that s 86 would be thwarted by the Authority allowing evidence and submissions on only part of cl 4.3.1.
[45]It went on to state that:22
20 Hunter v Chief Constable of West Midlands Police [1982] AC 529 (HL); [1981] 3 All ER 727; Shiels v Blakeley [1986] 2 NZLR 262. The Authority also referred to Palmer v Hamlin, HC Auckland CP43/SD01, 11 December 2001; and Opua Ferries Ltd v Northland Regional Council, HC Whangarei CP4/99, 17 May 2004.
21 Foodstuffs North Island Ltd v Auckland Council [2018] NZARLA 249-250 at [127] [August Decision] at [111].
22 At [120].
The Authority’s evaluation of the reasonableness of a resubmitted element, however, is not done in a vacuum. Rather it is done in the context of the Authority’s determination of earlier appeals against the PLAP. Self-evidently, in the case of a resubmission, an element is resubmitted precisely because the Authority has asked the Council to reconsider it. In the case of an amended element, the Authority cannot determine the reasonableness of the resubmitted element without being cognisant of the reasons why it asked the Council to reconsider the element and why the Council amended it as it did. For its part, the Council is entitled to rely on the reasons provided by the Authority when asked to reconsider an element.
[Emphasis added]
[46] The Authority also considered that “not all resubmissions are created equal”. It said: “the nature of a resubmitted element can range from an amendment to an entirely new element in lieu of the earlier element”. It said:23
Specifically, the Authority recognises that it would be a significant obstacle to a territorial authority seeking to implement a PLAP, if s 86 was read to mean every resubmitted element of a PLAP triggered a further round of fresh appeals not only in respect of other elements of the PLAP (as Redwood sought to do), but also in respect of a matter which the Authority has already considered when directing the Council to reconsider the element in question.
[Emphasis added]
[47] The Authority concluded that there was not strictly an issue estoppel. It said this was because the reason why it referred cl 4.3.1 back to the Council was because the morning hour aspect was considered unreasonable. Thus its observation that the 9 pm closing hour was not unreasonable did not contribute and was not determinative of its decision that cl 4.3.1 was unreasonable. The Authority nevertheless noted that the doctrine of abuse of process is broader. It stated that the issue on the 9 pm aspect of cl 4.3.1 “was not decided in [Foodstuffs] favour”. The Authority concluded:24
The Authority agrees with the Council that it would be an abuse of the Authority’s process which would result in unfairness and undermine confidence in the administration of justice, if after considerable argument over a period of four weeks the 9 pm closing hour could be argued again. Given that the resubmission is an amendment to the opening hour in direct response to the decision of the Authority after hearing the evidence and submissions in the initial appeals, the Council is entitled to the benefit of the Authority’s direction that it is the morning hour restriction that the Authority found to be the cause of the unreasonableness of cl 4.3.1. The Authority heard evidence and argument in respect of the 9 pm aspect of the element and was not satisfied that aspect of the appellants’ challenges met the test in s 81(4) of the Act.
23 At [122].
24 At [130]-[131].
In terms of the fresh or updated evidence which the appellants seek to adduce, the Authority is not satisfied that this evidence is sufficiently new or relevant to warrant reconsideration of the 9 pm aspect of cl 4.3.1.
[48] The Authority recognised that given the inevitable time gap between a decision of the Authority and a resubmission of a P-LAP with new or amended elements, more and updating evidence will likely be available. It stated, however:25
In the latter case, however, to allow further evidence on matters already decided before a PLAP is brought into force will result in a situation where the benefit of the Authority’s decision on the initial appeals becomes increasingly unobtainable.
[Emphasis added]
[49] The Authority therefore held that relitigating the 9 pm aspect of cl 4.3.1 would be an abuse of the Authority’s process. It noted, however, that Foodstuffs had indicated it was concerned with the “span of hours”. The Authority agreed that discussion of the span of hours might require reference to both the 7 am morning opening hour and 9 pm evening closing hour. In a second decision issued on 12 September 2018 (the September Decision), the Authority therefore made final orders in the following terms:26
Pursuant to s 203(9) of the Act, the Authority directs that Foodstuffs North Island Ltd and Woolworths New Zealand Ltd are to confine their evidence and submissions in respect of their appeals against cl 4.3.1 of the Auckland Council’s Provisional Local Alcohol Policy, as resubmitted to the Authority on 12 October 2017 and following the Authority’s direction of 19 July 2017:
[a]to matters not previously determined including:
[i]the 7:00 am amended aspect of the element; and
[ii]the span of the maximum trading hours; but
[b]excluding the 9.00 pm closing hour aspect of cl 4.3.1 except in so far as reference to the 9.00 pm closing hour is necessary by virtue of it being incidental or ancillary to addressing the span of the maximum trading hours.
