Thermal Brewing Company Limited v Police

[2023] NZHC 3113

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2023-463-80

[2023] NZHC 3113

UNDER

Section 159 and 161 of the Sale and Supply of Alcohol Act 2012 and the High Court Rules 2016

IN THE MATTER OF

an appeal against a decision of the Alcohol Regulatory Licensing Authority at Rotorua

BETWEEN

THERMAL BREWING COMPANY LIMITED and JESSICA LEAMY

Appellants

AND

NEW ZEALAND POLICE

Respondent

Hearing:	On the papers
Counsel:	F Pilditch KC and T Refoy-Butler for Appellants S Parata for Respondent
Judgment:	3 November 2023

JUDGMENT OF HARVEY J

This judgment is delivered by me on 3 November 2023 at 2.30 pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors/Counsel:

Holland Beckett Law, Tauranga

Fletcher Pilditch King’s Counsel, Downtown Auckland New Zealand Police, Rotorua

THERMAL BREWING COMPANY LTD v NEW ZEALAND POLICE [2023] NZHC 3113 [3 November 2023]

Introduction

[1]    Thermal Brewing Co Ltd operates the popular “Pig & Whistle” restaurant and bar on Tutanekai Street in Rotorua. On 22 July 2022, a controlled purchase operation was undertaken by the Police where two underaged persons were able to buy Corona beer from the bar. The appellants say that within “15 seconds” of the purchase the bartender, having been directed by Jessica Leamy, the bar manager, then checked the identifications of the two youths. The appellants further assert that as a result, the youths did not have the chance to consume their beers.

[2]    The Police alleged the appellants breached the Sale and Supply of Alcohol Act 2012. A hearing was then held before the Alcohol Regulatory Licencing Authority. The Authority imposed suspensions on the company’s licence for 48 hours commencing 8 am, 9 November 2023 to 8 am, 11 November 2023 and on Ms Leamy’s manager’s certificate for 28 days from 11 November until 8 December 2023.1

[3]    On 30 October 2023, an appeal was filed against that decision. The appellants now seek a stay pending hearing of the appeal, supported by an affidavit of Gregory Brown, a director of the company. His affidavit annexes the affidavits, filed in the Authority proceedings, of Margaret Main, who is involved in training for hospitality industry staff and Rosie Harding, group operations manager of the company.

[4]The Police do not oppose the stay.

Legal principles

[5]    Section 153(3) of the Sale and Supply of Alcohol Act 2012 governs the stay of the enforcement of a determination. It is a discretion of a “wide-ranging nature”.2 It is appropriate for the Court to grant a stay of enforcement where the appeal is bona fide, there are no other complaints about the operation of the venue, there would be financial implications and to decline the stay would render the appeal redundant.3 The

1      Parata (NZ Police) v Thermal Brewing Company Limited and Jessica Leamy [2023] NZARLA 172–173.

2      Cats Niteclub (1991) Ltd v Police [1996] 3 NZLR 581.

3      At 584.

High Court Rules 2016, r 20.10 is analogous, and in exercising its discretion under that rule the Court will weigh up the position of both parties.4

Discussion

[6]    The appellants argue that a stay is necessary on several grounds. First, that in the circumstances, any public safety concern associated with the ongoing conduct of the applicants is low. Secondly, if the decision is enforced, the applicants will suffer losses which cannot be compensated on appeal, namely reputational harm and financial hardship. Thirdly, the merits of the appeal are strong. Fourthly, the successful party will not be injuriously affected by the stay. Fifthly, there is a material risk that the appeal would be rendered nugatory by the lack of a stay. Finally, the appellants submit that the overall balance of convenience is in favour of granting the stay of the decision until the appeal is determined.

[7]    For all of the reasons submitted, I agree that, in all the circumstances, a stay is warranted, pending the hearing of the appeal in due course.

Decision

[8]The application for a stay is granted.

Harvey J

4      Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd [1999] 3 NZLR 239, (1999) 13 PRNZ 48 (HC).