CANTERBURY MEDICAL OFFICER OF HEALTH v BOND MARKETS LIMITED [2018] NZHC 496 [21 March 2018]

CANTERBURY MEDICAL OFFICER OF HEALTH v BOND MARKETS LIMITED [2018] NZHC 496[21 March 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2017-409-000773[2018] NZHC 496BETWEEN CANTERBURY MEDICAL OFFICER OFHEALTHAppellantAND BOND MARKETS LIMITEDRespondentHearing:FurtherSubmissions:19 and 20 February 2018Appellant – 23 February 2018Respondents – 28 February 2018Appearances: C P Browne for AppellantI J Thain for RespondentCounsel for Affected Parties:C F Timbs for General Distributors LimitedM N Zarifeh for Christchurch District Licensing InspectorsJudgment: 21 March 2018JUDGMENT OF GENDALL JIntroduction[1] The appellant seeks to appeal a decision by the Alcohol Regulatory andLicensing Authority (the Authority).1 By that decision, the Authority granted therespondent's alcohol licence for pragmatic reasons, overturning the earlier decision bythe District Licensing Committee (the Committee).[2] As initially pleaded, the appellant did not seek to overturn the outcome of theAuthority's decision but accepted that the decision to grant the licence was justified.Instead, it wished the Court to make certain declarations about the appropriate method1 J & C Vaudrey Ltd v Christchurch District Licensing Inspector [2017] NZARLA PH-294-295.by which the Authority should apply the relevant law in making its decisions. Post-hearing of this matter before me, however, the appellant somewhat resiled from thisposition and at this very late stage it seeks leave to amend its Notice of Appeal toinclude relief in the form of the Authority's decision being overturned.[3] The respondent submits that there is no jurisdiction for the Court to hear suchan appeal and that the declaration sought should not be granted. It says, too, that noleave to amend the Notice of Appeal at this late stage is appropriate.[4] I turn, first, to consider this jurisdiction issue and the appellant's applicationseeking leave to amend its Notice of Appeal. If the appellant fails on these two aspectsthen its present appeal must be dismissed.The Statutory Position[5] The only means by which the Authority's decision can be appealed is under s162 of the Sale and Supply of Alcohol Act 2012 (the Act):162 Appeal against decision of licensing authority on question of law(1) Subject to subsection (3), where any party to any proceedingsbefore the licensing authority (whether the proceedingscommenced in a licensing committee or the licensingauthority) is dissatisfied with any determination of thelicensing authority in the proceedings as being erroneous inpoint of law, that party may appeal to the High Court on thequestion of law concerned.(2) Subject to sections 152, 153, 161, and 163 to 166, everyappeal under this section must be dealt with in accordancewith rules of court.(3) This section does not apply to a decision by the licensingauthority to cancel a licence under section 289 or to cancel amanager's certificate under section 290.[6] The initial consideration in this jurisdictional issue is what is considered to bethe Authority's 'determination' in terms of s 162(1).[7] The terms 'decision' and 'determination' were clearly used interchangeably inthe Act by the drafters. The heading of s 162 used the word "decision", while the bodyof the provision uses the word "determination". In s 158 of the Act, which deals withan appeal to the Authority from a Licencing Committee, the position is different withthe words "decision under appeal" being used in the body of the provision.Respondent's submissions[8] It is useful to consider, first, the respondent's arguments on this jurisdictionissue. As to these, Mr Thain, for the respondent, began by submitting that the relevantdetermination in this case is the Authority's decision to allow the respondent's appealand modify the Committee's original decision by approving the alcohol area therespondent proposed. Mr Thain suggests that rights of appeal here must "relate to theorders made by the courts and not to a judge's intermediate reasoning steps".2 Hepoints to the Supreme Court's statement in Arbuthnot v Chief Executive of theDepartment of Work and Income that:3It is fundamental that an appeal must be against the result to which a decision-maker has come, namely the order or declaration made or other relief given,not directly against the conclusions reached by the decision-maker which ledto that result, although of course any flaws in those conclusions may providethe means of impeaching the result. A litigant cannot therefore, save perhapsin very exceptional circumstances, bring an appeal when they have beenentirely successful and do not wish to alter the result. The successful litigantcannot seek to have the appeal body overturn unfavourable factual or legalconclusions made on the journey to that result which have had no significantimpact on where the decision-maker ultimately arrived. In short, there is noright of appeal against the reasons for a judgment, only against the judgmentitself.