Woolworths New Zealand Limited v Auckland Council

[2022] NZSC 46

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

 SC 139/2021
 [2022] NZSC 46

BETWEEN	WOOLWORTHS NEW ZEALAND LIMITED Applicant
AND	AUCKLAND COUNCIL First Respondent ALCOHOL REGULATORY AND LICENSING AUTHORITY Second Respondent FOODSTUFFS NORTH ISLAND LIMITED Third Respondent

SC 140/2021
BETWEEN	FOODSTUFFS NORTH ISLAND LIMITED Applicant
AND	AUCKLAND COUNCIL First Respondent WOOLWORTHS NEW ZEALAND LIMITED Second Respondent ALCOHOL REGULATORY AND LICENSING AUTHORITY Third Respondent

Court:	William Young, Glazebrook and Ellen France JJ
Counsel:	J S Cooper QC and A W Braggins for Woolworths NZ Ltd I J Thain and I E Scorgie for Foodstuffs North Island Ltd P M S McNamara and T R Fischer for Auckland Council D R La Hood for Medical Officer of Health as Interested Party
Judgment:	13 April 2022

JUDGMENT OF THE COURT

ALeave to appeal is granted (Auckland Council v Woolworths New Zealand Ltd [2021] NZCA 484).

BLeave is granted to the Medical Officer of Health to appear as an interested party at the substantive hearing.

CThe approved question is whether the Court of Appeal was correct to allow the appeal and dismiss the cross-appeal.

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REASONS

1. Although we grant leave to appeal in general terms, the Court is primarily interested in whether the Court of Appeal’s judgment proceeded on the basis that an appeal will only succeed if there is not a “real and appreciable possibility”[1] that the element of the provisional policy challenged will minimise alcohol-related harm (so that proportionality considerations are not material) and, if so, whether this is correct.

   [1]Auckland Council v Woolworths New Zealand Ltd [2021] NZCA 484 (Kós P, Miller and Goddard JJ) at [53], [62] and [109].

2. The parties agreed that the Medical Officer of Health should be granted leave to appear and be heard as an interested party at the substantive appeal, should leave to appeal be granted.  Leave is accordingly granted to the Medical Officer of Health to appear as an interested party at the substantive hearing.

Solicitors:
Berry Simons, Auckland for Woolworths New Zealand Ltd
DLA Piper, Auckland for Foodstuffs North Island Ltd
Simpson Grierson, Auckland for Auckland Council

Luke Cunningham Clere, Wellington for Auckland Medical Officer of Health