25 At [135].
26 Foodstuffs North Island Ltd v Auckland Council [2018] NZARLA 255-256.
The appeal
[50] Foodstuffs appealed both the Authority’s August and September Decisions to this Court.27 Its notice of appeal contains a number of grounds, though all reduce down to the proposition that the Authority had erred in law by:
Wrongly determining that it would be an abuse of process for Foodstuffs, in its appeal against element 4.3.1 (Element) of the respondent’s resubmitted Provisional Local Alcohol Policy (RPLAP), to adduce evidence and/or present submissions relevant to the 9 pm aspect of the element, other than insofar as reference to the 9 pm aspect of the element is necessary by virtue of it being incidental or ancillary to addressing the span of the element.
[51] There was some debate as to the proper statutory basis for the appeal. The appeal provisions in the Act are, on their face at least, somewhat curious. Two sets of appeal rights are contained in Part 2, Subpart 5 of the Act. The first right of appeal is set out in s 159:
159 Who may appeal to High Court
Any party may appeal to the High Court against a decision of the licensing authority if—
(a)the proceedings concerned commenced in the licensing authority; or
(b)a licensing committee referred the proceedings concerned to the licensing authority for decision.
[52] Under this appeal, the High Court is a “first appeal” court, given the proceedings must have commenced in or been transferred to the Authority.
[53] Pursuant to s 161 of the Act, every such appeal is by way of rehearing. The appeal may be on questions of law or fact.
[54]What appears to be a further right of appeal is set out in s 162 of the Act:
162 Appeal against decision of licensing authority on question of law
(1)Subject to subsection (3), where any party to any proceedings before the licensing authority (whether the proceedings commenced in a
27 Counsel agreed that the issues in both appeals raised common questions of law and therefore that the two proceedings ought to be consolidated, with the notice of appeal against the September Decision being adopted as the consolidated notice of appeal. For completeness, I note that the Council did not cross-appeal the Authority’s finding that an issue estoppel did not arise.
licensing committee or the licensing authority) is dissatisfied with any determination of the licensing authority in the proceedings as being erroneous in point of law, that party may appeal to the High Court on the question of law concerned.
(2)Subject to sections 152, 153, 161, and 163 to 166, every appeal under this section must be dealt with in accordance with rules of court.
…
[55] The reference in s 162(2) to s 161 confirms that an appeal under s 162 is also by way of rehearing.
[56] Section 162 captures decisions of the Authority where the Authority was itself hearing an appeal from a licencing committee. In that context, the High Court would be a “second appeal” court. In such “second appeals” to the High Court, a party may only appeal from the Authority’s decision on a question of law.
[57] But s 162 is not limited to when the Authority was itself acting on an appeal; it will include proceedings which were commenced in the Authority. In this sense, it overlaps with s 159.
[58] The interaction between the s 159 and s 162 appeal rights was considered by Duffy J in Grand Hotel Awaroa Ltd v McErlean.28 Duffy J expressed the provisional view that the right of general appeal in s 159 of the Act “appears to … be directed at the substantial decision of the Authority rather than at procedural rulings or interlocutory decisions”.29 However, she was not required to rule on the issue of any different purpose and scope of ss 159 and 162, as the parties agreed that the appeal in that case was a question of law and thus fell within the scope of s 162 in any event.
[59] Counsel in this case are also agreed that nothing turns on any potential difference between ss 159 and 162. Both agree that the matter arising on this appeal is a question of law. Appeals under both s 159 and s 162 are by way of rehearing. I do not consider it appropriate or necessary to embark upon a detailed analysis of the appeal rights under ss 159 and 162 of the Act. As noted, nothing turns on any difference in this particular case. Further, the issue was not the subject of any
28 The Grand Hotel Awaroa Ltd v McErlean [2016] NZHC 269.
29 At [24].
substantive argument before me. Judicial comment and findings on the appeal rights under ss 159 and 162 ought to be reserved for a case in which the issue is determinative and the subject of full argument before the Court.
