G & H Randhawa Limited (the 'Pap House') v Tauranga District Licensing Committee
[2023] NZHC 2579
•15 September 2023
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2022-470-140
[2023] NZHC 2579
BETWEEN G & H RANDHAWA LIMITED (the ‘PAP HOUSE’)
Plaintiff
AND
TAURANGA DISTRICT LICENSING COMMITTEE
First Defendant
AND
TAURANGA CITY COUNCIL
Second Defendant
Hearing: 9 August 2023 Appearances:
D W Pawson and E R Doyle for Plaintiff
K E Cornege and M S Crocket for First Defendant S P Farnell for Second Defendant
Judgment:
15 September 2023
JUDGMENT OF JOHNSTONE J
This judgment was delivered by me on 15 September 2023 at 2pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Tompkins Wake, Hamilton Rice Speir, Auckland
RANDHAWA LTD v TAURANGA DISTRICT LICENSING COMMITTEE [2023] NZHC 2579 [15 September 2023]
[1] In this proceeding, the plaintiff (the Pap House), an operator of licensed premises trading under that name at Papamoa Beach, seeks judicial review of decision-making of the first defendant, the Tauranga District Licensing Committee (TDLC).
Background
[2] In February 2022, the Pap House’s on-licence expired. In July 2022, the TDLC declined its application for a new on-licence (the First Decision).1 At the same time, the TDLC declined an associated application for a manager’s certificate. This application had been made by Sohan (Bobby) Singh, the son in law of the Pap House’s directors. Mr Singh had been the manager of the Pap House while its previous on-licence was current. The TDLC found both the Pap House and Mr Singh to be unsuitable as licence holders.
[3] Immediately, the Pap House appealed against the TDLC’s First Decision, to the Alcohol Regulatory and Licensing Authority (ARLA). In September 2022, it also pursued a fresh application, on this occasion naming Mr Singh’s wife, Sharnjit (Sharon) Kaur, as its contact person (the September Application).
[4] Ms Kaur had in the meantime become a third director of the Pap House. The September Application was accompanied by an undertaking that Mr Singh would not be involved with the operation and management of the Pap House. The undertaking was offered “without prejudice to [the] appeal”.
[5] On 19 September 2022, the TDLC corresponded with the agent who had been working for the Pap House in connection with its licensing applications, suggesting various amendments to the operating conditions forming the basis for the fresh application. It added that “[w]e require an indication that if a new On Licence is granted on the papers now then the appeal currently before ARLA would be withdrawn.”
1 Decision 21/ON/80004566/2022.
[6] The Pap House’s agent responded that day, agreeing to the various amended working conditions and providing the required indication that the appeal of the First Decision would be withdrawn. Later, on 19 September 2022, the TDLC issued a written decision (the Second Decision) granting the September Application, and directing the issue of a 12-month on-licence.
[7] The Second Decision recorded that “within 5 days of the date of issuance the applicant shall submit evidence to the DLC that it has formally abandoned its appeal before ARLA on the July hearing decision”. By memorandum of its counsel, David Pawson, dated 20 September 2022, filed with the ARLA, the Pap House withdrew its appeal against the First Decision, Mr Pawson making plain that it did so “under duress and against legal advice”.
[8] Mr Singh appealed to the ARLA against the TDLC’s July 2022 decision to decline his manager’s licence. On 2 August 2023, the ARLA declined Mr Singh’s appeal.2
Nature of review sought
[9] In November 2022, the Pap House filed a statement of claim, supported by affidavits of Mr Singh and Ms Kaur, seeking five forms of relief by way of judicial review. I now describe these five forms of relief and the essential basis on which they were sought, adding my own labels for the sake of clarity.
Refusal to exclude witnesses vitiating First Decision
[10] The First Decision was issued after a hearing at which New Zealand Police as objector called three witnesses, who described unsatisfactory behaviour on the part of Mr Singh. Prior to that evidence being called, the Pap House sought an order excluding witnesses other than the witness being examined. The TDLC refused that order, and proceeded to take the evidence of each witness with the others present in the hearing room.
2 Singh v New Zealand Police [2023] NZARLA 131.
[11] The Pap House seeks a declaration that the First Decision is unsafe due to procedural failures, and an order quashing or setting it aside.
Request for ruling on Sheard
[12] The First Decision was informed by the TDLC’s view, having taken the evidence of the three witnesses, that Mr Singh and therefore (given his role as manager) the Pap House were unsuitable as licence holders. In reaching that view, the TDLC referred to this Court’s judgment in Re Sheard, where Holland J observed:3
The real test is whether the character of the applicant has been shown to be such that he is not likely to carry out properly the responsibilities that go with the holding of a licence.
