Medical Officer of Health (for the Manawatu Health District) v G & B Hasler Limited
[2017] NZHC 1890
•9 August 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2017-404-1176 [2017] NZHC 1890
UNDER the Sale and Supply of Alcohol Act 2012 IN THE MATTER
of an appeal pursuant to s 162 of the Act against the decision of the Alcohol Regulatory and Licensing Authority in respect of premises situated at 8 Barraud Street, Dannevirke, known as Dannevirke New World.
BETWEEN
MEDICAL OFFICER OF HEALTH (FOR THE MANAWATU HEALTH DISTRICT) Appellant
AND
G & B HASLER LIMITED Respondent
Hearing: 7 August 2017 Counsel:
C P Browne and R J Sussock for Appellant
I J Thain and I E Scorgie for Respondent
A W Braggins for Proposed IntervenerJudgment:
9 August 2017
JUDGMENT OF CHURCHMAN J
[1] The appellant has appealed a decision of the Alcohol Regulatory and Licensing
Authority (ARLA) with the notice of appeal being dated 12 June 2017.
[2] Pursuant to r 20.8(1)(a) of the High Court Rules, the appeal should have been filed in the Wellington Registry but was filed in the Auckland High Court “to ensure
the appeal was filed in time”.
MEDICAL OFFICER OF HEALTH (FOR THE MANAWATU HEALTH DISTRICT) v G & B HASLER LIMITED [2017] NZHC 1890 [9 August 2017]
[3] The respondent challenged whether the appeal had been brought in time, both on the basis that the appeal was served at 5.01 pm and that the email address that the appeal was sent to was not technically an address for service, as that phrase is used in r 20.6 of the High Court Rules.
[4] On 22 June 2017 the respondent filed a document entitled “Notice of appearance of G & B Hasler Limited”. The first paragraph in that document said:
G & B Hasler Limited considers that this proceeding was brought out of time
(in terms of HCR 20.4).
[5] By interlocutory application of 23 June, the appellant sought orders extending the time for filing and serving of the appeal and costs. An affidavit of Dr Robert Peter Weir dated 20 June 2017 was filed in support of the application, along with an affidavit of service.
[6] On 29 June 2017, the respondent filed a notice “Notice of opposition on behalf of G & B Hasler Limited against extension of time for filing and service of notice of appeal”. The operative part of the document said that the respondent “Does not consent to the making of the order numbered 1(a) in the application”. The notice of opposition also opposed the application for costs.
[7] The grounds upon which the notice of opposition was made included “The appellant is seeking an indulgence from the Court in circumstances where there is no reasonable explanation for the appellant’s failure to duly serve the appeal within the time allowed”.
[8] By notice dated 27 June 2013, Pavan Sharma Raglan Limited and General Distributors Limited filed an application for leave to join these proceedings as intervener.
[9] By notice dated 30 June 2017, the appellant opposed the intervener’s application to be joined.
[10] The matter became before Hinton J in the High Court at Auckland on 4 July and she issued a Minute on 7 July transferring the matter to the Wellington registry. Paragraph [3] of that Minute said:
There are a number of issues to be dealt with at a case management conference if counsel do not sort them in the meantime …
[11] Counsel for the respondent had filed a memorandum dated 30 June 2017 prior to the case management conference before Hinton J.
[12] That memorandum made it clear that the respondent did not accept that the respondent’s email address was “the address for service stated in the proceeding to which the appeal relates for the purposes of r 20.6(2)”. The memorandum also said that the fact that the email was sent at 5.01 pm meant that it must be treated as having been served the following day and was one day out of time.
[13] At paragraph 11 of that memorandum the respondent’s counsel had said:
As set out in paragraph 1.1 of that notice of opposition, the respondent’s position is that it does not consent to an extension of time being granted. The respondent will simply abide the Court’s decision on that matter. However, the respondent does oppose the appellant’s request for an order that the respondent pay the appellant’s costs of the application.
[14] This was a modification of the position set out in the notice of opposition dated
29 June 2017 where the respondent had asserted that there was “… no reasonable explanation for the appellant’s failure to duly serve the appeal within the time allowed”.
[15] That ground of opposition was not addressed in the respondent’s memorandum of 30 June 2017, or the subsequent memorandum of 4 August 2017.
[16] In paragraph 7 of the memorandum of 4 August 2017, the respondent said:
The respondent will simply abide the Court’s decision on whether to grant the extension of time that the appellant requires.
