Linwood Food Bar Limited v Davison

[2014] NZHC 2796

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000562 [2014] NZHC 2796

BETWEEN

LINWOOD FOOD BAR LIMITED

Appellant

AND

JENNIFER DAVISON Defendant

AND

STUART JOY Second Respondent

AND

PETER SHAW Third Respondent

Hearing:	11 November 2014
Appearances:	T J MacKenzie and N M McSparron for Appellant H F McKenzie for Respondents
Judgment:	11 November 2014

JUDGMENT OF DUNNINGHAM J

[1]      This is an appeal of a decision of the Alcohol Regulatory and Licensing Authority, given on 1 August 2014, declining the appellant’s application for renewal of its on licence.

[2]      A preliminary issue has arisen for determination because the respondents have filed four further affidavits on the second to last working day before hearing and they now apply pursuant to s 138(8) of the Sale of Liquor Act 1989 and r 20.16 of the High Court Rules to have this further evidence admitted.

[3]      The four affidavits comprise:

(a)       an affidavit of Ms Jennifer Davison who is an Alcohol Licensing

Inspector.  Her evidence discusses a graduated response model that is

LINWOOD FOOD BAR LIMITED v DAVISON AND ORS [2014] NZHC 2796 [11 November 2014]

used when dealing with intoxication incidents and non-compliance.  It responds to the appellant’s submissions and, in particular, the concern that Mr Zhang overrode the duty manager.   It adopts some attached evidence of Fiona Proudfoot, another Alcohol Licensing Inspector, and it outlines what was observed on two further visits to the premises after the hearing of the application; one on 20 August 2014 and one on

30 August 2014.

(b)An affidavit of Constable Joy which primarily focuses on statistics obtained in the 12 months prior to Richey Bar being closed down and briefly describes the incidents that were recorded in those Police statistics.

(c)      An affidavit of Tania Herewini, another police constable, who speaks of an incident on 22 August 2014 when she interviewed an intoxicated driver who said he had been drinking at Richey Bar; and finally

(d)An  affidavit  of  Carl  Christensen,  again  a  police  constable,  who discusses an incident which occurred on 24 August 2014.

[4]      Ms McKenzie, in support of the application to admit this evidence, says that it primarily falls into the category of updating evidence which is generally allowed. It was filed in response to the appellant’s submissions which were received three days beforehand.   She also says the respondents were not required to provide the evidence earlier, even though most of the affidavits were sworn on 4 September, because they were really responding to matters raised in submissions and no timetabling orders had been made requiring filing evidence at an earlier date.

[5]      Mr MacKenzie, for the appellant, in response says much of the evidence is not updating evidence, some of the evidence lacks cogency, particularly because it is hearsay  evidence,  and  to  some  extent  he  is  prejudiced  by  its  late  provision. However, his client wishes the hearing to proceed, and a practical response would be to admit updating evidence where the material is within the personal knowledge of the deponent to be led in evidence, and that witness cross-examined today.

[6]      The legal principles applying are clear.   The approach to fresh evidence in such appeals has been discussed in a number of cases and a recent explanation of the principles is given by Duffy J in the decision of General Distributors Ltd and Anor v De’ath and Anor.1

[7]      Section 137(6) of the Act provides that every appeal is to be by way of rehearing and s 138(8) provides that the Court has full discretionary power to hear and receive further evidence on a question of fact, either by oral evidence or by affidavit.

[8]      In  General  Distributors  (albeit  Her  Honour  is  referring  to  the  parallel provisions in the 2012 Act which applied in that case), Duffy J says:

[18]      I consider that the exercise of the discretion in s 161 of the 2012 Act to admit fresh evidence is best guided by the principles for the admission of fresh  evidence that  are applied  under r  20.16.    No  one  argued  that the exercise of the discretion in s 161(4) should be approached more liberally than would be the case under r 20.16.

[19]     The test under the High Court Rules for the admission of fresh evidence on appeal is well established, the Court must be satisfied that:

(a)       The fresh evidence is cogent; (b)  Likely to be material; and

(c)       Could not have reasonably been available at the time of the first hearing.

[9]      To that, I would add, that in the present circumstances I must also consider the issue of prejudice to any party resulting from the fact that the application to admit such evidence has been made informally on the second to last working day before  hearing  and  with  no  opportunity  to  respond  to  that  evidence  before  the hearing itself.

[10]     Bearing in mind those principles and addressing each affidavit in turn, the affidavit of Ms Davison primarily concerns evidence which could have been given at the original hearing, or which I consider is not particularly cogent because it either

effectively  makes  submissions  in  response  to  the  appellant’s  submissions,  or  it adopts evidence of Ms Proudfoot who is not present to give evidence.2

[11]     I consider that Mr MacKenzie’s proposal for dealing with her evidence is a pragmatic and sensible way forward.  Ms Davison can give oral evidence of the two incidents on 20 August 2014 and 30 August 2014 and can be cross-examined on it. However, the written affidavit evidence is not admitted and is to be withdrawn from the file for these proceedings.

[12]     In  respect  of  the  evidence  of  Constable  Joy,  I  accept  Mr  MacKenzie’s evidence that the statistical evidence provided lacks cogency and is, at least in part, hearsay evidence.   It is also evidence which is not strictly updating evidence. However, the incident on 25 August 2014 is, on the face of it, updating evidence.  I will allow evidence on that to be led and Constable Joy can be cross-examined on that. The affidavit itself is not admitted and is to be withdrawn.

[13]     In  respect  of  Constable  Herewini’s  evidence,  I  accept  that  is  hearsay

evidence, it is not cogent and that affidavit is also not admitted into evidence.

[14]     In respect of Constable Christensen’s evidence, that is admitted into evidence but cross-examination of it will be allowed.   I do consider that it falls into the category of updating evidence.

Solicitors:

Wynn Williams, Christchurch

Raymond Donnelly & Co., Christchurch