[13] However, the TDLC then said “some 27 years on from that judgment and a new Act we say the assessment is now much wider …”.
[14] The Pap House seeks a ruling on whether “the real test for suitability” in terms of s 105(1)(b) of the Sale and Supply of Alcohol Act 2012 (the Act) remains as set out in Sheard.
Required and therefore ineffective withdrawal of appeal against First Decision
[15] The Pap House asserts that the TDLC’s requirement of an indication, that the appeal against the First Decision would be withdrawn if the fresh application (excluding Mr Singh) were granted on the papers, amounted to an abuse of power. It seeks relief in the nature of certiorari or declaration, that the Pap House’s withdrawal of its appeal against the First Decision was made under duress and/or as a consequence of an improper exercise of a statutory power. In essence, an order confirming that its purported withdrawal of its appeal was ineffective.
Variation of issued on-licence
[16] As mentioned above, the TDLC’s correspondence with the Pap House’s agent of September 2022 suggested various amendments to the operating conditions forming the basis for the Second Application. These included that:
3 Re Sheard [1996] 1 NZLR 751 (HC) 758.
(a)the on-licence being sought be amended to that of a Class 2 Restaurant, rather than a Tavern;
(b)another former manager (that is, other than Mr Singh) not be employed as such; and
(c)opening hours and occasions offering live music be reduced.
[17] The Pap House submits these amendments were unreasonably sought and were accepted under duress. Its statement of claim sought an order varying the on-licence issued pursuant to the Second Decision, in effect reversing the amendments made to its Second Application.
Indemnity and/or increased costs
[18]The Pap House further seeks indemnity and/or increased costs.
Joinder of the Council as defendant
[19] When filed, the Pap House’s proceeding named only the TDLC as defendant. By application dated 31 January 2023, the Tauranga City Council (the Council) applied for orders that it be joined to the proceeding, or alternatively granted leave to intervene and be heard. The Council’s application observed that the Council had appointed the TDLC in accordance with s 186 of the Act. The Council submitted that its intervention was desirable because:
(a)given the ordinary position in judicial review that the decision-maker abides the decision of the reviewing court, the Court would then “have the benefit of a party that is not abiding” its decision; and
(b)the Council wished to be heard on matters of jurisdiction and procedure, and “additionally on matters such as the Council’s role vis-à-vis [TDLC], and its expectation of committee members when hearing applications under the Act”.
[20] For its part, the TDLC indicated by memorandum dated 2 February 2023 that it wished to be heard in the proceeding, but did not propose to take an active role in defending its decision, and would abide the Court’s decision.4 The TDLC submitted that it could provide assistance to the Court, in particular on factual matters. It therefore sought leave to file an affidavit identifying and commenting on any disputed factual matters, and to be represented at the hearing.
[21] Observing the absence of opposition and “the fact that the [TDLC] will not be defending its decisions” Wylie J considered it appropriate to join the Council to the proceeding as a second defendant, and did so by minute dated 2 February 2023. At that time, Wylie J timetabled the filing of further pleadings, of affidavits, and a fixture to take place on 6 March 2023.
[22] On 1 March 2023, the 6 March fixture was rescheduled to take place on 9 August 2023, due to scheduling difficulties within this Court at Tauranga.
Submissions for the Council
[23] Having achieved joinder as a second defendant, the Council offered written submissions disclosing that its stance was that the Court should grant the Pap House relief, at least in part.
[24] While observing that it did not agree with all of the TDLC’s alleged failures, the Council “accept[ed] that procedural failure has occurred, and the ordinary principle that a remedy ought to follow when a decision-maker has erred in the exercise of a statutory decision should apply”. The Council referred in particular to the TDLC’s refusal to make an order excluding witnesses during the hearing leading to the First Decision, and “question[ed] whether it was appropriate for the [TDLC] to have sought the information or conditions it did” in respect of the September Application.
[25] Overall, while noting the potential for the privative clause set out in s 167 of the Act to operate as a bar to relief (see further below), it submitted that the most
4 In doing so, it cited the approach taken by the Real Estate Agents Authority in Edwards v Hughes
[2019] NZHC 2286, [2019] NZAR 1817.
practicable resolution of the proceeding would involve an “order/direction that a newly constituted [licensing committee] hear” the Pap House’s first application afresh.
[26] Thus, while Wylie J was offered the “benefit of a party that is not abiding the decision of the Court”, it transpired that joinder of the Council had the substantive effect of adding a voice in favour of the Pap House’s application.
