Woolworths New Zealand Limited v Alcohol Regulatory and Licensing Authority
[2020] NZHC 270
•27 February 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2017-404-2760
CIV 2017-404-2538
CIV 2017-404-2785[2020] NZHC 270
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of section 81 of the Sale and Supply of Alcohol Act 2012 (“Act”) in relation to an application to review a statutory decision of the Alcohol Regulatory and Licensing Authority in relation to appeals on the Auckland District Council’s Provisional Local Alcohol Policy (“PLAP”) under the Act
BETWEEN
WOOLWORTHS NEW ZEALAND LIMITED
First Applicant
REDWOOD CORPORATION LIMITED
Second Applicant Contd: ../2
Hearing: 14 February 2020 Counsel:
J Cooper QC and A Braggins for First Applicant R Hooker and M Martin for Second Applicant
I Thain and I Scorgie for Third Applicant
P McNamara and T Fischer for Second Respondent D R La Hood, Medical Officer of Health
Judgment:
27 February 2020
REASONS FOR RULING ON 14 FEBRUARY 2019 OF DUFFY J
This judgment is delivered by me on 27 February 2020 at 2:30pm
pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
WOOLWORTHS NEW ZEALAND LTD v ALCOHOL REGULATORY AND LICENSING AUTHORITY [2020] NZHC 270 [27 February 2020]
…/2
FOODSTUFFS NORTH ISLAND LIMITED
Third Applicant
ANDALCOHOL REGULATORY AND LICENSING AUTHORITY
First Respondent
AUCKLAND COUNCIL
Second Respondent
THE MEDICAL OFFICER OF HEALTH
Interested Party
[1] On the first day of trial following discussion in Court during Woolworths New Zealand Limited’s (Woolworths’) submissions in support of judicial review, counsel for Woolworths indicated she would be applying to amend the statement of claim.
[2] Then on Tuesday 12 February 2019, Woolworths filed a formal written application to amend. At the time Auckland Council indicated it would oppose the application.
[3] The other party who opposed the judicial review was the Medical Officer of Health. However, he had chosen to appear only on the occasion when he came to deliver submissions. Accordingly, he was not going to be present at the time the application to amend was heard. However, I did not see this as a bar to Woolworths proceeding with its application. In my view, the Medical Officer of Health had chosen to confine the circumstances in which he appeared to make submissions in opposition to the judicial review. A decision not to attend on every day of the hearing necessarily exposed the Medical Officer of Health to risks such as unforeseen developments occurring during the hearing. His absence was a deliberate act on his part, I considered it should not bar Woolworths from proceeding with its application. This meant the only opposition came from Auckland Council.
[4]The other parties did not participate.
[5] Because of time pressures during the hearing it was agreed that the opposed hearing of the application would be heard later but before Auckland Council commenced its defence.
[6] On Thursday 14 February 2019 the application was heard, and I gave a results decision allowing the amendments. My reasons now follow.
The pleading
[7] In its original form the relevant part of Woolworths’ statement of claim was as follows:
6.1 The Authority erred in its decision by interpreting and applying sections 3, 4, and Sub-part 2 of Part 2 of the Act by applying a precautionary principle and:
(a)Reading into the Act an implied precautionary principle when such principle is not provided for in the Act;
(b)Failing to provide reasons as to when they were applying the precautionary principle to determine if an element of the PLAP is unreasonable;
(c)Applying the precautionary principle in such a way which meant that the “testing” of elements by the Authority could not determine the effect of the element nor whether it met the object of the Act; and
(d)Failing to correctly apply the precautionary principle in the manner described given the evidence before the Authority.
[8]The amendments that Woolworths wanted to make formed part of paragraph
6.1 of the statement of claim and ran on from 6.1(d) and were as follows:
(e)Failing to expressly address whether the inclusion of supermarkets and grocery stores in the PLAP in the same manner as other off-licences was unreasonable; and
(f)Failing to provide reasons for its implied conclusion that it was not unreasonable in the PLAP to treat supermarkets and grocery stores in the same manner as all other kinds of off- licences.
Application to amend
[9] The grounds on which the application for leave to amend was sought were as follows: (a) the proposed amendments did not raise a new and significantly different case; (b) they were confined and defined with sufficient particularity; (c) they were necessary to ensure the just determination of the proceedings and would better allow the Court to determine the matters in dispute by specifically identifying certain aspects in which Woolworths said the Alcohol Regulatory Licensing Authority (ARLA) failed to correctly identify the correct legal test; and (d) the merits of the application were strong. In this regard Woolworths argued that the question to be covered by the amendments had been clearly raised before ARLA. It was not clear from ARLA’s decision whether the failure to confront the issue was because of its erroneous interpretation of the test on appeal and a misapplication of the precautionary principle or, whether it simply failed to turn its mind to the issues raised by Woolworths’ appeal.
In short, Woolworths contended that the confusion which ARLA’s decision has generated made it difficult for an applicant in judicial review to identify precisely how ARLA had gone wrong in law.
