Foodstuffs North Island Limited v Auckland Council [2019] NZHC 1697

Foodstuffs North Island Limited v Auckland Council [2019] NZHC 1697 [19 July 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-1901CIV-2018-404-2060[2019] NZHC 1697UNDER the Sale and Supply of Alcohol Act 2012(Act)IN THE MATTER of an appeal under Subpart 5 of Part 2 of theAct against a decision of the AlcoholRegulatory and Licensing Authority inrelation to the resubmission of a provisionallocal alcohol policyBETWEEN FOODSTUFFS NORTH ISLANDLIMITEDAppellantAND AUCKLAND COUNCILRespondentHearing: 5 March 2019; further materials 11 April 2019Counsel: IJ Thain and IE Scorgie for appellantPMS McNamara and TR Fischer for respondentJudgment: 19 July 2019JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 19 July 2019 at 11:30 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: DLA Piper, AucklandSimpson Grierson, AucklandCONTENTSIntroduction [1]The statutory framework [10]What happened in this case – more detailThe P-LAP and first round appeal [27]The Authority's decision on the first round appeal [31]The second round appeal [37]The Council's concern at the "second bite of the cherry" [41]The Authority's decision on the Council's concern [43]The appeal [50]The parties' submissionsFoodstuffs' submissions [61]The Council's submissions [69]DiscussionIs an appeal against a resubmitted P-LAP limited to the amended aspect ofan amended element? [74]Abuse of process – legal principles [82]Abuse of process – application in this case [93]Result [112]Costs [114]Introduction[1] Auckland Council wishes to have a policy for the sale and supply of alcohol inthe Auckland region. Territorial authorities are not required to have such a policy, butif they wish to do so, the policy must be created and implemented in accordance withthe Sale and Supply of Alcohol Act 2012 (the Act). Under the Act, such a policy iscalled a Local Alcohol Policy (LAP). As part of the consultation process leading to aLAP, the Council must produce a Provisional Local Alcohol Policy (P-LAP).Interested parties can made submissions on and appeal against elements of a P-LAP.It is aspects of the Council's P-LAP which are at issue in this case.[2] The Act sets out default maximum trading hours for the sale and supply ofalcohol nationwide.1 Those hours are between 7 am and 11 pm, Monday to Sunday,2for premises for which an off-licence is held. A territorial authority may, however,include in its LAP maximum trading hours which are different to the Act's defaulttrading hours.[3] The Council prepared a P-LAP which originally contained maximum tradinghours for the sale and supply of alcohol of 9 am to 9 pm, Monday to Sunday. A numberof parties, including the appellant (Foodstuffs), lodged an appeal with the AlcoholRegulatory and Licensing Authority (the Authority) in relation to elements of the P-LAP, including the maximum trading hours. The Authority has limited jurisdiction onan appeal, being to, in effect, determine whether the element appealed against isunreasonable in light of the object of the Act.3[4] On the appeal against the Council's proposed maximum trading hours, theAuthority held that the element of the P-LAP relating to those hours was, as a whole,unreasonable. While stating that the maximum trading hours clause was a singleelement and the start and end times for the trading hours could not be severed, theAuthority nevertheless said it was the opening hour aspect of the element that rendered1 Sale and Supply of Alcohol Act 2012, s 43.2 Excluding certain statutory holidays.3 Sale and Supply of Alcohol Act 2012, s 4, provides the Act's object is that the sale, supply andconsumption of alcohol should be undertaken safely and responsibly, and that the harm caused bythe excessive or inappropriate consumption of alcohol should be minimised.the element unreasonable. The Authority therefore requested the Council to reconsiderthe maximum trading hours element. The Council did so and resubmitted its P-LAPto the Authority with an amended element setting the maximum trading hours at 7 amto 9 pm.[5] Under the statutory scheme, the Authority is required to deal with theresubmission of a P-LAP as if were an appeal against every new or amended elementthat has replaced an earlier element appealed against.4 In the context of that appeal,Foodstuffs wants to file evidence and make submissions on the new maximum tradinghours element in the P-LAP. Its evidence will, in large part, address the 9 pm aspectof the maximum trading hours.[6] The Council is concerned that in doing so, Foodstuffs is inappropriately havinga "second bite at the cherry", given the Authority had already received evidence andheard submissions on the 9 pm closing hour, and while finding the whole of themaximum trading hours element unreasonable, stated it was the opening hour aspectof it that rendered it so. It therefore asked the Authority to direct that Foodstuffs couldnot adduce further evidence or make submissions in the appeal on the 9 pm closinghour.