[27] The question arises whether the Council’s participation was necessary. In that regard, the Council sought guidance “for precedent purposes”, submitting that in judicial review proceedings relating to licencing decisions:
(a)Licensing committees should do more than abide the Court’s decision.
(b)In appropriate cases, it is for the territorial authority (here, the Council) to assist the Court on questions of legislative interpretation, jurisdiction and provision of the record of decisions and other materials.
(c)The territorial authority is appropriately named as the defendant, because:
(i)The territorial authority appoints, administers and manages the licensing committee. The licensing committee, the members of which are subject to change, is a committee of its territorial authority.5 Should a costs award be made against the licensing committee, this will be paid by the territorial authority.
(ii)The licensing committee is functus officio.
(iii)The relationship between territorial authority and licensing committee is similar to that between professional regulatory bodies and disciplinary decision-makers, where the regulatory
5 Sale and Supply of Alcohol Act, s 200(1).
body is named to “defend” the decision-maker (except that on occasion, concessions can and should be made).6
Submissions for the TDLC
[28] On the question of its role in this proceeding, the TDLC accepted the general principle that, on judicial review, the decision-maker should not become a protagonist but should abide the Court’s decision.7 However, it submitted, citing the Court of Appeal’s judgment in Goodman Fielder Ltd v Commerce Commission, that there is an exception “where considerations of public interest and the effective administration of an Act arise”. 8 The TDLC noted that this exception commonly arises in relation to local authorities’ consenting role under the Resource Management Act 1991.9 The TDLC submitted that in light of the Council’s position announced following its joinder, of supporting the Pap House’s application (albeit on fewer grounds), the Council’s involvement was “most irregular”.
[29]On the substance of the proceeding, the TDLC submitted that:
(a)The privative clause set out in s 167 of the Act requires consideration. As an “exhaustion of remedies” clause, its effect is that until the relevant remedies are exhausted (here, said to be appeals against the TDLC’s decisions), this Court is not competent to hear proceedings by way of judicial review.10
(b)As the Pap House may yet obtain reinstatement of its appeal against the First Decision and leave to appeal the Second Decision out of time, s 167 deprives this Court of jurisdiction to entertain the proceeding.
(c)If the Court has jurisdiction despite s 167, its power to grant relief
6 Citing Zhao v Legal Complaints Review Officer [2017] NZHC 1561, [2017] NZAR 1760 at [9(a)]; and Edwards v Bridge, above n 4, at [35]–[39].
7 Secretary for Internal Affairs v Pub Charity [2013] NZCA 627, [2014] NZAR 177 at [27]; and
New Zealand Engineering Union v Court of Arbitration [1976] 2 NZLR 283 (CA) at 284.
8 Goodman Fielder Ltd v Commerce Commission [1987] 2 NZLR 10 (CA) at 20.
9 See, for example, Frost v Queenstown Lakes District Council [2021] NZHC 1474; and
Fraser v Central Hawkes Bay District Council [2021] NZHC 2981, [2022] NZRMA 90.
10 Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington, 2018) at [2.68].
would extend to restoration of the Pap House’s appeal to the ARLA, or to requiring the ARLA to grant leave out of time to appeal.
(d)In any event, the Court should take account of the determination by the ARLA of Mr Singh’s appeal:
(i)In dismissing Mr Singh’s appeal, the ARLA sought to clarify the relationship between the decisions in Re Sheard, Nikita and Two Brothers11 by observing that it does not consider those decisions to be in conflict, “[r]ather they are examples of the type of issues that can be considered under the broad test for suitability.”12
(ii)More substantively, the ARLA found, in relation to Mr Singh, that:13
… The evidence of [the] three police witnesses in particular, established that the appellant’s behaviour was irresponsible and inappropriate. In fact, we go further. Even if the evidence were as the appellant accepts it was, his conduct in relation to witness A in particular was in our view irresponsible and inappropriate. … The other two situations, again on an acknowledged basis, suggest an uncomfortable blurring of the lines between host and licence responsibilities and socialising with customers.
(e)And in light of the “narrow [and] exceptional”14 nature of the discretion to grant remedies in judicial review, the Court should consider the potential mootness of the proceeding given the forthcoming expiry of the Pap House’s 12-month licence granted on 19 September 2022 and the likelihood of an application for renewal requiring fresh consideration of licensing conditions.