[60] I approach the question on this appeal in the following way: on the facts before the Authority, which are not in dispute, did the Authority err in law by concluding that Foodstuffs’ proposed approach to the second round appeal was an abuse of process?
The parties’ submissions30
Foodstuffs’ submissions
[61] Foodstuffs first submits that to preclude it from dealing with the 9 pm element in a second round appeal cannot be an abuse of process, given it only wishes to do what it is entitled to do under the Act. It notes that pursuant to s 86(1), the Authority must deal with the resubmitted P-LAP as an appeal against every new or amended element. The Authority found that the opening and closing hours within the maximum trading hours element could not be severed from each other, and thus the entirety of cl 4.3.1 was held to be unreasonable. Foodstuffs therefore submits that in compliance with s 86(1), the Authority must consider the whole of amended cl 4.3.1 on the second round appeal. Foodstuffs says it is doing no more than seeking to make submissions on and adduce evidence in relation to a matter properly before the Authority.
[62] Foodstuffs further submits that it is apparent from the August Decision that the Authority proceeded on the basis that it had already finally ruled on – and Foodstuffs was bound by – the 9 pm aspect of cl 4.3.1. Foodstuffs refers to the Authority’s comment that:
The Council is entitled to the benefit of the Authority’s direction that it is the morning hour restriction that the Authority found to be the cause of the unreasonableness of cl 4.3.1.
[63] Foodstuffs says the Authority was wrong to have reached this view. It says the Authority accepted that its decision or determination on the 9 pm aspect of cl 4.3.1
30 Both parties made comprehensive and helpful written and oral submissions on the appeal. I mean no disrespect by summarising them in a fairly brief way in this judgment.
could not give rise to an issue estoppel against Foodstuffs; or in other words, that Foodstuffs was not legally bound by any earlier decision on the 9 pm aspect of the amended element.
[64] Foodstuffs says it was therefore wrong for the Authority to proceed on the basis that its earlier comments or statements on the 9 pm closing hour could nevertheless have the effect of binding Foodstuffs in the second round appeal. Because the Authority’s earlier findings or statements on the 9 pm aspect of the element could not legally bind Foodstuffs, Foodstuffs says that to address the 9 pm aspect of the element in the second round appeal cannot amount to a collateral attack on a previous determination.
[65] Foodstuffs accepts that when dealing with the second round appeal, the Authority will not make its determination in a vacuum, and it cannot ignore its earlier reasons why it asked the Council to reconsider the element. Mr Thain, counsel for Foodstuffs, says that in this way, it is not a case of Foodstuffs seeking to “relitigate the whole gamut”. The Authority will start from the position it reached in the first round appeal, and Foodstuffs will need to address what has changed or what is new.
[66] Foodstuffs therefore says that by precluding any consideration of the 9 pm aspect of the amended element in the second round appeal, the Authority went well beyond recognising that it would not “start from scratch” in that appeal. In particular, it complains that at the time of the ruling, the Authority was not appraised of the actual evidence Foodstuffs would call on the appeal. Ruling it out altogether was therefore “putting the cart before the horse”. Foodstuffs says the Authority’s decision has the effect of putting Foodstuffs in the position it would have been in if the Authority had upheld the Council’s argument in the earlier appeal that the morning and evening hour aspects of the element were in fact two separate elements. Foodstuffs submits that the Authority cannot effectively come to that view now “by a side wind”.
[67] Foodstuffs further says that contrary to the Authority’s view, it would not be unfair to the Council, nor would it undermine confidence in the administration of justice, if Foodstuffs were able to adduce evidence and make submissions on the 9 pm element. As noted, Foodstuffs says it is merely doing what it is permitted to do under
the statute. It further says that it would not undermine confidence in the administration of justice for Foodstuffs to adduce evidence which was not available at the time of the appeal against the original element. Foodstuffs notes that given a number of the matters to which the Authority must have regard in s 78(2) of the Act are dynamic, there may well be different or updating evidence that is relevant to the 9 pm position.
[68] Mr Thain ultimately characterised the matter as Foodstuffs not having a “second bite of the cherry”, given amended cl 4.3.1 is “a new cherry.”
The Council’s submissions
[69] Mr McNamara for the Council raised a preliminary point of statutory interpretation. The Council submits that the “amended element” for the purposes of a second round appeal under ss 86 and 81 of the Act is not cl 4.3.1 in its entirety, and does not include the 9 pm closing hour. The 9 pm closing hour has not been amended as between the original and resubmitted P-LAP. The Council accordingly says the proper interpretation of the reference to the “amended element” in s 86(1) of the Act is the amended aspect of the element only and thus in this case, the 7 am opening hour.