[7] The Authority accepted the Council's position. In two interlocutory decisionswhich are the subject of the appeal to this Court, the Authority ruled that it would bean abuse of process for Foodstuffs to file further evidence and make furthersubmissions on the 9 pm aspect of the maximum trading hours element. It thereforedirected that Foodstuffs can only adduce evidence and make submissions on the 7 amaspect of the element, unless reference to the 9 pm closing hour is necessary by virtueof it being incidental or ancillary to addressing the span of the maximum trading hours.[8] Foodstuffs now appeals against the Authority's finding of abuse of process.The parties are agreed that the appeal is on a question of law, namely whether theAuthority was correct in law to categorise Foodstuffs' proposed approach as an abuseof process.4 Sale and Supply of Alcohol Act 2012, s 86(1).[9] Before setting out the factual background to the P-LAP and the parties'submissions, it is first necessary to set out the statutory framework for a LAP and aP-LAP in more detail.The statutory framework[10] Pursuant to s 75 of the Act, any territorial authority may have a policy relatingto the sale, supply or consumption of alcohol within its district (i.e. a LAP).5 Pursuantto s 75(4), no territorial authority is required to have a LAP. If, however, a territorialauthority does wish to have a LAP, that policy must be produced, adopted and broughtinto force in accordance with Subpart 2 of the Act.6[11] Section 77(1) of the Act states that a LAP may include policies on any or all ofthe following matters (but no others):(a) the location of licensed premises by reference to broad areas;(b) the location of licensed premises by reference to proximity to premisesof a particular kind or kinds;(c) the location of licensed premises by reference to proximity to facilitiesof a particular kind or kinds;(d) whether further licences (or licences of a particular kind or kinds)should be issued for premises in the district concerned, or any statedpart of the district;(e) maximum trading hours;(f) the issue of licences, or licences of a particular kind or kinds, subject todiscretionary conditions; and(g) one-way door restrictions.5 Sale and Supply of Alcohol Act 2012, s 75(1).6 Section 75(3).[12] As flagged earlier in this judgment, through the operation of ss 43 and s 44 ofthe Act, and in the absence of a different policy on maximum trading hours in a LAP,the maximum trading hours under the Act are between 7 am and 11 pm, Monday toSunday.7[13] Section 78(1) provides that a territorial authority that wishes to have a LAPmust first produce a draft policy. Section 78(2) sets out a number of matters to whichthe authority must have regard when producing a draft policy. It must also consultwith certain parties, including the Police and Medical Officers of Health.8[14] Having produced a draft policy, s 79 of the Act provides that if the territorialauthority still wishes to have a LAP, it must then produce a P-LAP by using "thespecial consultative procedure" to consult on the draft policy. The special consultativeprocedure is a consultation procedure defined in s 5(1) of the Local Government Act2002. The nature and content of that process is not relevant to the present appeal andI therefore say nothing further about it.[15] When producing a P-LAP, a territorial authority must again have regard to thematters set out in s 78(2).[16] If, after producing the P-LAP, the territorial authority still wishes to continueto have a LAP, it is required to give public notice of:(a) the P-LAP;(b) the rights for appeal against it; and(c) the grounds upon which an appeal may be made.9[17] Section 81 of the Act sets out the right of appeal against a P-LAP:107 Sale and Supply of Alcohol Act 2012, ss 44(1)(a) and 43(1)(b).8 The latter being a role established and defined by the Health Act 1956.9 Sale and Supply of Alcohol Act 2012, s 80(1).10 The italicised aspects of this and other statutory sections set out in this judgment are relevant to astatutory interpretation argument made by the Council, discussed at [74]-[81] below.81 Right of appeal to licensing authority(1) A person or an agency that made submissions as part of the specialconsultative procedure on a draft local alcohol policy may, within 30days of the public notification of the resulting provisional localalcohol policy, appeal to the licensing authority against any elementof that provisional local alcohol policy.(2) The Police or a Medical Officer of Health may, within 30 days of thepublic notification of the resulting provisional local alcohol policy,appeal to the licensing authority against any element of thatprovisional local alcohol policy.(3) Except as provided in subsection (2), a person or agency that did notmake submissions as part of the special consultative procedure on adraft local alcohol policy cannot appeal against any element of theresulting provisional local alcohol policy.(4) The only ground on which an element of the provisional policy can beappealed against is that it is unreasonable in the light of the object ofthis Act.(5) The appeal must be made in accordance with regulations made underthis Act.(6) The territorial authority concerned is the respondent in an appealunder this section.