11 Two Brothers Wholesale Ltd v Medical Officer of Health [2021] NZARLA 32.
12 Singh v New Zealand Police, above n 2, at [58].
13 At [73(b)].
14 Director of Maritime New Zealand v Survey Nelson Ltd [2011] NZSC 61.
Issues for determination
[30] The following issues arise, set out in the order in which I intend to determine them:
(a)How should the privative clause set out in s 167 of the Act be applied in this case?
(b)In light of the proper application of s 167, should this Court intervene in respect of:
(i)the TDLC’s refusal to exclude witnesses from the hearing leading to the First Decision?
(ii)the TDLC’s interpretation of the test for suitability, appearing to prefer a broader assessment than might be derived from Re Sheard?
(iii)the withdrawal of the Pap House’s appeal against the First Decision?
(iv)the substance of the on-licence granted pursuant to the amended September Application?
(c)What guidance, if any, should this Court offer on the joinder of territorial authorities as defendants to proceedings seeking judicial review of licensing committees’ conduct?
(d)What costs consequences follow?
Application of privative clause
[31]Under s 167 of the Act:
No review until right of appeal exercised
No person who has a right of appeal against any decision of the licensing authority or of a licensing committee is entitled to do any of the following unless and until that party exercises that right of appeal and the appeal is finally determined:
(a)to make an application for review of that decision under the Judicial Review Procedure Act 2016; or
(b)to institute proceedings seeking any writ or order of, or in the nature of, mandamus, prohibition, or certiorari, or a declaration or injunction, in respect of that decision.
[32] I accept the TDLC’s submission that s 167 is an “exhaustion of remedies” clause. However, such clauses do not necessarily require that all conceivable avenues of appeal be exhausted before the High Court becomes competent to intervene. As observed by the Supreme Court in H (SC 52/2018) v Refugee Protection Officer:15
[63] Given the constitutional importance of judicial review, reinforced as it is by s 27(2) of the [New Zealand Bill of Rights Act 1990], the courts approach privative clauses cautiously and in particular will give anxious consideration to their interpretation and application. As noted in the reasons of the majority in Tannadyce Investments Ltd v Commissioner of Inland Revenue, judges should be slow to conclude that an ouster provision precludes applications to the High Court of any kind.
[33]In respect of the privative clause relevant to that case, the Court found: 16
… What is required is a construction of [the provision] that recognises Parliament’s intention to prevent duplicative proceedings but also preserves the ability of the Court to supervise the exercise of public power and prevent injustice occurring when a statutory process fails because the decision-maker acts unlawfully and an injustice results.
[64] In the present case, the error made by the Refugee and Protection Officer in concluding that the appellant had failed to attend the interview, when the evidence available to him showed the appellant was unable to attend, led to the statutory process derailing.
15 H (SC 52/2018) v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433 at [63] (footnote omitted).
16 At [63].
[34] The notion of a statutory process “derailing” provides a useful test, to be applied in determining whether an exhaustion of remedies privative clause such as is set out in s 167 deprives this Court of jurisdiction to intervene.
Refusal to exclude witnesses vitiating First Decision
Submissions for the Pap House and the Council
[35] The Pap House’s written submissions were set out in an unusually discursive form in its statement of claim.17 Marshalling the submissions on this point as best one can, they are that:
(a)an order excluding witnesses is a “basic fundamental procedural matter when challenging any evidence in any court or tribunal in New Zealand, particularly where the evidence is of the sort of nature that it was in this case”;
(b)the refusal was particularly unusual because the TDLC granted an application that the hearing be held in private due to the nature of the complaints;
(c)the police did not oppose the order;
(d)the “prosecution” witnesses adapted to their evidence having heard evidence given and cross-examined;
(e)this breach of “natural justice” was such that the Pap House was left at a complete disadvantage.
Licensing committee’s powers to control process
[36] Licensing committees’ functions are broad. They are set out in s 187 of the Act, and include the function of considering and determining applications for on-licences.
17 G & H Randhawa Ltd v Tauranga District Licensing Committee HC Tauranga CIV-2022-470-140, 29 November 2022.
[37] Licensing committees are provided with powers referable to those functions. Under s 188 of the Act:
A licensing committee has all the powers conferred on it by or under this Act or any other Act, and all powers as may be reasonably necessary to enable it to carry out its functions.
[38] These broad powers are supplemented, and arguably refined, under provisions relating to the convening of hearings, set out in ss 201 to 211A of the Act. Section 201 provides for licencing committees to have the powers of Commissions of Inquiry under the Commissions of Inquiry Act 1908. Section 203(3) provides for licensing committees to hold part of any sitting in private if, having regard to the interests of persons appearing and being heard and to the public interest, it thinks it proper to do so.