[70] Mr McNamara says that such an approach to the interpretation of the “amended element” for a second round appeal is consistent with the Parliamentary intention as discernible in s 86(1). He says that on a resubmitted P-LAP, the only issue is whether the new or amended element in the P-LAP, which has not yet been “tested” before the Authority, is unreasonable in light of the object of the Act. It is only the amendments themselves that have not been tested, not the other aspects of the element. Mr McNamara says this is consistent with the overriding purpose of there being a progressive narrowing of issues as successive iterations of the P-LAP proceed through the appeal process.
[71] Even if this statutory interpretation point is not accepted, the Council says that the Authority’s decision on abuse of process was clearly correct in any event. Mr McNamara emphasises that abuse of process is a broader concept than issue
estoppel, referring in this context to observations of the House of Lords in Hunter v Chief Constable of West Midlands Police.31
[72] The Council’s submissions proceed on the general basis that the Authority had already made a determination against Foodstuffs (and other appellants) on the 9 pm aspect of cl 4.3.1. Mr McNamara submits that what Foodstuffs is seeking to do is in substance a collateral attack on an earlier determination and as such, it may be struck out.32 He submits Foodstuffs is using the appeal against cl 4.3.1 in the resubmitted P-LAP to “attack the Authority’s express finding … that a 9 pm closing time is not unreasonable in light of the object of the Act”. The Council says Foodstuffs and other parties who submitted on that issue had a full opportunity to contest that issue over four weeks of hearing and they should not now have a further opportunity to do so.
[73] Mr McNamara further submits that to permit re-argument on the closing hour aspect of the element would also be unfair to the Council and other parties who supported that aspect of the element, and would undermine the public confidence in the administration of justice. The Council submits that the public would justifiably wonder why the Council was not entitled to the “benefit” of the Authority’s express finding that the 9 pm closing hour is not unreasonable in light of the object of the Act, and why the appellants should have a further opportunity to raise and address the very same issue in the second round appeal.
Discussion
Is an appeal against a resubmitted P-LAP limited to the amended aspect of an amended element?
[74] I deal first with the Council’s submission that the “amended element” in respect of which there is a right of appeal under ss 81 and 86 of the Act is not cl 4.3.1 in its entirety, but only the 7 am opening hour aspect of that element.
[75] As a preliminary point I note that this argument is contrary to the Council’s submissions to the Authority which led to the August Decision. In its submission, the
31 Hunter v Chief Constable of West Midlands Police, above n 20.
32 Relying on Palmer v Hamlin, above n 20.
Council accepted that the appeal referred to in s 86 is an appeal of the whole amended element, rather than just the amended aspect of that element:
Counsel for Foodstuffs submits that the Act provides for resubmission of an amended element to be dealt with “as an appeal against that element”, not only the amendment or the amended aspect of the element. That is a correct interpretation of s 86, but does not rule out the application of abuse of process or the equitable doctrine of issue estoppel. The Council is not arguing that Foodstuffs’ and Progressive appeals are, as a matter of jurisdiction, confined to the amended aspect of cl 4.3.1 i.e. the 7 am opening time. The argument is instead that the Authority should order that the Foodstuffs and Progressive appeals are confined to the 7 am opening time, to prevent an abuse of the Court’s process, or on the basis that issue estoppel arises.
[76] Obviously, however, the Council’s earlier position on this issue is not determinative of what is ultimately a question of law.
[77] I disagree with the Council’s (present) submission that the reference to “amended element” in s 86 is a reference to the amended aspect of the element only. First and most importantly, that is not what the statutory section says. On its face, the appeal envisaged under s 86 is in relation to the entirety of the new element, or as is relevant in this case, the entirety of the amended element. If the appeal was to be limited even further, to the amended aspect(s) of the element, the section would have presumably said so.
[78] Further, that the appeal envisaged under s 86 is in relation to the amended element in its entirety makes sense, given it would be wrong to consider only those amended aspects of an element on a second round appeal. The amended aspects of an element in many cases could not be considered in a vacuum, i.e. divorced from the (unamended) balance of the element as a whole.
