Ka Pai Kaiti Trust v Kaiti Hotel Limited

[2018] NZHC 1332

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-485-00028

[2018] NZHC 1332

UNDER

The Sale and Supply of Alcohol Act 2012 (the Act)

IN THE MATTER OF

An appeal under Section 162 of the Act

against a decision of the Alcohol Regulatory and Licensing Authority to grant orders pursuant to Section 153(3) of the Act concerning the “Kaiti Sports Bar”

BETWEEN

KA PAI KAITI TRUST

Appellant

AND

KAITI CLUB HOTEL LIMITED

Respondent

Hearing:	7 June 2018
Appearances:	G Hewison and C Leauga for the Appellant R Davies and K Shaw for the Respondent
Judgment:	7 June 2018

ORAL JUDGMENT OF POWELL J

Solicitors:

Te Mata Law Ltd, Auckland Harkness Henry, Hamilton Counsel:

Dr G Hewison

KA PAI KAITI TRUST v KAITI CLUB HOTEL LIMITED [2018] NZHC 1332 [7 June 2018]

[1]                 The Ka Pai Kaiti Trust (“the Trust”) has appealed a decision of the Alcohol Regulatory and Licensing Authority (“Licensing Authority”).

The Decision Appeal Against

[2]                 The Licencing Authority decision, issued by way of a minute dated 19 December 2017, followed a decision of the Gisborne District Licencing Committee declining an application for the renewal of an on-licence by the respondent, Kaiti Club Hotel Limited (“the Hotel”). The Hotel appealed that decision to the Licensing Authority and also sought orders under s 153(3) of the Sale and Supply of Alcohol Act 2012, seeking a stay or suspension of the Licencing Committee decision pending determination of the substantive appeal.

[3]                 In making its decision the Licensing Authority reviewed the leading authority on such applications, the decision of Justice Hansen in Cats Niteclub (1991) Limited v Police.1 The Licensing Authority noted that the evidence provided by the Hotel in support of the application was weak, and that not only the Trust but also the Police and the Medical Officer of Health had raised concerns with regard to the operations of the premises. The Licensing Authority however nonetheless concluded at [20] of its decision:

Given the wide-ranging discretion of the Authority under s 153(3), on balance, the Authority is satisfied that the stay of the DLC’s decision should be granted pending the outcome of the appeal. As the appellant’s licence is due to expire on New Year’s Eve, and the appeal is not able to be heard before the upcoming Christmas interregnum (and is unlikely to be able to be heard in the next few months), the Authority is seized of the fact that the consequences of the appeal, should it be allowed, are such it would be unjust not to allow the stay. This is not only for the appellant, but for any staff reliant on the appellant. The Authority notes, however, that but for this, the Authority would not have been satisfied with the evidence set out in Ms Nagra’s affidavit alone. In other circumstances, without more, the Authority would have likely declined the application.

[4]                 As Mr Hewison noted on behalf of the Trust during the hearing before me the stay is a source of frustration for the Trust as not only was it granted in the first place,

1      Cats Niteclub Limited v Police [1996] 3 NZLR 581 (HC).

it has now been in place for some six months. The substantive appeal has yet to take place and indeed is not scheduled to occur until 6 July 2018. Even if the decision of the Licencing Committee is upheld by the Licensing Authority if a subsequent appeal is filed the stay may remain in place for some time to come.

Approach to Appeal

[5]                 With regard to the present appeal there is no dispute that an appeal from a decision of the Licensing Authority is pursuant to s 162(1) of the Act and is limited to questions of law. As Justice Gendall stated in Christchurch Medical Officer of Health v J & G Vaudrey Ltd:2

This is an appeal pursuant to s 162 of the Act. It is limited to points of law alone. This Court will not interfere with a decision unless it can be shown that the decision maker erred in law, accounted for irrelevant matters, failed to account for relevant matters or was plainly wrong. Factual challenges, whether raised squarely or obliquely, will not be entertained on appeals of this kind save to the extent that they are capable of establishing that the decision appealed is plainly wrong. This is necessarily a very high threshold.