[39] The Court of Appeal has confirmed that s 27 applies to entities like the TDLC. In Combined Beneficiaries Union Inc v Auckland City COGS Committee, the Court confirmed that “tribunal or other public authority” is not limited to bodies exercising an adjudicative function in relation to “rights, obligations or interests protected or recognised by law”.18 Nor should “tribunal or other public authority” be read as conceptually linked.19 Further, s 27(1) should not be interpreted as being limited to “dealing only with actual rights, obligation or interests”, it being sufficient that “applicants… have the right to make an application and, having made a valid application, to have that application considered” for s 27 to be engaged.20
[40]Relevantly, under s 27(1) of the New Zealand Bill of Rights Act 1990:
Right to justice
(1)Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.
…
18 Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56 at [5] and [13].
19 At [13]–[15].
20 At [17].
[41] The nature of the right to natural justice varies depending on the circumstances. As observed in Joseph on Constitutional and Administrative Law:21
Natural justice is but fairness writ large and juridically’.22 The duty to act fairly (or simply “fairness”) may substitute as a reference for natural justice.23 They are alternate descriptions for a single but flexible concept whose content is “always contextual”.24 The requirements vary according to the power that is exercised and the circumstances of its use, including the effect of the decision on personal rights or interests.25 A decision may be allowed to stand where a breach of natural justice has little or no effect on the applicant’s substantive rights.26 The requirements of natural justice are “flexible”,27 “adaptable”,28 and “context specific”,29 and cannot be neatly tabulated. “This is an area of broad principle, not precise rules.”30 Prescribing prescriptive rules of universal application would introduce “a new formulism” – a “recipe for judicialisation on an unprecedented scale”.31
Analysis
[42] The submissions for the Pap House and the Council are based on the proposition that, in proceeding to conduct the hearing leading to the First Decision without making the requested order excluding witnesses, the TDLC breached the Pap House’s entitlement to natural justice. However, this presupposes that by dint of the refusal to exclude witnesses the hearing became unfair. In my view, given the
21 Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at [25.1].
22 Furnell v Whangarei High School Board [1973] 2 NZLR 705 (PC) at 718, quoted with approval in Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141.
23 See Daganayasi v Minister of Immigration, above n 22, at 141 per Cooke J citing English authorities.
24 Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [120].
25 Birss v Secretary for Justice [1984] 1 NZLR 513 (CA) at 516, Waitemata Health v Attorney-General [2001] 2 NZLR 652 (CA) at [96]; Dorbu v Lawyers and Conveyancers Disciplinary Tribunal HC Auckland CIV-2009-404-7381, 11 May 2011 at [48]; Q v Attorney-General [2011] NZAR 625 (HC) at [4]; and Lyttleton v Police [2016] NZHC 22, [2016] NZAR 493 at [35].
26 Hirstich v Family Court at Manukau [2014] NZCA 305, [2015] NZFLR 317 at [32]; and W v Family Court at North Shore [2014] NZHC 2483 at [33].
27 Webster v Auckland Harbour Board [1987] 2 NZLR 129 (CA) at 132; Birss v Secretary for Justice [1984] 1 NZLR 513 (CA) at 516; Bennett v Superintendent Rimutaka Prison [2001] 3 NZLR 803 (HC) at [63]; and Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [67].
28 Bradley v Attorney-General [1988] 2 NZLR 454 (HC) at 478; and Drew v Attorney-General, above n 27, at [67].
29 Carroll v Coroner’s Court at Auckland [2013] NZHC 906, [2013] NZAR 650 at [35].
30 Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA) at 16. See also Fraser v State Services Commission [1984] 1 NZLR 116 (CA) at 124; and Isaac v Minister of Consumer Affairs [1990] 2 NZLR 606 (HC) at 630 (counselling against “hard and fast rules”).
31 R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100 at [31], quoting Thomas Poole “Of headscarves and heresies: The Denbigh High School case and public authority decision making under the Human Rights Act” [2005] PL 685 at 691, 695, followed in Bovaird v J [2008] NZCA 385, [2008] NZAR 667 at [53].
“context specific” nature of the requirement of natural justice under s 27(1) of the New Zealand Bill of Rights Act, it is necessary to consider the effect of the TDLC declining to exclude witnesses on the evidence that was given.