[79] This is also consistent with the Authority’s own view that the opening and closing aspects of the maximum trading hours element are not severable from each other,33 and hence its request of the Council to “reconsider clause 4.3.1 in its entirety”.34 It is also consistent with ss 44 and 45 of the Act, both of which refer to
33 Redwood Corporation Ltd v Auckland Council, above n 15, at [158].
34 At [6].
“maximum trading hours” as an “element”, and thus having both an opening and closing hour.
[80] In addition, I do not accept the interpretation now advanced by the Council is necessary to give effect to what I accept to be a clear statutory intent for a gradual “narrowing down” of the issues on successive appeals against a P-LAP. Any element of an original P-LAP can be appealed to the Authority.35 A second round appeal is much narrower, being limited to those aspects of a P-LAP which the Authority has found to be unreasonable, the Council has reconsidered, and has not abandoned. This narrowing effect is evident in this case, for example, where Foodstuffs’ appeal on the first round appeal was against several elements of the P-LAP, whereas its appeal on the second round appeal is limited to cl 4.3.1.
[81] For these reasons, I do not accept the statutory interpretation argument advanced by the Council. It is therefore necessary to address the issue of abuse of process.
Abuse of process – legal principles
[82] There are no hard and fast rules as to what will and will not amount to an abuse of process. A leading decision setting out the overriding principles and to which both parties referred is Hunter v Chief Constable of West Midlands Police.36
[83] That case concerned civil action taken by Mr Hunter, one of the six “Birmingham Bombers” convicted on multiple charges of murder following the bombing of two public houses in Birmingham in 1974. During their remand pending trial, the defendants made confessions in relation to the bombings. The defendants’ convictions, including those of Mr Hunter, turned largely on whether those confessions were admissible, it being accepted that absent the confessions, the charges could not be proved beyond reasonable doubt. The defendants said the confessions were inadmissible, as they had been extracted by the Police through violent attacks on them while held on remand, and threats made against their families.
35 Sale and Supply of Alcohol Act 2012, s 81(1).
36 Hunter v Chief Constable of West Midlands Police, above n 20.
[84] The admissibility of the confessions was the subject of an eight day voir dire conducted by the trial judge. He ruled the confessions admissible. The defendants were ultimately convicted by a jury and sentenced. Their conviction and sentence appeals were dismissed. The trial judge’s findings at the voir dire did not form part of the conviction appeal.
[85] Subsequently, Mr Hunter (and the other defendants) commenced civil proceedings against the Police and Home Office, seeking damages for the injuries said to have been suffered by them as a result of the assaults leading to the confessions. The defendants to the civil proceedings applied to strike out Mr Hunter’s proceeding on the basis of issue estoppel and/or abuse of process.
[86] The High Court declined the strike out application. The Court of Appeal granted it, but other than the judgment of Goff LJ, the judgments focussed on issue estoppel. On appeal to the House of Lords, Lord Diplock, in a speech with which all other members of the House agreed, focused on abuse of process.
[87] Having canvassed the procedural history to the criminal and civil proceedings, Lord Diplock observed that the alleged assaults which were the subject of the civil proceedings were “identical” to the alleged assaults which had been the subject of the voir dire ruling in the criminal proceedings. Lord Diplock stated that the trial judge’s ruling in the voir dire was a “final decision” against Mr Hunter (and the other defendants) on the question of whether the assaults had occurred.37
[88] In therefore dismissing Mr Hunter’s appeal in the civil proceedings, Lord Diplock said the following about abuse of process:38
My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied …
37 At 541, 542.
38 At 536.
[89]Lord Diplock went on to state:39
The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction…
[90]As will be appreciated from that extract of Lord Diplock’s speech set out at
[88] above, an abuse of process can arise even if the actions or course of conduct proposed falls within the strict bounds of a court’s procedural rules. This observation was accepted in NZ Social Credit Political League v O'Brien, where Somers J stated “[i]t recognises that the literal application of the law itself can be a tyranny”.40
[91] The broader principles concerning abuse of process discussed in Hunter v Chief Constable of West Midlands Police have also been accepted in this jurisdiction in a number of Court of Appeal and, more recently, Supreme Court, decisions.41 In NZ Social Credit Political League v O'Brien, Somers J framed the underlying dual objects of striking out for abuse of process as being “finality of litigation and fair use of curial procedures”.42 Hardie Boys J, giving judgment for the Court of Appeal in Meates v Taylor, also referred with approval to the extract from Hunter v Chief Constable of West Midlands Police at [88] above, noting that “the principle is designed to achieve finality of litigation and also fairness in the use of the Court’s procedures”.43 His Honour added a cautionary note, namely that the principle “is not however itself to be used as an instrument of unfairness. Its role is defensive rather than aggressive.”44
[92] More recently, in Lai v Chamberlains, the (then) Chief Justice, giving judgment for herself and Gault and Keith JJ, described the approach to abuse of process as follows:45
A categorical approach would be wrong. On the other hand, the restrictions upon res judicata should not be swept away by an expansive approach that
