The Grand Hotel Awaroa Limited v Police (McErlean)

[2016] NZHC 1787

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-002483 [2016] NZHC 1787

UNDER

Section 168 of the Sale and Supply of

Alcohol Act 2012 and Part 7 of the High
Court Rules

IN THE MATTER

of an application for leave to appeal to the
Court of Appeal

BETWEEN

THE GRAND HOTEL AWAROA LIMITED

First Appellant

BONNIE DAWN JOHNSON Second Appellant

AND

SAMUEL RICHARD MCERLEAN ON BEHALF OF THE NEW ZEALAND POLICE

Respondent

Hearing:	28 July 2016
Counsel:	P F Chambers for Second Appellant S L McColgan for Respondent
Judgment:	3 August 2016

JUDGMENT OF DUFFY J

This judgment was delivered by me on Wednesday, 3 August 2016 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors / Counsel:

Henley-Smith Law, Glen Eden. Meredith Connell, Auckland.

P F Chambers, Auckland.

THE GRAND HOTEL AWAROA LTD v MCERLEAN ON BEHALF OF THE NEW ZEALAND POLICE [2016] NZHC 1787 [3 August 2016]

[1]      The second appellant, Ms Johnson, seeks leave to appeal the decision which I delivered on 25 February 2016 dismissing the appeal from a ruling of the Alcohol Regulatory and Licensing Authority (“the Authority”).

Facts

The Authority

[2]      The appellants had a case set down to be heard in front of the Authority on

1 July 2015.  Mr Hart appeared before the Authority and sought leave to appear as “pro bono” agent for both appellants.   The Authority directed Mr Hart to make a formal application to be appointed as an agent within seven days from 1 July 2015, which he did.

[3]      The Authority then made a ruling on 24 September 2014 in which it held that the Authority has the power to regulate its own proceedings.  It stated that when an agent wishes to appear on behalf of an interested party, an application should be made well in advance of the hearing date.  The Authority would then consider the application and determine the suitability of the agent to appear on a case by case basis.

[4]      The Authority declined to allow Mr Hart to appear on the basis that he had been struck of the roll of barristers and solicitors and was not considered a suitable person to appear.

The High Court

[5]      The appellants appealed the ruling of the Authority to the High Court under ss 159 and 162 of the Sale and Supply of Alcohol Act (“the Act”).  At the hearing, it was accepted that the correct section was s 162 and the appeal was dealt with on that

basis.1

1      The Grand Hotel Awaroa Limited v McErlean on Behalf of the New Zealand Police [2016] NZHC 269 at [25].

[6]      I held that s 206 of the Act clearly states that persons involved in proceedings under ss 280 and 285 of the Act may appear and be heard “personally or by counsel” and that Mr Hart did not fall into either category.2   It followed that Mr Hart had no right of audience before the Authority.

[7]      I noted that s 203(9) of the Act confers power on the Authority to regulate its procedure and that the Authority, in the past, seems to have used this provision to allow another class of person to appear.3    Of relevance to the current application is the following paragraph of the judgment:

[37]      It  may be that the Authority's use of s 203(9) to give leave for persons appearing before it to be represented by agents exceeds the limits  of  this  provision.  The  express  and  explicit  language  of s 206(2)  may  preclude  reliance  on  the  more  generally  worded language of s 203(9) for any extension of the categories of persons specified in s 206(2). On the other hand, s 206(2) may only apply to rights of audience and the Authority may be able to look to some other statutory provision available to it for discretionary authority to permit agents to appear as well. In this regard I note that the present appeal has focussed only on rights of audience. It follows that, whether the Authority has discretionary power to allow persons other than counsel to represent the parties appearing before it or not is a separate question that I do not need to determine now.

Leave to appeal

[8]      The application for leave to appeal is brought pursuant to s 168 of the Act which provides:

168     Further appeal to Court of Appeal

(1)       Any party to an appeal under section 162 who is dissatisfied with the determination of the High Court on any point of law may, with leave of the High Court or (if that leave is declined) with special leave of the  Court  of Appeal,  appeal  to  the  Court  of Appeal  against  the determination.

(2)       A party desiring to appeal to the Court of Appeal under this section must, within 15 working days after the determination of the High Court, or within such further time as that court may allow, give notice of the application for leave to appeal in such manner as may be directed by rules of court, and the High Court may grant leave accordingly if in the opinion of that court the question of law involved in the appeal is one that by reason of its general or public

2 At [32].

3 At [36].

importance or for any other reason, ought to be submitted to the

Court of Appeal for decision.

[9]      Applications  for  leave  to  appeal  under  s  168  are  to  be  determined  in accordance with the general principles for leave to appeal.   Leave will be granted where the appeal raises a question of law which is capable of bona fide and serious argument and the case involves some public or private interest of sufficient importance to outweigh the costs and delay of a further appeal.4

[10]     At the hearing of the leave application the question of law for which leave is sought was refined to read:  “Whether a lay person has a right or entitlement under the Act to appear before the Authority on behalf of another person”.  The respondent, who opposed the granting of leave, acknowledged that the refined question touched on rights of audience before the Authority, which he accepted involved general or public interests that met the second limb of the test in Waller v Hider.  I agree with that assessment.   However, the respondent maintained its stance that the proposed question of law, even as refined, was not capable of bona fide and serious argument.

[11]     In my view, the refined question proposed by Ms Johnson is not a seriously arguable question of law.  The relationship between the Commissions of Inquiry Act

1908 and the Sale and Supply of Alcohol Act is clearly set out in s 201 of the Act. Section 201 provides that where there is a conflict, the Act prevails.  Nor are there any grounds for reading the term “agent” into s 206, either as falling within “personally” or “counsel” or simply as implied.  Had Parliament’s intention been to give agents the automatic right to appear, it would have listed “agent” in the section, or simply incorporated the position as it stands under the Commissions of Inquiry Act.  Reading “agent” into the section would be contrary to the express wording of s 206, which clearly states that a lay person does not have a right or entitlement

under the Act to appear before the Authority on behalf of another person.

4      Waller v Hider [1998] 1 NZLR 412 (CA) at 413; Snee v Snee (1999) 13 PRNZ 609 (CA) at 612.

Conclusion

[12]     The appellant has not advanced a question of law capable of serious or bona fide argument.  Accordingly, the test for leave has not been met and I dismiss the application.

……………………………..

Duffy J