[9] Mr Thain suggests that the appellant's position was clear (until replysubmissions) that it did not consider the Authority's acts or determination to beerroneous in law, because it accepted that the result was justified (albeit for pragmaticreasons). As the appellant is not dissatisfied with the Authority's decision to grant thelicence, Mr Thain submits it is not in fact appealing the Authority's decision.Consequently, there is no jurisdiction for the appeal. The mere fact that the appellantconsiders that the answers to his question would be helpful for the Authority in futurecases, does not create jurisdiction where there is none provided by the Act.2 Colman v Police [2010] NZSC 147 at [9].3 Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55 at [25].[10] The respondent's position is that the appeal is in substance, and not merelytechnically, an appeal against statements made by the Authority in the course of itsreasons, rather than an appeal against the Authority's decision itself. Mr Thainmaintains that the appellant has consistently demonstrated in its submissions that itaccepts that the pleaded errors did not affect the result. Thus, he says that the appellanthere is merely seeking a general advisory opinion which would be inappropriate andunhelpful for this Court to give.Appellant's submissions[11] In response, Mr Browne, for the appellant, contends that there is jurisdictionfor the Court to hear this appeal. He suggests the appellant was the unsuccessful partybefore the Authority as initially it sought to have the respondent's application denied.It considers that the Authority made several errors of law in reaching that adverseoutcome. The only reason it has not sought from this Court an order that the decisionbe sent back for reconsideration is a pragmatic one. The appealed decision is in respectof a past period and there would be no practical effect.[12] In addition to this being an appeal by an unsuccessful party, Mr Brownecontends that the circumstances are such that there would be jurisdiction even if thatwere not the case. The Authority gave its decision, he says, expecting that theCommittee would use it as guidance when determining this renewal application and,indeed, in other licence renewal applications. Thus, it is said it constitutes a form ofriding instructions. The appellant's position is that the guidance given by the Authoritycontains errors of law and it is this that it says it seeks to overturn.Appellant's reply submissions of 23 February 2018[13] Pursuant to a minute I issued in this matter on 20 February 2018 the appellantwas to have until 23 February 2018 to file and serve reply submissions. This wasbecause hearing time in this proceeding had run out late on 20 February 2018. In thosereply submissions, counsel for the appellant generally for the first time made a formalrequest that, if this Court was to find there was no jurisdiction for this appeal, leavewas sought to amend its Notice of Appeal to include as relief the setting aside of theAuthority's decision. On this aspect, Mr Browne submitted that leave should begranted because, he says, notice that such an amendment would be sought wassignalled as a possibility in a judicial telephone conference on 23 November 2017.Furthermore, he says no party would be disadvantaged by this, as all parties at thehearing fully addressed the substance of the appeal. Finally, Mr Browne contends thatallowing such an amendment to cure a technical objection here would be in the broadinterests of justice.Respondent's reply submissions of 28 February 2018[14] The reply submissions filed on 28 February 2018 by counsel for the respondentnoted the opposition of the respondent to the appellant's application for leave to amendits Notice of Appeal. In particular, Mr Thain maintained that the appellant had amplewarning throughout of the respondent's arguments about jurisdiction, notice havingbeen given prior to the hearing. He takes issue, as I understand it, with Mr Browne'ssuggestion that the possibility of the amendment he now seeks was signalled earlierand he says that, in any event, the Court should not, at this very late stage, grant leavefor that amendment. He suggests this changes the entire face of this appeal and therespondents have had no proper opportunity to fully respond on that issue.Case Law[15] Mr Thain points to the Supreme Court decision in Independent Fisheries Ltdand Clearwater Land Holdings Ltd v Minister for Canterbury Earthquake Recoveryas one which dealt with a similar jurisdictional problem.4 There, the applicantschallenged in the High Court two decisions of the Minister for Canterbury EarthquakeRecovery. Their judicial review succeeded, and the High Court set aside the Minister'sdecisions. The Minister and other local government bodies appealed the decision. TheCourt of Appeal dismissed the appeal but on the basis of different reasoning from thatof the High Court.