39 At 541.
40 New Zealand Social Credit Political League v O'Brien [1984] 1 NZLR 84 at 95.
41 See, for example, Reid v New Zealand Trotting Conference [1984] 1 NZLR 9; Shiels v Blakely, above n 20; Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7.
42 New Zealand Social Credit Political League v O'Brien, above n 40, at 95.
43 Meates v Taylor [1992] 2 NZLR 36 at 41.
44 At 41.
45 Lai v Chamberlains, above n 41, at [71].
collateral challenges to civil proceedings are always abusive. Whether proceedings are abusive can be assessed as appropriate against the principles of finality developed in Henderson v Henderson to protect litigants from vexation or against the principles developed in Hunter to protect public confidence in the administration of justice. For the reasons most fully explained in Arthur J S Hall v Simons by Lord Hobhouse, the different systems of error correction provided for civil and criminal proceedings mean that it may often not be an abuse of process to impugn a result in earlier civil proceedings. But civil proceedings which seek a conclusion that a subsisting criminal conviction is wrong will usually be an abuse of process.
Abuse of process – application in this case
[93] I first consider whether Foodstuff’s proposal to adduce evidence and make submissions on the 9 pm aspect of the maximum trading hours amounts to a collateral challenge to a final determination of the Authority.
[94] Although the Authority accepted in its August Decision that it had not finally determined the 9 pm aspect of the element,46 other aspects of the decision nevertheless reflect its view that it did reach a (final) finding, decision or conclusion on that matter, at least which ought to bind Foodstuffs (and other appellants) in the second round appeal. For example, the Authority stated in its August Decision that:
(a)the 9 pm aspect of the element “was not decided” in the appellants’ favour;47
(b)it made “findings” on both the opening and closing hours aspects of the element;48
(c)the approach proposed by Foodstuffs (and other appellants) would involve “re-litigation” of the 9 pm aspect of the element;49 and
(d)the Council “is entitled to the benefit of the Authority’s direction” that it is the morning hour restriction that rendered cl 4.3.1 unreasonable.50
46 August Decision, above n 21, at [127].
47 At [129]
48 At [129].
49 See, for example, at [138].
50 At [130]
[95] In order to determine what the Authority did and did not decide in the first round appeal, the starting point is the statutory scheme. Pursuant to s 83 of the Act, the Authority must dismiss an appeal against an element if it is not satisfied the element is unreasonable,51 or conversely, must ask the relevant territorial authority to reconsider any element it is satisfied is unreasonable.52 Accordingly, its decision is binary, and must be in respect of the element as a whole. It does not have jurisdiction to dismiss an appeal on the basis that an aspect of an element is unreasonable, or to require a territorial authority to reconsider only an aspect of an element. That is the reason for the Authority’s express finding that the whole of cl 4.3.1 was unreasonable.
[96] As such, and adopting the terminology used in Hunter v Chief Constable of West Midlands Police, there was not and could not have been a final decision against Foodstuffs that the 9 pm aspect of the element was reasonable. On the contrary, and consistent with the Authority’s jurisdiction under s 83 of the Act, there was only a final decision in favour of Foodstuffs that the whole of cl 4.3.1 was unreasonable.
[97] I accordingly do not agree that Foodstuffs adducing evidence and making submissions on the 9 pm aspect of the element would amount to a collateral attack on a final decision against it in the first round appeal. The Authority accordingly erred when it proceeded on the basis that its observations or statements concerning the 9 pm aspect of the element in the first round appeal could and ought to bind Foodstuffs on the second round appeal.
[98] I see the more relevant aspect of abuse of process as being whether Foodstuffs’ proposed approach is nevertheless unfair to the Council or other parties involved in the second round appeal, or otherwise brings the administration of justice into disrepute.