[17] In paragraph 8 the respondent said:
However, the respondent opposes the appellant’s request for an order that the respondent pay the appellant’s costs of the application. That is because the appellant’s requirement for an extension of time is entirely of the appellant’s own making and the respondent does not oppose the appellant’s application for that extension. The appellant’s request for costs ought to be dismissed.
[18] The claim that the respondent has “not opposed the appellant’s application for that extension” is not an accurate representation of the respondent’s position. As mentioned, in the memorandum of 29 June 2017 the respondent made it clear that it did not consent to the making of an order for extension of time and, in relation to the costs application, stated the grounds for its opposition were “… there is no reasonable explanation for the appellant’s failure to duly serve the appeal within the time allowed”.
[19] The affidavit of Dr Robert Peter Weir dated 20 June 2017 and filed in support of the application for extension of time for filing and service of the notice of appeal clearly explains how and why the appeal came to be filed and served on the ALRA within the prescribed time limit but served on the respondent by email one minute late. That affidavit was filed and served on 23 June 2017. From that point, it was unrealistic for the respondent to assert that there had been “no reasonable explanation for the appellant’s failure to duly serve the appeal within the time allowed”.
[20] In paragraph 7 of the memorandum of counsel dated 4 August 2017, the respondent has said that it will abide the Court’s decision on whether to grant the extension of time. Accordingly, I grant that extension.
[21] In relation to the application for costs, Mr Browne relied on the Court of Appeal decision in My Noodle Limited v Queenstown Lakes District Council as authority for the proposition that, notwithstanding the application for extension of time required a small indulgence, it must have been obvious to the respondent that an extension of time would have been granted and that resources would have been saved if consent had been given.1 The Court said that the respondent’s approach to the issue caused material extra expense unnecessarily.
[22] Mr Thain for the respondent opposed the application for costs. At paragraph
12 of his memorandum of 30 June he said:
The need for an application for an extension of time (in terms of s 166 of the Act and High Court Rule 20.4(3)(a)) arose simply because of delay by the appellant, preparation of an unnecessarily prolix notice of appeal inappropriately seeking general declarations and relief in the nature of advisory opinions, and then (apparently) error by the appellant’s solicitor.
[23] In the memorandum of 4 August, the respondent added to that by saying:
That is because the appellant’s requirement for an extension of time is entirely of the appellant’s own making. And the respondent has not opposed the appellant’s application for that extension.
[24] In the case of PAE (New Zealand) v Brosnahan the Court of Appeal dealt with an application for extension of time to file a memorandum supporting a High Court judgment.2 That application had been opposed and although the Court did not make an award of costs against the respondent it said:
However, we signal that in future cases where an opposition is based on similarly flimsy grounds, we may well award costs to an applicant, even though it is seeking the Court’s indulgence.
[25] That case was referred to by the Court of Appeal in its subsequent decision in My Noodle Limited v Queenstown Lakes District Council where costs were awarded notwithstanding the fact that the application in question involved an indulgence.
[26] Mr Thain sought to distinguish the decision in My Noodle Limited v Queenstown Lakes District Council and said that the respondent in this case had not opposed the application for an extension. He also said that because the application was served one minute past five the applicant would have had to make an application for extension in any event.
[27] This was a case where a request for extension of time was inevitably going to be granted. While, by the time the matter came for hearing at the case management conference, the respondent’s position had changed to the point where it abided the Court’s decision on the extension application that was not its initial position.
[28] I accept the appellant’s submission that it has been put to some unnecessary expense as a result of the position initially adopted by the respondent. This appears to be a case that falls within the warning given by the Court of Appeal by PAE (New Zealand) v Brosnahan in that the initial opposition by the respondent was based on flimsy grounds and, at least by 23 June, it became untenable for the respondent to assert that there was “… no reasonable explanation for the appellant’s failure to duly serve the appeal within the time allowed”.
[29] Accordingly, I award the appellant costs on the interlocutory application for extension of time against the respondent on a 2B basis.
Application to intervene
[30] The appellant opposed the application of Pavan Sharma Raglan Ltd and
General Distributors Ltd to join the appeal as intervenors.
[31] In paragraph 15 of counsel’s memorandum of 2 August 2017 it was claimed that the proposed intervenors had not established grounds for granting of leave to intervene and it was submitted that:
The delay and costs associated with permitting any intervention will seriously prejudice the Appellant as well as create an impression of unfairness in forcing the Appellant to respond to more than one party whose interests are aligned.