[Emphasis added][18] I will refer in this judgment to appeals to the Authority under s 81 of the Act asa "first round appeal". A first round appeal is to be conducted by way of publichearing.11[19] As noted earlier, the Authority's powers on a first round appeal are reasonablylimited, and are, in effect, binary. They are defined by s 83 of the Act:83 Consideration of appeals by licensing authority(1) The licensing authority must dismiss an appeal against an element ofa provisional local alcohol policy if it—(a) is not satisfied that the element is unreasonable in the light ofthe object of this Act; or(b) is satisfied that the appellant did not make submissions as partof the special consultative procedure on the draft local alcoholpolicy concerned.11 Sale and Supply of Alcohol Act 2012, s 82.(2) The licensing authority must ask the territorial authority concerned toreconsider an element of a provisional local alcohol policy appealedagainst if it is satisfied that—(a) the appellant made submissions as part of the specialconsultative procedure on the draft local alcohol policyconcerned; and(b) the element is unreasonable in the light of the object of thisAct.(3) The licensing authority must notify the appellant and territorialauthority of its decision.(4) The appellant has no right of appeal against the decision of thelicensing authority.(5) Subsection (4) does not limit or affect the Judicial Review ProcedureAct 2016.[20] If the first round appeal against an element of a P-LAP is successful, s 83(2)requires that the element is effectively remitted back to the territorial authority forreconsideration. As can be seen from s 83(4), and excluding the remedy of judicialreview, an appellant has no right of appeal against the Authority's decision on a firstround appeal. The process accordingly comprises a fairly tight regime for appealsagainst P-LAPs and the determination of those appeals.[21] If the Authority considers an element unreasonable and therefore asks therelevant territorial authority to reconsider it, s 84 sets out what the territorial authoritymust then do:84 Actions territorial authority may take if asked to reconsiderelement of provisional policy(1) If the licensing authority asks a territorial authority to reconsider anelement of a provisional local alcohol policy, the territorial authoritymust—(a) resubmit the policy to the licensing authority with the elementdeleted; or(b) resubmit the policy to the licensing authority with the elementreplaced with a new or amended element; or(c) appeal to the High Court against the licensing authority'sfinding that the element is unreasonable in the light of theobject of this Act; or(d) abandon the provisional policy.(2) In an appeal to the High Court against the licensing authority's findingthat an element of a provisional local alcohol policy is unreasonablein the light of the object of this Act, every person who appealed to thelicensing authority against the element is a respondent.[Emphasis added][22] Accordingly, and unlike appellants to the Authority, the relevant territorialauthority can appeal the Authority's finding that an element is unreasonable.12[23] If, however, pursuant to s 84(1)(b), the territorial authority resubmits the P-LAP to the Authority with the relevant element replaced with a new or amendedelement (as occurred in this case), s 86 sets out how the Authority is to deal with theresubmitted P-LAP:86 Effect of resubmission of provisional policy to licensing authority(1) The licensing authority must deal with the resubmission of aprovisional local alcohol policy under section 84(1)(b) or 85(2)(b) asif it were an appeal against every new or amended element that hasreplaced an earlier element appealed against; and sections 81 to 85apply accordingly.(2) The licensing authority may deal with all or any part of theresubmission in private.(3) Subsection (2) overrides subsection (1) and section 82.[Emphasis added][24] Given the resubmitted P-LAP is to be treated as if it were an appeal (unders 81), I will refer to this as a "second round appeal". Unlike first round appeals, whichcan be against any element of a P-LAP, a second round appeal is limited to any newor amended elements in the resubmitted P-LAP. In this way, the statutory regimeenvisages a gradual narrowing of the scope of any successive appeals against P-LAPs.[25] The Authority's ability to deal with any or all of a second round appeal inprivate is also intended to drive efficiency. In its report on the Alcohol Reform Bill,the Justice and Electoral Committee stated:13We recommend amending [draft s 86] to allow the Alcohol Regulatory andLicensing Authority to reach a decision on an amended LAP without havingto hold further public hearings. This change would ensure the LAP approval12 Sale and Supply of Alcohol Act 2012, s 85 sets out what occurs if the territorial authority doesappeal. As that did not occur in this case, I say nothing further about it.13 Alcohol Reform Bill 2010 (236-2) (Select Committee Report) at 7.process was not subject to continual appeals against resubmitted LAPs. TheLicensing Authority would still retain the discretion to hold a public hearingif it considered this necessary, and would be required to have regard to theissues raised in the initial appeal when coming to a decision on an amendedLAP.