[99] Mr Thain is correct that what Foodstuffs proposes to do falls within the four corners of the appeal process under the Act. The Authority has found cl 4.3.1 to be unreasonable. It is therefore the whole of that element which is the subject of the
51 Sale and Supply of Alcohol Act 2012, s 83(1)(a).
52 Section 83(2)(b).
second round appeal.53 But as the authorities discussed above make clear, actions can still amount to an abuse of process even when they strictly comply with the relevant rules or procedures.
[100] I have nevertheless concluded that the Authority’s decision was incorrect under this aspect of the abuse of process doctrine also. In purporting to exercise its discretion under s 203(9) of the Act to exclude any evidence or submissions on the 9 pm aspect of the maximum trading hours element, the Authority has altered or narrowed the very scope or boundary of the appeal which is mandated by s 86 of the Act. In other words, the effect of the Authority’s August Decision is:
(a)that the subject matter of the second round appeal is something narrower or less than what the statute says is to be the subject of the appeal; and
(b)to transform the Authority’s earlier final decision in favour of Foodstuffs that cl 4.3.1 is unreasonable into a final decision against Foodstuffs that the 9 pm aspect of that element is not unreasonable, a decision from which Foodstuffs has no right of appeal.
[101] This latter point is relevant to observations of the Supreme Court in Arbuthnot v Chief Executive of Department of Work and Income.54 In that case, the Benefit Review Committee (BRC)55 made a determination against the respondent Chief Executive that Mr Arbuthnot was not in a relationship of a nature which disqualified him from certain benefits. The Chief Executive had no statutory right of appeal from that decision. But, in later appeal proceedings before the Social Security Appeal Authority (conducted by rehearing), the Chief Executive (as respondent to the appeal) sought to reopen the question of whether Mr Arbuthnot was in a disqualifying relationship. The High Court held that the Chief Executive could not advance that argument. The Court of Appeal and Supreme Court disagreed.
53 Section 86.
54 Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55, [2008] 1 NZLR 13.
55 A review body established under the Social Security Act 1964.
[102] One matter raised in argument before the Supreme Court was whether the Chief Executive was prevented by issue estoppel from raising Mr Arbuthnot’s relationship status before the Authority. The Supreme Court held that the BRC was not a judicial tribunal and thus the doctrine of issue estoppel did not apply to its findings. But Blanchard J, given the judgment of the Court, noted that even if the doctrine did apply to the BRC, it would have been inappropriate and unfair to apply it in the context of a finding that had been made against the Chief Executive from which he had no right of appeal. With reference to Joseph Lynch Land Co Ltd v Lynch, his Honour, stated:56
An over-rigorous application of the issue estoppel doctrine to the circumstances where there was no right of appeal, or where, as in Lynch, it was not reasonable to expect any such right to be exercised in practice, would indeed produce unfairness disproportionate to the object of achieving finality in litigation.
[103] While these observations were made in the context of issue estoppel, in my view, they apply equally to abuse of process. Both doctrines have the same outcome of precluding parties from bringing or continuing certain claims or aspects of claims, and both have an object of achieving finality in litigation. A court or tribunal should therefore be cautious to effectively “strike out” claims or proceedings for abuse of process where the earlier finding or determination was not one from which the relevant party could appeal. That is even more so when the earlier finding or determination was not a final and binding determination in any event.
[104] The position is reinforced when there are other less draconian steps that can be taken to avoid any unfairness or bringing the administration of justice into disrepute. In this case, Foodstuffs accepts, and it must be right, that in a second round appeal, the Authority does not ignore what has gone before. The Authority recognised this in its August Decision, and it was also a matter reflected in the Justice and Electoral Committee’s report on the Alcohol Reform Bill as set out at [25] above. As such, the Authority will not be starting “from scratch” in its consideration of the 9 pm aspect of the maximum trading hours element in the second round appeal. Its consideration of the matters before it on appeal will take into account its consideration of those matters in the first round appeal. It will presumably only wish to place any
56 At [29], referring to Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37.
real weight or reliance on evidence and/or submissions which are new or fresh. Further, Foodstuffs accepts that in exercising its discretion under s 203(9) of the Act, the Authority would be entitled to rule inadmissible any evidence Foodstuffs (or any other appellant) seeks to adduce which is truly repetitive of evidence adduced on the first round appeal.57
[105] Foodstuffs also says the Authority’s decision wrongly excludes it from producing evidence in the second round appeal that was not available at the time of the first round appeal and/or represents an updated position to that considered on the first round appeal.