[16] The applicants then sought leave to appeal the Court of Appeal's decision,despite being successful. They preferred the High Court's reasoning and wanted theSupreme Court to reinstate those reasons. The Supreme Court phrased the applicants4 Independent Fisheries Ltd and Clearwater Land Holdings Ltd v Minister for CanterburyEarthquake Recovery [2013] NZSC 35 (Independent Fisheries).request as seeking "the reversal of some of the Court of Appeal's reasons for judgmentand the restoration of the reasons for judgment of the High Court".5 The Courtconsidered this to be quite different from seeking the reversal of a decision.[17] The Court distinguished the facts before it from cases such as R v Gordon-Smith6 and Re Greenpeace of New Zealand Inc,7 the former of which the presentappellant seeks to rely on. In R v Gordon-Smith, Ms Gordon-Smith was entitled toseek leave to appeal because she had received a judgment adverse to her in that theCourt of Appeal had reversed a favourable pre-trial ruling.[18] In Re Greenpeace, Greenpeace was granted leave to appeal the Court ofAppeal's decision as it was only partly successful before it. The Court of Appeal hadgiven 'riding instructions' to the original decision maker for it to apply whenreconsidering its decision. The Supreme Court in Independent Fisheries consideredthat, as the Minister in that case had not been ordered to reconsider his decision,Re Greenpeace did not apply.[19] The Supreme Court in Independent Fisheries decided that:8In so far as the Minister or the other respondents may subsequently makedecisions which rely on reasoning in the Court of Appeal's judgment, theapplicants, if they are adversely affected by those decisions, will be able tochallenge them in the normal way.[20] But, the Supreme Court considered in that case that the applicants were merelyseeking an advisory opinion on the Minster's powers. It held that it did not havejurisdiction to give such an opinion and, in any case, it would be inappropriate to doso as:9When in the future the Minister makes decisions under the CanterburyEarthquake Recovery Act 2011, it is much more appropriate that any challengeto such decisions be made and considered in the normal way, in light of thefacts and circumstances underlying such decisions.5 At [3].6 R v Gordon-Smith [2008] NZSC 56, [2009] 1 NZLR 721.7 Re Greenpeace of New Zealand Inc [2013] NZSC 12.8 At [6].9 At [7].[21] And, the Supreme Court had stated earlier in R v Gordon-Smith10 that, ingeneral, advisory opinions are not appropriate for the following reasons:first, the importance of the adversarial nature of the appellate process in thedetermination of appeals, secondly the need for economy in the use of limitedresources of the appellant courts and, thirdly, the responsibility of the courtsto show proper sensitivity to their role in the system of government.AnalysisIs the appellant appealing a "determination" of the Authority?[22] Section 162 of the Act clearly limits appeals to situations where the appellantis "dissatisfied with any determination of the Licensing Authority in the proceedingsas being erroneous in point of law"[23] As I have noted above, the term "determination" as well as the term "decision",both of which it seems have been used interchangeably, refer to the result of ajudgment. When that result is appealed, this will necessarily require the appellateCourt to consider the reasons by which the result was arrived at. However, the Court'sanalysis of those reasons is tied towards its consideration of whether the resultingjudgment was correct or not. As the decision in Arbuthnot v Chief Executive of theDepartment of Work and Income11 noted, the law is clear that "there is no right ofappeal against the reasons for a judgment, only against the judgment itself."[24] I consider that this appeal, as initially pleaded, is unquestionably one againstthe reasons for the Authority's decision rather than the decision itself. Any judgmentI give would therefore be in the nature of an advisory opinion which is not appropriatehere.