[43] For the Pap House, Mr Pawson submitted that once the first Police witness’ evidence was given and cross-examined in the presence of the second and third witnesses, it was then pointless to explore the prospect of collusion with any of them. Mr Pawson submitted that it was “known” that there had been collusion. He relied in this regard, however, only on evidence emerging during the hearing that the witnesses knew each other. He submitted that it would have been pointless asking if they had discussed it. However, this assumes that the witnesses, had they discussed their evidence as between themselves, would be untruthful. There is nothing to suggest that, nor indeed that they had in fact discussed their complaints as between themselves. In summary, it was submitted for the Pap House that its position was compromised because the witnesses could hear each other’s evidence, but the evidence that was given does not confirm the point.
[44] In light of this point, I do not consider it can be said the statutory process “derailed”, such that s 167 does not operate as a bar to this ground of review. This is because:
(a)The Act provides for appeals against licensing committees’ decisions to be conducted by way of rehearing.32 Where such appeals are on questions of fact, copies of notes of evidence given orally before the licensing committee are brought before the ARLA.33 But that course is subject to the ARLA’s discretion to rehear the evidence of witnesses if there is reason to believe the notes are incomplete.34
(b)In this case, therefore, the ARLA might have been invited on appeal to order the re-taking of the three witnesses’ evidence; particularly if a
32 Section 157(1).
33 Section 157(2).
34 Section 157(3).
proper evidential basis for suggesting collusion between them could be made out.
(c)In the absence of an evidential basis for collusion, such that the Pap House is left with its argument of per se unfairness arising from the simple failure to exclude witnesses and the prospect of successive witnesses’ evidence spontaneously being influenced by what the previous witnesses had heard, the statutory right to rehearing by the ARLA goes as far to achieve redress as any remedy that might reasonably be contemplated in this Court.
[45] This is not to say that it would not clearly have been desirable for the TDLC to have excluded witnesses from hearing the evidence of others, particularly since it had been persuaded that it was appropriate the hearing should be conducted in private. The fact that it transpired the witnesses to the conduct of Mr Singh were known to each other neatly illustrates that the TDLC’s refusal to exclude witnesses risks (at least) the hearing becoming unfair.
[46] On this basis, judicial review proceedings are prohibited by s 167 in respect of this ground for relief.
Ruling on Sheard
Submissions for the Pap House
[47] The Pap House submitted that in describing the appropriate assessment in respect of applicant suitability as “now much wider” than as outlined in Re Sheard,35 the TDLC may have made an error of law. It sought “clarification” whether Sheard is still good law.
Analysis
[48] In light of s 167 and the above discussion as to its effect, I do not consider it appropriate to seek to resolve the question the Pap House wishes to raise. The legal
35 Re Sheard, above n 3.
issue of applicants’ suitability in terms of s 105(1)(b) of the Act would require consideration following wide-ranging review of the Act’s purposes and principles, informed to the extent possible by matters of context that are apt to arise following appeal through the regular specialist channel of the ARLA.
[49] Indeed, of relevance to this case, the question of Mr Singh’s suitability has been addressed in the course of his own appeal against the TDLC’s judgment. In the event the ARLA is said to have erred in formulating and applying the appropriate test for suitability, Mr Singh will have a remedy by way of appeal to this Court on a question of law under s 167 of the Act. On such an appeal, the Court will have the benefit of the ARLA’s assessment of the evidence and its observations of practice in this specialist area to inform its decision-making.
[50] In the circumstances I decline to exercise this Court’s discretion to issue a declaration on the point of law in the course of this proceeding.
Ineffective withdrawal of appeal against First Decision
Submissions for the Pap House
[51] The Pap House submitted that it was entitled to appeal against the TDLC’s first decision, under s 157 of the Act. It did so, within the limitation period of 10 working days set out in s 155. It had an array of grounds. However, the TDLC’s requirement that the appeal be withdrawn as a condition of consideration of the September Application on the papers amounted to an inducement of the Pap House under duress to forego its appeal right.
Submissions for the TDLC
[52] The TDLC submitted that it would be open to this Court “to conclude that there was no procedural impropriety when the [TDLC] enquired as to whether the plaintiff would be withdrawing its appeal to the [ARLA] as one of a suite of conditions based on which the [TDLC] was prepared to consider granting an on-licence for a class one restaurant”. The TDLC submitted that the Pap House was free to instead pursue its appeal against the First Decision.
Analysis
[53] In my view, the TDLC went further than to enquire whether the Pap House would be withdrawing its appeal against its First Decision. Its mention of the appeal, made in the course of correspondence regarding the September Application, was in stark terms: “[w]e require an indication that if a new On Licence is granted on the papers now then the appeal currently before ARLA would be withdrawn.”
[54] Withdrawal of the appeal was expressly made a condition of the September Application being granted “on the papers”.