[32] In the notice of application dated 27 June 2017, the intervenors relied on the grounds that their rights were directly impacted upon and they referred to an appeal3 which was said to raise similar questions and which would be impacted on and possibly determined by the ultimate decision in this case.
[33] The notice of application noted that the appeal sought broad relief in the form of declarations which were said to seek to establish policy directives that would bind District Licensing Committees. It also referred to the fact that the appellant’s appeal was developed in consultation with other Medical Officers of Health and raised issues of public importance.
[34] Counsel for the appellant accepted that this case did raise issues of public importance. He accepted that the decision could affect Pavan Sharma Raglan Ltd although submitted that the effect was no more than would be on any other operator.
[35] I am satisfied that the proposed intervenors do have an interest sufficient to justify them being joined to these proceedings as intervenors.
[36] I believe that the appellants concerns as to potential effects of delay can be adequately met by imposing conditions on the intervenors.
[37] Mr Braggins for the intervenors confirmed that any legal submissions on behalf of the two intervenors would be joint submissions and would be no more than
15 pages in length. He also undertook not to duplicate issues covered in submissions by other parties.
[38] He indicated that he was prepared to restrict his oral submissions at any hearing to three quarters of an hour duration.
[39] Accordingly, leave to intervene is granted on these terms.
Schedule 6 matters
[40] The appellant requests that this matter be heard urgently. The respondent disagrees.
[41] Mr Browne for the appellant refers to the cases of Christchurch Medical Officer of Health v J & G Vaudrey Ltd and J & C Vaudrey Ltd v Canterbury Medical Officer of Health and said that the progress of this case through the High Court and Court of Appeal did cause delays in the processing of applications.4 It was suggested that if the appeal in the present case was successful, some applicants for licences may
have to change their way of operating.
4 Christchurch Medical Officer of Health v J & G Vaudrey Ltd [2016] 2 NZLR 382 and J & C Vaudrey Ltd & Anor v Canterbury Medical Officer of Health [2017] 2 NZLR 334.
[42] Mr Thain noted that the fact that the appellant has filed an appeal in the present case did not mean that the law is currently uncertain and he said that cases waiting to be heard by the District Licensing Committees can and should be determined on the basis of the existing relevant decisions.
[43] I am not persuaded that there is any particular aspect of this case that requires urgency. I accept Mr Thain’s submissions that the applications will continue to be processed in accordance with the law as it stands at the moment.
[44] In terms of the duration of the hearing there seemed to be common agreement that, given that I have granted the application by the intervenors to intervene, that a two day hearing is appropriate.
[45] There was agreement that the appeal be categorised as a category two proceeding for the purposes of r 14.3.
[46] There was also agreement that the appeal is to proceed as determined by r 20.8(1) in the Wellington Registry.
[47] There was agreement that the appellant would not be required to pay security for costs.
[48] As to whether the notice of appeal contains sufficiently detailed points on appeal, the parties agreed to confer and Mr Thain indicated that he would engage with counsel for the appellant to attempt to ascertain common ground. If, following that engagement, the respondent still wishes to advance the proposition that the notice of appeal is unnecessarily prolix or otherwise inappropriate, then that can be the subject of further application.
[49] It was agreed that the appeal did not involve any issues requiring service on the Solicitor-General nor does an amicus curiae need to be appointed.
[50] In terms of timetable it was agreed:
(a) that the appellant would file and serve, not later than 25 working days before the hearing, a common bundle of paginated and indexed copies of all relevant documentation as set out in para 18.4 of the memorandum of 2 August 2017 filed on behalf of the appellant;
(b)that if any party insists on including a document in the common bundle even though another party objects to its inclusion, on the ground that it is a unnecessary or irrelevant, the objection will be recorded for the purposes of any award of costs;
(c) that the appellant will file and serve the appellant’s submission no later than 20 working days before the hearing;
(d)the appellant’s submission will comply with the requirements in cl 11 of Sch 6;
(e) the respondent will file and serve submissions meeting the requirements set out in cl 11 of Sch 6, not later than 10 working days before the hearing;
(f) the intervenor will file and serve submissions not later than five working days before the hearing;
(g)the appellant will prepare for the hearing a bundle of any authorities referred to in the submissions of the parties if they parties consider they ought to be produced to the court;
(h) one copy of each document will be filed with the court.
[51] It was agreed there was no reason for the appeal to be heard by a full Court.
[52] It was agreed that no additional directions were required.
Churchman J
Solicitors:
Wilson Harle, Auckland for Appellant
DLA Piper for Respondent
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