[Emphasis added][26] The highlighted aspect of the above extract from the Committee's reportbecomes relevant to matters discussed later in this judgment.14What happened in this case – more detailThe P-LAP and first round appeal[27] As noted, the Council wishes to have a LAP. Following the process under theAct, by May 2015, the Council had produced a P-LAP for the Auckland region. Clause4.3.1 of the P-LAP addressed maximum trading hours:Pursuant to ss 77(1)(e) and 45 of the Act, maximum trading hours of off-licences in the Auckland region are 9am to 9pm, Monday to Sunday.[28] Foodstuffs (being a party with a right of appeal under s 81 of the Act) appealedto the Authority against a number of elements of the P-LAP, including cl 4.3.1.[29] Foodstuffs' appeal was contained in an appeal template form produced by theAuthority. Part 3 of that document is headed "Grounds of appeal" and contains a boxin which the appellant is requested to:detail the element of the provisional local alcohol policy that you are appealingand why the element is unreasonable in light of the object of the [Act]. Ensurethis is in sufficient detail to fully inform the Licensing Authority and otherparties of the issues in the appeal.[Emphasis added][30] In a separate document accompanying the template form, Foodstuffs listed anumber of elements against which it appealed, including, as noted, cl 4.3.1. Thedocument also set out (under the heading "Element 1 – maximum off-license tradinghours") the reasons why Foodstuffs considered the proposed maximum trading hoursof 9 am to 9 pm were unreasonable. The essence of Foodstuffs' complaint was that14 See [104] below.the proposed "tightening" of the maximum trading hours was not supported by anysufficient evidence that prohibiting the sale of alcohol during the default maximumtrading hours in the Act would reduce or minimise harm caused by the excessive orinappropriate consumption of alcohol.The Authority's decision on the first round appeal[31] After a public hearing on Foodstuffs' and other appellants' appeals, theAuthority found that cl 4.3.1 of the P-LAP was unreasonable in light of the object ofthe Act. In its summary of its decision, the Authority said the following:15After considering the appeals, the Authority is satisfied that the followingelements of the PLAP are unreasonable in light of the object of the Act. TheCouncil is accordingly asked to reconsider these elements (s 83(2)).The first element is cl.4.3.1 of the PLAP which proposes for Auckland, region-wide maximum off-license trading hours of 9 am to 9 pm. Specifically, theAuthority is satisfied that the 9 am restriction on opening is unreasonable inlight of the object of the Act. Given that the opening hour forms part of thesame element as the maximum closing hour, however, the Authority asks theCouncil to reconsider cl 4.3.1 of the PLAP in its entirety.The second element is comprised of .[32] In the body of its decision, the Authority summarised the "elements underappeal", stating that this included "cl 4.3.1 (maximum trading hours for off-licensesin the Auckland region)".[33] The decision then contained a substantive discussion of the appeal against theelement relating to maximum trading hours. There was first a general discussion, andthen a discussion under the sub-heading "Night (closing hour) restriction", followedby a discussion under the sub-heading "Morning (opening hour) restriction". In itsdiscussion under the sub-heading "Night (closing hour) restriction", the Authoritystated:16Notwithstanding that evidence of reduction in harm from specific reductionsin trading hours of off-licenses is sparse, there is evidence to establish arelationship between off-license trading hours and alcohol consumption andharm. Given the level of alcohol related harm in Auckland, the Authority doesnot consider that it has been established that the closing hour restriction is15 Redwood Corporation Ltd v Auckland Council [2017] NZARLA 247 at [5]-[7].16 At [146].unreasonable in light of the object of the Act. Given this evidential basis forthe closing hour restriction, if the Council considers the closing hourrestriction for off-licenses has the possibility of meeting the object of the Act,then the Council is entitled to test whether that possibility is a reality.[Emphasis added][34] Under the sub-heading "Morning (opening hour) restriction", the Authoritysaid:17In the absence of stronger evidence to support an opening hour restriction, theAuthority considers that, on balance, the opening restriction is unreasonablein light of the object of the Act.[35] In an extract of its decision which is of some importance to the present appeal,the Authority went to state the following:18The morning restriction is part of the same element as the evening restriction.Accordingly, all of cl 4.3.1 is deemed unreasonable in light of the object ofthe Act.The Authority does not consider that the morning hour restriction is severablefrom the closing hour restriction. Whether the element could have beendrafted as two elements is not something that the Authority needs to consider.The element is drafted as a single element. The Authority notes, however, thatthe construction of the element is similar to the construction of s 43(1)(a)which says the maximum trading hours as including both an opening andclosing hour component as part of the 'trading hours'. And the expression ins 77(1)(a) of the Act is a "maximum trading hours". This implies both anopening and closing hour.Given this, the Council is asked to reconsider that maximum trading hours foroff-licenses (i.e. cl 4.3.1) noting, however, that the Authority considers that itis the opening hour aspect of the element that renders it unreasonable in lightof the object of the Act.