[25] And, as to the appellant's argument that the Authority in setting out its reasonshas effectively given riding instructions to the Committee for when it is to hear therespondent's renewal application, I am not entirely persuaded that its decision goesthis far. Mr Browne for the appellant in particular points to the Authority's expressinvitation at [77] where it stated:10 R v Gordon-Smith, above n 6 at [18].11 Arbuthnot v Chief Executive of the Department of Work and Income, above n 3 at [25].the [Committee] could, if it was so minded, decline to take into account thes 112(1) purpose for this limb of the test[26] Although it is not strictly necessary for me to decide this point, I comment thatthe statement noted above, at one level, does not equate to the riding instructions givenby the Court of Appeal in Re Greenpeace.12 The Authority, in my view, has notendeavoured to constrain the Committee into following its approach as it used termssuch as "could" and "may". The Committee is not bound by that suggestion.Furthermore, this case differs from Re Greenpeace because the Authority here, inmaking its decision, did not remit the matter back to the Committee to remake thedecision in light of the Authority's explanation of the law. Instead, the Authoritysubstituted its own decision for the Committee's. Indeed, it may be that the Committeemight use the Authority's decision to guide its own but it would be making a separatedecision on a different, albeit reasonably similar, set of facts.[27] In Independent Fisheries,13 however, the applicant was the successful party inthe decision it sought to appeal. While the appellant in the present case wasunsuccessful before the Authority I consider that the present appeal is similar to thatadvanced in the judicial review application in Independent Fisheries because of thenature of what the appellant is asking the Court to do here. The substance of thepresent appeal relates to the way in which the Authority determined whether to grantthe respondent an alcohol licence. The appellant has expressly stated that it does notseek to overturn the result. This is a key factor which differentiates this case from atrue appeal against a decision.[28] Overall, I am satisfied that what the appellant is seeking here is simply ageneral advisory opinion which it is not appropriate for the Court to give in thesecircumstances. I conclude that therefore there is no jurisdiction for the Court to hearthis appeal as presented.12 Re Greenpeace, above n 7.13 Independent Fisheries Ltd and Clearwater Land Holdings Ltd v Minister for CanterburyEarthquake Recovery, above n 4.Should leave be granted for the appellant to alter its Notice of Appeal?[29] As I have noted above, the appellant at this very late stage has now soughtleave to amend its Notice of Appeal to include an order sought to set aside theAuthority's decision itself. Mr Browne for the appellant, contends that allowing sucha cure to what he describes as a mere technical objection would be in the interests ofjustice here. He has suggested, too, that the fact such a possible amendment would (ifnecessary) be sought was signalled at a judicial telephone conference on 23 November2017, although Mr Thain for the respondent takes issue with this. Furthermore,Mr Browne says no parties would be significantly disadvantaged by this as all havehad the opportunity to fully address the substance of the appeal at the hearing beforeme.[30] The respondent opposes the application for leave to amend. It does so partlybecause of the late stage in the proceedings where this has been raised and what it saysis the failure of counsel to give formal notice of such an application earlier. Mr Thainrepeats that the appellant's purported appeal is in substance an appeal againststatements made by the Authority in the course of its reasons, rather than an appealagainst the Authority's determination itself. The proposed amendment, he says, seeksto hide this true nature of the appeal.[31] In order to obtain leave to take such an amending step, not only after the closeof pleadings date but also after what is effectively the close of the trial here, it isnecessary for the appellant to "surmount the three formidable hurdles" of showing thatdoing so would be in the interests of justice and it would not significantly prejudiceother parties or cause significant delay.14 The Court must weigh these constraintsagainst the principle that parties should have every opportunity to ensure that the realcontroversy between them is determined.15[32] Whilst it is possible that at the earlier judicial telephone conference he refersto Mr Browne may have mentioned the possibility of a leave application of this type,what is clear is that Mr Browne did not highlight the possibility again during written14 Elders Pastoral v Marr [1987] 2 PRNZ 383 (CA) at 