[55] The TDLC’s discretion to consider the September Application “on the papers” arose under s 202(1) of the Act, which provides as follows:
If no objection to an application is filed within the prescribed time, the licensing authority or licensing committee concerned may either grant the application on the papers or convene a public hearing to consider the application.
[56] However, the discretion to consider an application on the papers requires to be exercised consistently with the committee’s functions under the Act. These functions do not extend to determining appeals against the committee’s own decisions. Whether an appeal is or is not outstanding should, in my view, form no part of the exercise of the discretion in relation to a subsequent application.
[57] It should be noted that by this point, the Pap House had been without its prior on-licence for around seven months. Had the Pap House applied to renew its prior on-licence, rather than leave it to expire in February 2022, it would have had the benefit of ss 122, 135 and conceivably 152 of the Act, which would have continued the licence until at least three months after any licencing committee decision to decline renewal. But in the absence of a current on-licence, the evidence filed for the Pap House to the effect that it was faced with a fait accompli is easily accepted. Its decision to withdraw the appeal was made a matter of practical necessity. It should not have been required to do so.
[58] In my view, the statutory process “derailed” when the TDLC required the appeal be withdrawn. The question arises, what is the appropriate remedy?
[59] On this point, I am not persuaded it is appropriate to declare as requested that the Pap House’s directors acted under duress when purporting to withdraw its appeal against the TDLC’s First Decision. Further, I observe that at the hearing of this proceeding on 9 August 2023, it appeared that matters may have moved on since the filing of the Pap House’s statement of claim. I refer in particular, to the ARLA’s refusal of Mr Singh’s appeal. In light of that outcome, the Pap House may no longer wish to pursue its own appeal.
[60] Nevertheless, I consider it likely that a declaration by this Court, that the TDLC acted in excess of its powers when requiring the Pap House to withdraw its appeal, will be capable of being called in aid of an application by the Pap House to reinstate its appeal, should it decide that that course is desirable. Therefore, that remedy would adequately vitiate the Pap House’s entitlement to appeal, without requiring the Pap House to do so (or the ARLA to determine an appeal that is not desired).
Variation of issued on-licence
Submissions for the Pap House
[61] Reasons for what would in effect be an order varying the on-licence issued pursuant to the Second Application, so as to approve that application in the form in which it was originally made, are difficult to discern. The essence, as outlined above, is that the TDLC acted unreasonably in suggesting the September Application be amended so that it might be granted on the papers.
Analysis
[62] I accept that other aspects of the TDLC’s correspondence with the Pap House over its September Application, going beyond the correspondence requiring it to withdraw its appeal, are questionable. I refer in particular to questions it put to the Pap House’s directors, Mr Singh’s wife and parents in law, whether they accepted the improper behaviours alleged by the three witnesses called by police during the hearing leading to the First Decision. In the context of the fresh application comprised of the Second Application, where it was proposed that Mr Singh would not be involved in
the Pap House’s management, and of the appeal against the First Decision, the questions at least risked distracting the TDLC with consideration of peripheral issues.
[63] However, the amendments to the September Application (set out at [16] above) were all at least notionally connected to the appropriate sale of alcohol under the on-licence being sought. It is by no means clear they were so unreasonably sought that it might be suggested the statutory process has “derailed”.
[64] To the extent the Pap House wishes to contest these conditions, it should now do so in the course of its application for renewal of the licence expiring on 19 September 2023, or by way of fresh, parallel application.
Joinder of territorial authority as defendant in judicial review proceedings
[65]The submissions of the Council and the TDLC are set out above.
[66] The Council drew in aid the similarity of the relationship, on the one hand between it as territorial authority and the TDLC as one of its appointed committees, and on the other between professional regulatory bodies and disciplinary decision-makers. Citing Zhao v Legal Complaints Review Officer36 and Edwards v Bridge,37 it submitted that in the case of regulatory appeals and judicial review, the regulatory body is named to “defend” the decision-maker. The Council’s submissions placed the word “defend” in quotation marks, indicating that it considered being named as a defendant was appropriate, whether or not it intended truly to defend the proceeding.
[67] But as Palmer J made clear in Shand v Legal Complaints Review Officer,38 having cited Zhao, the primary reason for regulatory bodies on occasion being permitted to take an active part in proceedings on appeal or review is not because of the particular body’s organisational connection to the decision-maker. It is instead to ensure that the adversarial system does not lose balance, and that the Court does not lose assistance with one side of an issue, in the absence of a contradictor.