The Case for the Trust

[6]                 In this case the Trust submits that the error of law made by the Licensing Authority was to misapply the test established in the Cats Niteclub decision. Specifically, Mr Hewison submits, that the effect of Hansen J’s judgment was that the Licensing Authority cannot exercise a discretion to grant a suspension or stay under s 153(3) unless the application was supported by a “full affidavit”. The Trust submits that in this case that requirement was not followed, and relies specifically on the Licensing Authority’s decision where it noted that while an affidavit had been filed in support of the Hotel’s application, that evidence was “meagre at best”. The Licensing Authority went on to note:3

The evidence before the Authority to support the submission that if this application is not granted pending the appeal the appellant will be placed in serious financial difficulty and will likely go into liquidation, or that employees will lose their jobs, is weak.

2      Christchurch Medical Officer of Health v J & G Vaudrey Ltd [2016] 2 NZLR 382 at [17].

3 At [16].

[7]                 Mr Hewison submitted that for the Licensing Authority to then go on to grant the suspension of the Licencing Committee’s decision in such circumstances, raised a serious issue given the legislation, unlike its predecessors, is clear that a suspension or stay is not given as of right as it was under the earlier legislation, and the effect of the Licensing Authority’s decision is therefore to set a very low bar for such decisions.

Discussion and Analysis

[8]                 As Ms Shaw for the Hotel submits however, the error alleged is not an error of law. It is clear that in Cats Niteclub Hansen J simply provided guidance for applicants in a case where it appears no evidence in support had been filed in advance. It is however wrong to suggest, both in terms of the language used by Hansen J or indeed the proper construction of s 153(3), that his comments could, in any way, fetter the discretion of the Licensing Authority. First, as Ms Shaw noted, Hansen J himself observed that the discretion given under the section was very wide. Hansen J observed:4

There are no restrictions on the exercise of that discretion. If Parliament had wished to limit the discretion of this Court in any way it would have done so. Indeed, the Act makes it clear that this Court, even of its own motion, may suspend the order. That stresses, to my mind, the wide ranging nature of the discretion.

[9]                 Secondly, the suggestion that His Honour’s comments regarding the need for a full affidavit could amount to some sort of legal fettering of the discretion immediately leads into an analysis of the evidence. The Licensing Authority did not say there was no evidence, nor indeed did the Licensing Authority use the term “full affidavit”. On the contrary the Licensing Authority undertook an assessment of the evidence that was before it. To imply some sort of requirement for a “full affidavit” into the discretion requires this Court to take a quantitative or qualitative assessment of the evidence that was before the Licensing Authority in order to form a view on what evidence may be necessary or appropriate in the circumstances of the decision. These are clearly factual matters rather than a legal test.

4      At page 584.

[10]              In this case there was, as noted, evidence in support of the application before the Licensing Authority. The Licensing Authority properly considered the matters raised against the other relevant considerations, including the opposition of the Trust, in making its decision to grant the relief sought by the Hotel. This was the correct approach for the Licensing Authority to take. As Ms Shaw pointed out, rather than identifying an error of law the Trust is really taking issue with the Licensing Authority’s weighing of the facts. Quite clearly the sufficiency of the evidence was entirely a matter for the Licensing Authority, given it was not suggested that there was not in fact evidence in support of the application that could be taken into account.

[11]              Taken together, I have no hesitation in confirming the Licensing Authority correctly applied the law in exercising its discretion under s 153(3) and as a result the appeal must be and is dismissed.

[12]              The Hotel sought costs on the appeal. If these cannot be agreed within one month of the delivery of this judgment I will determine the issue following the filing of memoranda. I would urge the Hotel to take into account the circumstances that  Mr Hewison noted at the outset, that the Trust is a community group and noting its reasons for bringing the appeal, notwithstanding, as will be clear from my judgment, that it did not have any prospect of success.

Powell J