[106] The Authority accepts that the matters which it takes into account when considering a P-LAP are dynamic and evolve.58 It also notes that by definition, whenever there is a time gap between a decision of the Authority and the resubmission of a P-LAP (and thus a second round appeal), more evidence will likely be available.59 It says, however, that in such a case:
…to allow further evidence on matters already decided before a P-LAP is brought into force will result in a situation where the benefit of the Authority’s decision on the initial appeals becomes increasingly unobtainable.
[Emphasis added]
[107] A similar point was considered by Wylie J in Guardians of Paku Bay Association Inc v Waikato Regional Council, albeit again in the context of issue estoppel (and whether it applied in the resource management context).60 But the substance of the concern remains. The Judge posed a rhetorical question illustrating the dilemma of the doctrine applying in the resource management context:61
The applicant argues that the environment has changed and that landscape values have been undermined by the grant of other applications. Is he
57 At the hearing, I inquired with counsel whether another mechanism for the Authority might be to award costs against parties unnecessarily advancing repetitive evidence and/or submissions, as noted in Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271 at [61](g). In supplementary materials filed on 11 April 2019, the parties jointly confirmed that the Authority has the power to award costs, but the quantum is limited to $600, as a result of the Authority being treated as a Commission of Inquiry, and the operation of the various statutes governing such Commissions.
58 August Decision, above n 21, at [132].
59 At [135].
60 Guardians of Paku Bay Association Inc v Waikato Regional Council, above n 57.61 At [62](a).
precluded from arguing that point as a consequence of the Environment Court’s earlier decision?
[108] Wylie J answered his own rhetorical question by stating “common sense suggest that the answer must be no, and that issue estoppel does not apply”.62
[109] In this case, the position is arguably more stark, as contrary to the manner in which the Authority has characterised its July 2017 decision, there was no “final decision” by it on the 9 pm aspect of the maximum trading hours element. As explained earlier, the only decision made was that cl 4.3.1 was unreasonable. In my view, it would be wrong to prevent a party from adducing any evidence, or making any submissions, on a matter properly before the Authority and which may be influenced by dynamic factors and evidence, on the basis of earlier observations or views which do not themselves amount to final and binding determinations.
[110] Ultimately, I accept Foodstuffs’ submission that if the Authority’s orders are allowed to stand, Foodstuffs (and other appellants) lose the benefit of the Authority’s positive decision that all of cl 4.3.1 is unreasonable. Yet, despite the Authority having erred in concluding that Foodstuffs’ approach is an abuse of process, the Council does not “lose the benefit” of the Authority’s direction or views from the first round appeal about the closing hours aspect of the element. As noted, in the second round appeal, the Authority will effectively start from the point it reached at the conclusion of the first round appeal. In that context, I do not consider it would be an abuse of process for Foodstuffs to address what it says has changed in relation to the 9 pm aspect of the element under appeal.
[111] Of course, and I reiterate, that within the boundaries of an appeal on cl 4.3.1 as a whole, the Authority is entitled to and will no doubt wish to control the second round appeal to avoid improper and unnecessary repetition. That is what may be required to prevent an abuse of process, rather than the broader approach adopted in the August Decision. In this context, once it is appraised of the actual evidence Foodstuffs wishes to adduce on the second round appeal, it may well be that some is ruled inadmissible as simply repeating what has gone before.
62 At [63].
Result
[112] Foodstuffs’ appeal is accordingly allowed. The Authority’s August and September Decisions (to the effect they conclude that it would be an abuse of process for Foodstuffs to present any evidence or make any submissions on the 9 pm aspect of the element under appeal before the Authority, save in those circumstances identified in the proviso to order (b) at [13] of the September Decision)63 are reversed.64
[113] I do not consider it necessary or appropriate to make any further orders or declarations.
Costs
[114] On the materials presently before the Court, there would appear to be no reason why costs should not follow the event in the ordinary way. Scale costs on a 2B basis would seem appropriate.
[115] I would encourage the parties to agree costs. If costs cannot be agreed, Foodstuffs is to file and serve a costs memorandum within 15 working days of the date of this judgment. The Council may file and serve a memorandum in response within a further five working days. No memorandum is to exceed five pages in length. I will thereafter determine costs on the papers.
Fitzgerald J
63 See [49] above.
64 Sale and Supply of Alcohol Act 2012, s 161(7).
2