[Emphasis added][36] The Council did not appeal the Authority's decision to the High Court. Rather,it reconsidered cl.4.3.1 and resubmitted the P-LAP to the Authority. The maximumtrading hours element was amended so that the opening hour was 7 am (i.e. rather than9 am). The closing hour remained the same, namely, 9 pm.17 At [157].18 At [158]-[160].The second round appeal[37] Pursuant to s 86(1) of the Act, the Authority is required to deal with theresubmitted P-LAP as if it were an appeal against the amended cl 4.3.1. Althoughs 86(1) of the Act already required the Authority to proceed as if there were an appealagainst the amended cl 4.3.1, Foodstuffs also filed a notice of appeal against thatelement. Its appeal was filed under s 81(1) of the Act, which applies to any secondround appeal.19[38] Foodstuffs' appeal was limited to cl 4.3.1 (maximum trading hours). Itsgrounds of appeal state that "clause 4.3.1 is unreasonable because of the 9 pmaspect of the clause and for the following reasons ". Six grounds for why theelement is said to be unreasonable are then set out. Four of these are expressly directedto the 9 pm aspect of cl 4.3.1. Two are framed in general terms (i.e. not directed toeither the opening or closing aspects of the element).[39] Foodstuffs says that when compared to its earlier appeal against cl 4.3.1, it canbe seen that the grounds of appeal are different in a number of respects. I havereviewed the grounds of appeal on cl 4.3.1 in both the first and second round appeals.While there are some differences (reflecting, for example, the change to the openinghour from 9 am to 7 am), the substance of the grounds are similar in many respects.[40] In determining the second round appeal, the Authority's choice will again be abinary one. If it decides the amended element is unreasonable, it must again ask theCouncil to reconsider it. The Council would be able to appeal that decision to theHigh Court. If the Authority is not satisfied the element is unreasonable, it mustdismiss the appeal. Neither Foodstuffs or any other appellant will be able to appealthat decision to the High Court. This highlights the "narrowing" of the scope andprospect of any further appeals.19 As a result of s 86(1) of the Act.The Council's concern at the "second bite of the cherry"[41] By memorandum dated 5 December 2017, the Council sought an order fromthe Authority that the submissions and evidence in Foodstuffs' (and other appellants')appeals be confined "to the amended aspect of cl 4.3.1 of the P-LAP i.e. the 7 amopening hour for off-licenses". The Council said that the closing hour aspect ofcl 4.3.1 had been considered, determined and upheld by the Authority in its decisionon the first round appeal.[42] Given this, the Council said Foodstuffs was seeking to relitigate the 9 pmclosing time, which was prohibited by the doctrine of issue estoppel. In its subsequentwritten submissions to the Authority, the Council widened its challenge to also includeabuse of process.The Authority's decision on the Council's concern[43] Having received comprehensive submissions from the parties on both issueestoppel and abuse of process, the Authority issued an interim decision dated21 August 2018 (the August Decision). It set out the principles concerning issueestoppel and abuse of process, drawn from authorities such as Hunter v ChiefConstable of West Midlands Police and Shiels v Blakeley.20[44] The Authority then considered the scheme of the Act. It observed:21There is no dispute between the parties that s 86 provides that any resubmittedPLAP in which an element has been replaced with a new or amended element,must be dealt with as if it were an appeal against that new or amended element.The issue is rather whether the principles of abuse of process or issue estoppelare precluded by, or inconsistent with, the scheme of s 86 such that s 86 wouldbe thwarted by the Authority allowing evidence and submissions on only partof cl 4.3.1.[45] It went on to state that:2220 Hunter v Chief Constable of West Midlands Police [1982] AC 529 (HL); [1981] 3 All ER 727;Shiels v Blakeley [1986] 2 NZLR 262. The Authority also referred to Palmer v Hamlin, HCAuckland CP43/SD01, 11 December 2001; and Opua Ferries Ltd v Northland Regional Council,HC Whangarei CP4/99, 17 May 2004.21 Foodstuffs North Island Ltd v Auckland Council [2018] NZARLA 249-250 at [127] [AugustDecision] at [111].22 At [120].The Authority's evaluation of the reasonableness of a resubmitted element,however, is not done in a vacuum. Rather it is done in the context of theAuthority's determination of earlier appeals against the PLAP. Self-evidently,in the case of a resubmission, an element is resubmitted precisely because theAuthority has asked the Council to reconsider it. In the case of an amendedelement, the Authority cannot determine the reasonableness of the resubmittedelement without being cognisant of the reasons why it asked the Council toreconsider the element and why the Council amended it as it did. For its part,the Council is entitled to rely on the reasons provided by the Authority whenasked to reconsider an element.