Woolworths New Zealand Limited v Auckland Council

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

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].
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

CaseChat Overview and Summary

Woolworths New Zealand Limited and Foodstuffs North Island Limited sought leave to appeal against a decision of the Court of Appeal in relation to a policy implemented by the Auckland Council aimed at reducing alcohol-related harm. The Auckland Council, along with the Alcohol Regulatory and Licensing Authority, were the respondents in the original proceedings. The Court of Appeal had allowed an appeal by the Auckland Council and dismissed a cross-appeal by Woolworths New Zealand Limited. The Supreme Court granted leave to appeal and allowed the Medical Officer of Health to appear as an interested party.

The central legal issue before the Supreme Court was whether the Court of Appeal was correct in its approach to the proportionality and effectiveness of the Auckland Council's policy. Specifically, the Court needed to determine if the appeal could only succeed on the basis that there was no "real and appreciable possibility" that the challenged element of the policy would minimise alcohol-related harm. The Court also needed to decide if this approach correctly balanced the need to minimise harm against the rights and interests of the applicants.

The Supreme Court found that the Court of Appeal's judgment was predicated on the incorrect legal standard. The Court of Appeal had placed too much emphasis on the lack of a "real and appreciable possibility" of the policy achieving its goal, without adequately considering the proportionality of the measures taken. The Supreme Court held that a more nuanced approach was required, one that properly balanced the policy's potential harm-reduction benefits against the rights and interests of the applicants. The Court determined that the Court of Appeal's judgment did not sufficiently consider the proportionality of the policy, and thus the appeal should proceed to the substantive hearing.

The Supreme Court granted leave to appeal and directed that the approved question for the substantive hearing would focus on whether the Court of Appeal was correct in its approach to the proportionality and effectiveness of the Auckland Council's policy. The Medical Officer of Health was granted leave to appear as an interested party at the substantive hearing.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established