Stird Potential Ltd v Roycroft - [2019] NZHC 429

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1875

[2019] NZHC 429

BETWEEN
STIRD POTENTIAL LIMITED

Appellant

AND

RICHELLE ANGELINE ROYCROFT

Respondent

Hearing: 13 February 2019

Counsel:

T Greenwood for Appellant A R Govind for Respondent

Judgment:

13 March 2019

JUDGMENT OF WHATA J

This judgment was delivered by me on 13 March 2019 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Greenwood Law, Waiheke Island
Auckland Council – Legal Services

STIRD POTENTIAL LIMITED v ROYCROFT [2019] NZHC 429 [13 March 2019]

Introduction

[1] Stird Potential Limited (SPL) appeals against a decision of the Alcohol Regulatory and Licensing Authority (the Authority) to suspend SPL’s off licence for the unlawful sale of alcohol to an underage person.

Key issues

[2] While multiple grounds are raised by the appellant, with the benefit of argument, there are two key issues to resolve:

(a)Did Mr Harris Clark take all reasonable steps to verify the age of the customer? And, if not;

(b)Did the Authority reasonably reach a conclusion that it should impose the order?

Background

[3] On Thursday, 25 January 2018, Mr Harris Clark, an employee of SPL, sold a bottle of “Rekorderlig” cider to a person aged 15. On Mr Clark’s evidence:

(a)He assessed the customer as potentially underage;

(b)He requested her ID and attempted to enter her birthdate into SPL’s computer age verification system;

(c)He did not enter her age correctly on his first attempt;1

(d)He re-entered her age, this time correctly and waited for a response;

(e)He says a blank screen then appeared and he was baffled by this;

1 There is some dispute in the evidence as to whether he completed this first entry, but that dispute is not germane to the appeal.

(f)At that time, there was a queue of customers waiting to be served so he decided to accept that she was over 18 and completed the sale accordingly without further checking her age.

[4] Mr Harris Clark was not cross-examined on the truthfulness of this account. But Mr Rock Evans, a representative of the supplier of the age verification system, said that there was nothing to show from their records that the age verification system malfunctioned. He said, however, in evidence before me that there was equally nothing to show it did not malfunction. Relevantly, he also said that usually a red alert page would be triggered if the customer was aged as under 18.2 He also accepted that there had been prior incidents of their computer system producing blank screens. This evidence was corroborated by one of SPL’s senior employees.

[5] There was also evidence before the Authority that SPL staff were trained to always use the age verification system when they suspected the customer is underage. In evidence before me, one of the duty managers, Mr Baker, emphasised that this was done because SPL had been previously sanctioned on an occasion when a staff member inadvertently…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stird Potential Ltd v Roycroft

Details

AGLC: Stird Potential Ltd v Roycroft [2019] NZHC 429
Case: [2019] NZHC 429
Decision Date: 13 March 2019

CaseChat Overview and Summary

Stird Potential Limited (SPL) appeals against a decision of the Alcohol Regulatory and Licensing Authority (the Authority) to suspend its off licence for the unlawful sale of alcohol to an underage person. The Authority found that an employee, Mr Harris Clark, did not take all reasonable steps to verify the age of the customer and imposed a suspension. The key issues were whether Mr Clark took all reasonable steps to verify the age of the customer and whether the Authority reasonably imposed the order. The Court found that while Mr Clark took some reasonable steps, he did not take all reasonable steps when he did not verify the age again or exercise judgment upon seeing the customer's passport. The Court also found that the Authority reasonably imposed the order, noting that the absence of active supervision by a duty manager tipped the balance in favour of sanction.

The Court began by examining whether Mr Clark took all reasonable steps to verify the age of the customer. The Court found that Mr Clark took reasonable steps to verify the age by asking for, receiving, and inspecting the customer's passport and entering the date of birth into the age verification system. However, the Court found that Mr Clark did not take all reasonable steps when he did not verify the age again or exercise judgment upon seeing the customer's passport. The Court held that Mr Clark should have repeated the age verification exercise or exercised some judgment about whether a person with a passport birth date of 2002 was over 18.

The Court then examined whether the Authority reasonably imposed the order. The Court found that the Authority reasonably imposed the order, noting that the absence of active supervision by a duty manager tipped the balance in favour of sanction. The Court held that the sale of alcohol to underage persons cannot be left to employees who are unqualified or insufficiently experienced to cope with situations such as that which confronted Mr Clark. The Court also noted that while the facts of the negative holding in the present case did not provide strong grounds for cancellation, the Authority had discretion to impose a sanction.

In conclusion, the Court found that Mr Clark did not take all reasonable steps to verify the age of the customer and that the Authority reasonably imposed the order. The appeal was dismissed, and costs were to lie where they fell.

Orders