36 Zhao v Legal Complaints Review Officer, above n 6, at [9(a)].
37 Edwards v Bridge, above n 4, [35]–[39].
38 Shand v Legal Complaints Review Officer [2019] NZHC 3105 at [13]–[14].
Justice Palmer observed that in that situation generally the Court can, and often would, appoint counsel to assist it. In the context of lawyers’ disciplinary cases, such as that before him, the Judge observed that the willingness of the New Zealand Law Society to assist a court by acting as contradictor involves an extension of its function of assisting to administer that system.
[68] Further, the judgment of Doogue J in Edwards v Bridge does not assist the Council’s argument. There, the Judge permitted the Real Estate Agents Authority (REAA) to remain as a party to an appeal and cross-appeal involving an agent and her former client, where one of the REAA’s disciplinary committees had made an initial decision which was appealed to the Real Estate Agents Disciplinary Tribunal. The REAA (not its committee) had been named as a party to the first appeal. Justice Doogue observed that the REAA’s intention was to abide, its submissions were not partisan, it had been named before the Tribunal, and its submissions in particular on an issue having a direct impact on its disciplinary powers would likely better enable the Court to come to a fully informed decision. Justice Doogue noted also (the relevant committee not having been named as a party) that if the relevant regulatory body were not named, the Court could not direct relief such that the decision-making body was required to comply.
[69] Together, Zhao and Edwards do not in my view suggest a preference for disciplinary bodies to be joined to appeals or judicial review proceedings because of any requirement that appointed decision-makers strictly abide. Instead, the broader principle that emerges is that parties are appropriately joined where their participation will support the just determination of the proceeding, because they will either act appropriately as a contradictor (as in Shand) or offer a broader perspective not otherwise available to the Court (as in Edwards).
[70] In this regard, I consider the TDLC was correct to note the exception to the general principle that, on appeal or review, the decision-maker should not become a protagonist but should abide the Court’s decision,39 applying where there is no other party available to advance considerations of public interest and the effective
39 Secretary for Internal Affairs v Pub Charity [2013] NZCA 627 at [27]; New Zealand Engineering Union v Court of Arbitration [1976] 2 NZLR 283, 284 (CA).
administration of an Act.40 I further note that I was assisted by the TDLC’s submissions on the existence and application of s 167, and of the ARLA’s decision to dismiss Mr Singh’s appeal, consistently with this principle.
[71] In this case, I did not hear full argument on the functions and respective responsibilities under the Act of the Council as a territorial authority, and the TDLC as one of its appointed licensing committees. I note that the Act provides that territorial authorities appoint licensing committees,41 and establish and maintain lists of licensing committee members,42 and that every licensing committee is a committee of its territorial authority.43 But the Act does not appear to make express provision for territorial authorities to supervise the activities of its licensing committees.
[72] However, I do not consider it necessary for the purposes of this case to determine the extent to which the Council is empowered to supervise the TDLC’s activities. This is because it emerged in the course of the proceeding that the Council did not intend to as a contradictor, and that its submissions did not in my view advance the consideration of public interest and the effective administration of the Act beyond the submissions made for the Pap House and TDLC.
Indemnity and/or increased costs
[73] The Pap House has succeeded in the sense that I intend to issue a declaration in respect of the withdrawal of its appeal, albeit not the declaration it sought. In all other substantive respects, its proceeding in this Court will be dismissed.
[74] I do not consider it appropriate to award indemnity or increased costs without hearing further from the parties in light of the above findings.
Result
[75] This Court declares that the TDLC acted in excess of its powers when corresponding with the Pap House on 19 September 2022 in respect of its application
40 Goodman Fielder Ltd v Commerce Commission [1987] 2 NZLR 10 (CA).
41 Section 186
42 Section 192
43 Section 200(1)
dated 28 July 2022 (the September Application), by requiring that the Pap House withdraw its appeal against the TDLC’s earlier decision of 22 July 2022 as a condition of granting the September Application on the papers.
[76] The Pap House’s claim for costs is deferred, for determination on the papers upon the filing and service of memoranda of no longer than three pages (excluding schedules):
(a)for the Pap House, within 15 working days of this judgment;
(b)for the TDLC, within a further 10 working days of the Pap House’s submissions; and
(c)for the Council, within a further 10 workings days of the TDLC’s submissions.
[77]The Pap House’s other claims for relief are dismissed.
[78]I also make the following orders:
(a)an order suppressing the names, addresses, occupations or identifying particulars of the three police witnesses referred to at paragraph [10] above; and
(b)an order that the file not be searched without the permission of a Judge.
Johnstone J
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