O'Keefe v Flaxmere (2008) Liquor Limited

[2019] NZHC 2804

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2019-441-000043

[2019] NZHC 2804

UNDER

the Sale and Supply of Alcohol Act 2012

IN THE MATTER OF

an appeal against the decision of the Alcohol Regulatory and Licensing Authority on an application pursuant to section 127 for the renewal of an off-licence in respect of

premises situated at 23 Swansea Road, Flaxmere, Hastings, known as ‘Flaxmere Liquor’.

BETWEEN

HENARE O’KEEFE

First Appellant

AND

DESMA KEMP RATIMA

Second Appellant

AND

FLAXMERE (2008) LIQUOR LIMITED

Respondent

Hearing:	31 October 2019
Counsel:	J Mason for the Appellants P Kaur for the Respondent
Judgment:	31 October 2019

JUDGMENT OF DOOGUE J

[1]    The appellants have appealed a decision of the Alcohol Regulatory and Licensing Authority (ARLA) dated 5 June 2019 granting a renewal of the respondent’s off-licence to Flaxmere (2008) Liquor Limited.

O’KEEFE & RATIMA v FLAXMERE (2008) LIQUOR LIMITED [2019] NZHC 2804 [31 October 2019]

[2]    Today’s matter concerns the appellants’ interlocutory application to adduce evidence under rule 20.16 of the High Court rules (HCRs) by way of two proposed affidavits – one each from the local medical officer of health and the local police.

[3]    As at today’s date the appellants have not produced the affidavits they seek to adduce – despite having ample time to do so. Apparently, the police officer who is to swear the affidavit on behalf of police is unavailable until 11 November 2019. The other deponent’s affidavit is prepared but unsworn.

[4]    The appellants seek an adjournment of their interlocutory application. The respondent refers to the time the appellants have had to get their house in order but is content to abide the decision of the Court on the adjournment so long as costs issue against the appellants for this appearance.

[5]    It is highly regrettable that the affidavits are not before the Court given the amount of time the appellants have had to produce them. And I certainly considered whether or not to strike out the application on those grounds.

[6]    I also question how the proposed evidence will actually assist the Court in any event. On the basis of what has been filed to date it seems to me that the relevant agencies considered the application reached a conclusion in each case and reported as they were required to do so. They did not object. ARLA is not required to go behind their reports beyond what they said on their face. The fact of the matter is that they did not object. Where there are no objections from reporting agencies an authority in ARLA’s position is entitled to take that into account in their evaluative assessment.

[7]    Despite the obstacles counsel for the appellants wishes to continue with the application once the affidavits are before the Court. The appellants risk incurring significant costs if the Court ultimately finds the affidavits ought not to be adduced for the reason given in [6] or any other reason.

[8]    The appellants shall have until 22 November 2019 to file their proposed further evidence.

[9]    The respondent shall have until 6 December 2019 to file any submissions in reply.

[10]   As a result of the considerable delays incurred to date if the affidavits are not filed by 22 November 2019 the application to adduce further evidence shall be struck out for want of prosecution and costs shall follow the event.

[11]   Costs at scale are to issue in favour of the respondent for preparation and attendance at this appearance together with any relevant disbursements.

Doogue J

Solicitors:

Phoenix Law, Wellington Harkness Henry, Hamilton