385, applied in Body Corporate 172108 vGundry [2014] NZHC 954 at [40].15 Shanton Apparel Ltd v Thornton Hall Manufacturing Ltd [1989] 3 NZLR 304 (CA) at 309.submissions or at trial. It is true that during the two day hearing in this proceedingbefore me, the parties to some extent addressed the substance of the appeal. There arepossible arguments therefore, first, that no party would be unduly disadvantaged byleave being given now and, secondly, that the alteration might cause no real delay.However, I must still consider whether it is in the interests of justice to grant leave inlight of what the true nature of the dispute between the parties is here. As to thataspect, in my view, the true nature of the appellant's dispute relates to the way in whichthe Authority interpreted the Court of Appeal's judgment in J & C Vaudrey Limited vCanterbury Medical Officer of Health.16 This appears to have been its focusthroughout submissions and in the questions of law it has submitted. This is also clearfrom the appellant's repeated acknowledgment that the Authority was entitled to cometo the decision it did for pragmatic reasons.[33] A further possible factor pointing towards allowing the amendment is to ensurethat the time spent by the Court and the parties to date in providing and consideringargument on the substantive issues of the appeal is not wasted. Furthermore, theproper application of the Act in light of the previous High Court and Court of Appealdecisions is important. The Authority's decision will likely be used, to an extent, toguide future decisions by the Committee on applications by the respondent and inother cases. There would be some benefit in having the law clearly set out now sothose decisions can proceed on a correct basis.[34] However, considering all the overall circumstances here, on balance I considerthat it would not be in the interests of justice to grant leave in this case to the appellantto amend the relief it seeks. Some delay would be likely to occur as the respondentand the related parties have had no real opportunity to present full submissions on thisleave to amend application, given it was not raised until after conclusion of thehearing. And, in any event, I am of the view that, even with the appellant'samendments, this appeal is not likely to result in the alteration of the Authority'sdecision, because any errors were not material to its conclusion reached essentially forpragmatic reasons.16 J & C Vaudrey Limited v Canterbury Medical Officer of Health [2016] NZCA 539.[35] I consider, too, that the Supreme Court's reasoning in Independent Fisheries17applies here. The appellant will be able to challenge any future decision that relies onthe Authority's reasoning in the normal way. It is more appropriate, as I see it, for theAuthority's reasoning to be tested in such a case in light of the facts and circumstancesunderlying that particular decision. After all, the Court's role is to apply the law to aspecific set of facts. It would be inappropriate for this Court to merely give what is inessence an advisory opinion on how its previous decision should be applied. Such anopinion could easily prove unhelpful to decision-makers. It also does not reflect thisCourt's role.[36] For all these reasons I decline leave to the appellant to amend its Notice ofAppeal.Could the pleaded errors of law have affected the Authority's ultimate decision?[37] If this appeal was to be allowed to proceed (and I have decided otherwise), inorder for it to be successful, any errors of law needed to have been material to theAuthority's decision.18 Although given my decisions noted above, both on the lack ofjurisdiction here and refusing leave to amend the Notice of Appeal, it is not strictlynecessary for me to address this aspect, for completeness it is useful that I add certaincomments which I now do.[38] In his earlier written submissions for the appellant, Mr Browne acknowledgedthroughout that the Authority's decision was justified based upon pragmaticconsiderations relating to the passage of time relative to the licence renewal. In thisregard, Mr Browne stated in his submissions:This appeal on questions of law does not seek to reverse the decision to grantthe off-licenceThe appellant accepts that the passage of time taken by theseries of appeals has meant that the time period of both the licence and its firstrenewal has almost expired (July 2018) and that that consideration justifiedapproval of the status quo until the next consideration.(Emphasis added)17 Independent Fisheries Ltd and Clearwater Land Holdings Ltd v Minister for CanterburyEarthquake Recovery, above n 4 at [6] – [7].18 Manos v Waitakere City Council [1996] NZRMA 145.