[Emphasis added][46] The Authority also considered that "not all resubmissions are created equal".It said: "the nature of a resubmitted element can range from an amendment to anentirely new element in lieu of the earlier element". It said:23Specifically, the Authority recognises that it would be a significant obstacle toa territorial authority seeking to implement a PLAP, if s 86 was read to meanevery resubmitted element of a PLAP triggered a further round of freshappeals not only in respect of other elements of the PLAP (as Redwood soughtto do), but also in respect of a matter which the Authority has alreadyconsidered when directing the Council to reconsider the element in question.[Emphasis added][47] The Authority concluded that there was not strictly an issue estoppel. It saidthis was because the reason why it referred cl 4.3.1 back to the Council was becausethe morning hour aspect was considered unreasonable. Thus its observation that the9 pm closing hour was not unreasonable did not contribute and was not determinativeof its decision that cl 4.3.1 was unreasonable. The Authority nevertheless noted thatthe doctrine of abuse of process is broader. It stated that the issue on the 9 pm aspectof cl 4.3.1 "was not decided in [Foodstuffs] favour". The Authority concluded:24The Authority agrees with the Council that it would be an abuse of theAuthority's process which would result in unfairness and undermineconfidence in the administration of justice, if after considerable argument overa period of four weeks the 9 pm closing hour could be argued again. Giventhat the resubmission is an amendment to the opening hour in direct responseto the decision of the Authority after hearing the evidence and submissions inthe initial appeals, the Council is entitled to the benefit of the Authority'sdirection that it is the morning hour restriction that the Authority found to bethe cause of the unreasonableness of cl 4.3.1. The Authority heard evidenceand argument in respect of the 9 pm aspect of the element and was not satisfiedthat aspect of the appellants' challenges met the test in s 81(4) of the Act.23 At [122].24 At [130]-[131].In terms of the fresh or updated evidence which the appellants seek to adduce,the Authority is not satisfied that this evidence is sufficiently new or relevantto warrant reconsideration of the 9 pm aspect of cl 4.3.1.[48] The Authority recognised that given the inevitable time gap between a decisionof the Authority and a resubmission of a P-LAP with new or amended elements, moreand updating evidence will likely be available. It stated, however:25In the latter case, however, to allow further evidence on matters alreadydecided before a PLAP is brought into force will result in a situation wherethe benefit of the Authority's decision on the initial appeals becomesincreasingly unobtainable.[Emphasis added][49] The Authority therefore held that relitigating the 9 pm aspect of cl 4.3.1 wouldbe an abuse of the Authority's process. It noted, however, that Foodstuffs hadindicated it was concerned with the "span of hours". The Authority agreed thatdiscussion of the span of hours might require reference to both the 7 am morningopening hour and 9 pm evening closing hour. In a second decision issued on12 September 2018 (the September Decision), the Authority therefore made finalorders in the following terms:26Pursuant to s 203(9) of the Act, the Authority directs that Foodstuffs NorthIsland Ltd and Woolworths New Zealand Ltd are to confine their evidence andsubmissions in respect of their appeals against cl 4.3.1 of the AucklandCouncil's Provisional Local Alcohol Policy, as resubmitted to the Authorityon 12 October 2017 and following the Authority's direction of 19 July 2017:[a] to matters not previously determined including:[i] the 7:00 am amended aspect of the element; and[ii] the span of the maximum trading hours; but[b] excluding the 9.00 pm closing hour aspect of cl 4.3.1 except in so faras reference to the 9.00 pm closing hour is necessary by virtue of itbeing incidental or ancillary to addressing the span of the maximumtrading hours.25 At [135].26 Foodstuffs North Island Ltd v Auckland Council [2018] NZARLA 255-256.The appeal[50] Foodstuffs appealed both the Authority's August and September Decisions tothis Court.27 Its notice of appeal contains a number of grounds, though all reducedown to the proposition that the Authority had erred in law by:Wrongly determining that it would be an abuse of process for Foodstuffs, inits appeal against element 4.3.1 (Element) of the respondent's resubmittedProvisional Local Alcohol Policy (RPLAP), to adduce evidence and/or presentsubmissions relevant to the 9 pm aspect of the element, other than insofar asreference to the 9 pm aspect of the element is necessary by virtue of it beingincidental or ancillary to addressing the span of the element.