McCarthy Enterprises Ltd v Paulin

[2016] NZHC 2316

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV 2016-412-120 [2016] NZHC 2316

BETWEEN

MCCARTHY ENTERPRISES LTD

Appellant

AND

IAN THOMAS PAULIN Respondent

Hearing:	29 September 2016 (by telephone)
Counsel:	D W Sim for Appellant I T Paulin, in person, Respondent
Judgment:	29 September 2016

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Downie Stewart, Dunedin
Copy to:

I T Paulin, New Zealand Police

MCCARTHY ENTERPRISES LTD v PAULIN [2016] NZHC 2316 [29 September 2016]

[1]      McCarthy Enterprises Ltd has appealed against a decision of the Alcohol Regulatory and Licensing Authority given on 5 September 2016.1    As a result of findings made in that decision, the off-licence issued to McCarthy Enterprises Ltd for a “Super Liquor” store in Dunedin was suspended for a period of 21 days, commencing at 8am on Monday 26 September 2016, and ending at 8am on Monday

17 October 2016.

[2]      The papers came before me as Duty Judge in Christchurch yesterday.   I issued a Minute convening a telephone conference at 9.45am this morning.   I was concerned that the period of suspension had already started to run as an application for stay had been made.  I considered it should be dealt with promptly.

[3]      I have had the benefit this morning of submissions from Mr Sim, on behalf of McCarthy Enterprises Ltd, and from Sergeant Paulin, who appeared in the Authority on behalf of the Police.  I gave leave for Sergeant Paulin to represent the Police as, in the time available, counsel had not been instructed.

[4]      I asked Mr Sim to articulate the grounds of appeal.   In general terms they concern a suggestion that the Authority failed to give sufficient weight to various factors.   Sergeant Paulin pointed out that, in mitigation, it had been submitted by counsel for McCarthy Enterprises Ltd that a suspension of 21 days was appropriate and in line with other cases.  Mr Sim indicates that his client takes the view that that concession was made without instructions.

[5]      I am not satisfied that there is any real prospect that an appeal could succeed. When one looks at the reasons given by the Authority and takes account of previous concerns involving the operation of liquor outlets by McCarthy Enterprises Ltd, I consider that the penalty imposed was well within bounds.  It would be necessary for Mr Sim to demonstrate on appeal that the Authority had erred in law, had taken into account an irrelevant factor, had failed to take account of a relevant factor or was plainly wrong.

[6]      Given the background, in particular some observations made by Venning J in another case involving the same appellant,2  I consider that there is no real prospect that an appeal could succeed.   In those circumstances, the application for stay is dismissed.

[7]      The effect of this decision is that the suspension directed by the Authority remains in force. As a result of my decision not to stay the appeal, Mr Sim will take instructions on whether his client wishes to prosecute it further.  It is possible that it may wish to do so because of the effect of the decision on its record.

[8]      Mr Sim shall file and serve a memorandum indicating whether the appeal is to proceed or is abandoned.  That shall be filed and served on or before 7 October

2016.  If the appeal is to proceed, the Registrar shall allocate a date for an appeal

management conference.

P R Heath J