[39] It seems now, subsequent to closure of the hearing in this proceeding, that theappellant is endeavouring to argue that this statement, however, might not accuratelyset out its position. As best I can tell, the appellant appears to contend now that theAuthority's decision was wrong in points of law and that errors of law were made inreaching the decision. The appellant might seem now to recognise that correcting thelegal errors would not necessarily determine the outcome but it argues that there is apossibility the Authority would have reached a different decision if it had approachedthe s 112(1) purpose correctly. (This provision relates to the need to limit the exposureof shoppers to displays, promotion and advertising of alcohol). On this aspect,Mr Browne submitted:Although the final decision involved balancing competing considerations, theappellant argues that the balancing must be presumed to have been affectedby legal errors affecting assessment of one of the mandatory considerations(the s 112(1) purpose).[40] In his reply submissions, Mr Thain for the respondent maintains that theappellant's actual view, as revealed by the bulk of Mr Browne's submissions, was thatit considered the Authority properly made its decision to grant the licence forpragmatic reasons, despite what it may have found when applying the test unders 112(1). On this, the respondent points to the following statements advanced for theappellant:The decision to grant the licence on the basis proposed was for pragmaticreasons, rather than because the single area proposed by the [respondent] wasconsistent with the express purposes of the single area provisions set out ins 112(1).And:In fact, although [the Authority] said that it was declining to take that s 112(1)purpose into account, it appears not to have done so but rather to have decidedto grant the licence despite its assessment of the consistency of the proposedarea with the s 112 purpose, because of timing pressures on the licensingprocess arising from the delays associated with the appeals.And:All that the passage in the [Court of Appeal] decision can have been intendedto mean is that the assessment is not determinative and, in somecircumstances, there may be reason to impose a single area condition that isnot consistent with the s 112(1) purpose. That appears to be what happenedin this case, where the delays arising as a result of the appeals mean that thecurrent licence will shortly expire(Emphasis added)[41] These statements by the appellant would seem to acknowledge what is clearfrom the decision of the Authority. This is to the effect that, even if the Authority hadmisstated or misapplied the correct legal position, any errors did not impact on itsultimate decision that, simply because of pragmatic reasons, a licence should begranted for the now expired period. The Authority considered it was not reasonableor in the interests of justice for the decision to be remitted back to the Committee forfurther reconsideration. Therefore, even if this Court were to find that the Authorityhad made errors of law, as the appellant submits, it is unlikely in my view that thoseerrors affected its ultimate decision. In that case this Court would not overturn theAuthority's decision because the errors were not material.19Result[42] For reasons outlined above, I have found that there is no jurisdiction here forthe appellant's appeal because it does not properly challenge the determination madeby the Authority. In terms of s 162 of the Act an appeal is allowed only against theAuthority's ultimate determination or decision and the appellant here is unable toappeal the reasons for the Authority's decision. As the appellant does not challengethe decision itself there is no jurisdiction for this Court to hear the appellant's appeal.[43] Further, and for those particular reasons which are also outlined above, Idecline leave to the appellant to amend its Notice of Appeal.[44] This appeal is therefore dismissed.19 This approach was upheld in Manos v Waitakere City Council, above n 18.Costs[45] As to costs here, they are reserved. No submissions on costs were advanced tome. Counsel instead have requested they might now have an opportunity to do so.[46] Accordingly, I now direct that all counsel are to file and serve submissions oncosts (sequentially) which are to be referred to me and, in the absence of any partyindicating they wish to be heard on the matter, I will decide the question of costs basedupon the memoranda filed and all the material before the Court..................................................Gendall JSolicitors:Wilson Harle, AucklandDLA Piper New Zealand, AucklandBerry Simons, AucklandRaymond Donnelly & Co, Christchurch