[51] There was some debate as to the proper statutory basis for the appeal. Theappeal provisions in the Act are, on their face at least, somewhat curious. Two sets ofappeal rights are contained in Part 2, Subpart 5 of the Act. The first right of appeal isset out in s 159:159 Who may appeal to High CourtAny party may appeal to the High Court against a decision of the licensingauthority if—(a) the proceedings concerned commenced in the licensing authority; or(b) a licensing committee referred the proceedings concerned to thelicensing authority for decision.[52] Under this appeal, the High Court is a "first appeal" court, given theproceedings must have commenced in or been transferred to the Authority.[53] Pursuant to s 161 of the Act, every such appeal is by way of rehearing. Theappeal may be on questions of law or fact.[54] What appears to be a further right of appeal is set out in s 162 of the Act:162 Appeal against decision of licensing authority on question of law(1) Subject to subsection (3), where any party to any proceedings beforethe licensing authority (whether the proceedings commenced in a27 Counsel agreed that the issues in both appeals raised common questions of law and therefore thatthe two proceedings ought to be consolidated, with the notice of appeal against the SeptemberDecision being adopted as the consolidated notice of appeal. For completeness, I note that theCouncil did not cross-appeal the Authority's finding that an issue estoppel did not arise.licensing committee or the licensing authority) is dissatisfied with anydetermination of the licensing authority in the proceedings as beingerroneous in point of law, that party may appeal to the High Court onthe question of law concerned.(2) Subject to sections 152, 153, 161, and 163 to 166, every appeal underthis section must be dealt with in accordance with rules of court.[55] The reference in s 162(2) to s 161 confirms that an appeal under s 162 is alsoby way of rehearing.[56] Section 162 captures decisions of the Authority where the Authority was itselfhearing an appeal from a licencing committee. In that context, the High Court wouldbe a "second appeal" court. In such "second appeals" to the High Court, a party mayonly appeal from the Authority's decision on a question of law.[57] But s 162 is not limited to when the Authority was itself acting on an appeal; itwill include proceedings which were commenced in the Authority. In this sense, itoverlaps with s 159.[58] The interaction between the s 159 and s 162 appeal rights was considered byDuffy J in Grand Hotel Awaroa Ltd v McErlean.28 Duffy J expressed the provisionalview that the right of general appeal in s 159 of the Act "appears to be directed atthe substantial decision of the Authority rather than at procedural rulings orinterlocutory decisions".29 However, she was not required to rule on the issue of anydifferent purpose and scope of ss 159 and 162, as the parties agreed that the appeal inthat case was a question of law and thus fell within the scope of s 162 in any event.[59] Counsel in this case are also agreed that nothing turns on any potentialdifference between ss 159 and 162. Both agree that the matter arising on this appealis a question of law. Appeals under both s 159 and s 162 are by way of rehearing. Ido not consider it appropriate or necessary to embark upon a detailed analysis of theappeal rights under ss 159 and 162 of the Act. As noted, nothing turns on anydifference in this particular case. Further, the issue was not the subject of any28 The Grand Hotel Awaroa Ltd v McErlean [2016] NZHC 269.29 At [24].substantive argument before me. Judicial comment and findings on the appeal rightsunder ss 159 and 162 ought to be reserved for a case in which the issue is determinativeand the subject of full argument before the Court.[60] I approach the question on this appeal in the following way: on the facts beforethe Authority, which are not in dispute, did the Authority err in law by concluding thatFoodstuffs' proposed approach to the second round appeal was an abuse of process?The parties' submissions30Foodstuffs' submissions[61] Foodstuffs first submits that to preclude it from dealing with the 9 pm elementin a second round appeal cannot be an abuse of process, given it only wishes to dowhat it is entitled to do under the Act. It notes that pursuant to s 86(1), the Authoritymust deal with the resubmitted P-LAP as an appeal against every new or amendedelement. The Authority found that the opening and closing hours within the maximumtrading hours element could not be severed from each other, and thus the entirety ofcl 4.3.1 was held to be unreasonable. Foodstuffs therefore submits that in compliancewith s 86(1), the Authority must consider the whole of amended cl 4.3.1 on the secondround appeal. Foodstuffs says it is doing no more than seeking to make submissionson and adduce evidence in relation to a matter properly before the Authority.[62] Foodstuffs further submits that it is apparent from the August Decision that theAuthority proceeded on the basis that it had already finally ruled on – and Foodstuffswas bound by – the 9 pm aspect of cl 4.3.1. Foodstuffs refers to the Authority'scomment that:The Council is entitled to the benefit of the Authority's direction that it is themorning hour restriction that the Authority found to be the cause of theunreasonableness of cl 4.3.1.