Grounds of opposition
[10] Auckland Council opposed the application on the grounds: (a) the amendments were not in the interests of justice because they raised new matters in the proceeding that were neither related to nor implicit in Woolworths’ statement of claim; (b) the amendments affected Super Liquor Holdings Limited, which was a company that owned a number of bottle stores (SLHL) and which had appeared before ARLA, therefore, it might wish to intervene in the judicial review proceeding if the amendments were allowed; (c) the amendments would also prejudice the Medical Officer of Health and other parties who appeared before ARLA by requiring them to defend the correctness of ARLA’s decision in relation to its treatment of supermarkets and grocery stores compared to other types of off-licences; and (d) the amendments would cause significant delay because others, who participated in the appeal, would need to be notified of them.
Discussion
[11] The issues for which amendment was sought fell within the scope of the issue as currently pleaded in paragraph 6.1 of the current statement of claim. The proposed amendments were more by way of additional particulars of the pleading, rather than introducing substantively different grounds of review. Perhaps in an effort to make sense of the absence of stated reasons to support ARLA’s conclusions on the reduced closing hours element and the temporary freeze and rebuttable presumptions element, Woolworths had seemingly inferred those conclusions were the result of a wrongful application of the precautionary principle for which no reasons were given. This is the underlying meaning of paragraph 6.1(b) of the original statement of claim. It is not a meaning that is immediately apparent from first reading paragraph 6.1(b), but once the paragraph is read in conjunction with ARLA’s decision and Woolworths’ submissions the underlying meaning becomes clear. Seen in this way it could be said
that there was no need for the amendments because all they did was to make clear what was already pleaded in paragraph 6.1(b).
[12] I was satisfied that the amendments only went as far as to re-state with greater precision what had already been pleaded. I considered their presence was helpful because they served to bring clear direction to what would otherwise have been rather oblique pleading regarding failure to provide reasons. This finding meant there were no issues regarding prejudice to other parties because they were already on notice as to Woolworths’ case.
[13] Moreover, during argument, Auckland Council had submitted there was little in Woolworths’ arguments regarding failure to give reasons because there was evidence before ARLA that supported no differentiation being made between all off- licences. This argument indicated to me that Auckland Council: (a) knew of this argument; (b) had prepared to meet it; and (c) had always understood part of Woolworths’ judicial review of ARLA’s decision rested on the question of whether differentiation between all off-licences was a relevant factor that affected whether ARLA had correctly applied the appeal test in s 81(4) of the Sale and Supply of Alcohol Act 2012. Accordingly, I was further satisfied that Auckland Council would not be prejudiced by the amendments.
[14] Regarding others who had appeared before ARLA but not appeared in the judicial review (such as SLHL), the original paragraph 6.1(b) would have been sufficient to inform them of Woolworths’ arguments regarding absence of reasons. Moreover, even if that were not the case the judicial review was not going to finally dispose of the elements that were affected by the absence of reasons. If they were set aside for that reason, the result would be the matter returned to ARLA for it to consider matters again. That would be the opportunity for other affected persons to be heard on those elements.
[15] If I was wrong on the amendments being no more than a clarification of paragraph 6.1(b), then in the alternative I considered they should be allowed because the interests of justice weighed in favour of that outcome. The merits of permitting Woolworths to run the argument there were no reasons to support the subject elements
were strong. The amendments would not prolong the hearing. Auckland Council was not prejudiced because it was prepared to meet the arguments raised by the amendments. All the necessary evidence was before the Court. Other appellants before ARLA who considered they might be affected by the amendments will have further opportunity to be heard before ARLA should the amendments result in the review being successful and ARLA’s decision set aside.
[16] How ARLA had reached its decision on the reduced closing hours and the temporary freeze and rebuttable presumptions elements was not obvious, and reasons to explain how and why the decision was reached should have been given. The absence of reasons to explain why the appeal against those two elements was dismissed, was a ground of review necessary to enable the real controversy between the parties to be determined. Moreover, ARLA was a quasi-judicial body. It was in the interests of justice for the reasons expressed in Lewis v Wilson & Horton,1 that it be required to give reasons for its decision.2
[17] On the other hand, refusal to allow the amendments would pose a “distinct possibility of injustice” to Woolworths.3 This was because the Court would then be left in the position where it was asked to consider Woolworths’ other grounds of review against the subject elements in circumstances where there appeared to be no reasons to explain why ARLA reached the conclusions that it did. This would make consideration of the other grounds of review for those elements problematic. Accordingly, Woolworths would not receive the full consideration that it was entitled to receive for its review, and was therefore at risk of not enjoying a proper opportunity to be heard on the review.
Duffy J
Solicitors/Counsel:
J Cooper QC, Auckland
1 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [75] – [76].
2 See also Waikanae Christian Holiday Park Inc v New Zealand Historic Places Trust Maori Heritage Council [2015] NZCA 23, [2015] NZAR 302 at [70] where the Court of Appeal endorsed the approach in Lewis v Wilson & Horton but stated “we accept however that there is a growing trend towards a presumptive duty to give reasons and that, in some cases, fairness may demand them”.
3 Elders Pastoral Limited v Pemberton (1990) 2 PRNZ 188 (HC) at 191.
Berry Simons, Auckland (A Braggins)
Vallant Hooker & Partners, Auckland (R Hooker and M Martin) Simpson Grierson, Auckland (P McNamara and T Fischer) DLA Piper New Zealand, Auckland (I Thain and I Scorgie) Luke Cunningham Clere, Wellington (D R La Hood)
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