[63] Foodstuffs says the Authority was wrong to have reached this view. It says theAuthority accepted that its decision or determination on the 9 pm aspect of cl 4.3.130 Both parties made comprehensive and helpful written and oral submissions on the appeal. I meanno disrespect by summarising them in a fairly brief way in this judgment.could not give rise to an issue estoppel against Foodstuffs; or in other words, thatFoodstuffs was not legally bound by any earlier decision on the 9 pm aspect of theamended element.[64] Foodstuffs says it was therefore wrong for the Authority to proceed on the basisthat its earlier comments or statements on the 9 pm closing hour could neverthelesshave the effect of binding Foodstuffs in the second round appeal. Because theAuthority's earlier findings or statements on the 9 pm aspect of the element could notlegally bind Foodstuffs, Foodstuffs says that to address the 9 pm aspect of the elementin the second round appeal cannot amount to a collateral attack on a previousdetermination.[65] Foodstuffs accepts that when dealing with the second round appeal, theAuthority will not make its determination in a vacuum, and it cannot ignore its earlierreasons why it asked the Council to reconsider the element. Mr Thain, counsel forFoodstuffs, says that in this way, it is not a case of Foodstuffs seeking to "relitigate thewhole gamut". The Authority will start from the position it reached in the first roundappeal, and Foodstuffs will need to address what has changed or what is new.[66] Foodstuffs therefore says that by precluding any consideration of the 9 pmaspect of the amended element in the second round appeal, the Authority went wellbeyond recognising that it would not "start from scratch" in that appeal. In particular,it complains that at the time of the ruling, the Authority was not appraised of the actualevidence Foodstuffs would call on the appeal. Ruling it out altogether was therefore"putting the cart before the horse". Foodstuffs says the Authority's decision has theeffect of putting Foodstuffs in the position it would have been in if the Authority hadupheld the Council's argument in the earlier appeal that the morning and evening houraspects of the element were in fact two separate elements. Foodstuffs submits that theAuthority cannot effectively come to that view now "by a side wind".[67] Foodstuffs further says that contrary to the Authority's view, it would not beunfair to the Council, nor would it undermine confidence in the administration ofjustice, if Foodstuffs were able to adduce evidence and make submissions on the 9 pmelement. As noted, Foodstuffs says it is merely doing what it is permitted to do underthe statute. It further says that it would not undermine confidence in the administrationof justice for Foodstuffs to adduce evidence which was not available at the time of theappeal against the original element. Foodstuffs notes that given a number of thematters to which the Authority must have regard in s 78(2) of the Act are dynamic,there may well be different or updating evidence that is relevant to the 9 pm position.[68] Mr Thain ultimately characterised the matter as Foodstuffs not having a"second bite of the cherry", given amended cl 4.3.1 is "a new cherry."The Council's submissions[69] Mr McNamara for the Council raised a preliminary point of statutoryinterpretation. The Council submits that the "amended element" for the purposes of asecond round appeal under ss 86 and 81 of the Act is not cl 4.3.1 in its entirety, anddoes not include the 9 pm closing hour. The 9 pm closing hour has not been amendedas between the original and resubmitted P-LAP. The Council accordingly says theproper interpretation of the reference to the "amended element" in s 86(1) of the Actis the amended aspect of the element only and thus in this case, the 7 am opening hour.[70] Mr McNamara says that such an approach to the interpretation of the "amendedelement" for a second round appeal is consistent with the Parliamentary intention asdiscernible in s 86(1). He says that on a resubmitted P-LAP, the only issue is whetherthe new or amended element in the P-LAP, which has not yet been "tested" before theAuthority, is unreasonable in light of the object of the Act. It is only the amendmentsthemselves that have not been tested, not the other aspects of the element.Mr McNamara says this is consistent with the overriding purpose of there being aprogressive narrowing of issues as successive iterations of the P-LAP proceed throughthe appeal process.[71] Even if this statutory interpretation point is not accepted, the Council says thatthe Authority's decision on abuse of process was clearly correct in any event.Mr McNamara emphasises that abuse of process is a broader concept than issueestoppel, referring in this context to observations of the House of Lords in Hunterv Chief Constable of West Midlands Police.31[72] The Council's submissions proceed on the general basis that the Authority hadalready made a determination against Foodstuffs (and other appellants) on the 9 pmaspect of cl 4.3.1. Mr McNamara submits that what Foodstuffs is seeking to do is insubstance a collateral attack on an earlier determination and as such, it may be struckout.32 He submits Foodstuffs is using the appeal against cl 4.3.1 in the resubmittedP-LAP to "attack the Authority's express finding that a 9 pm closing time is notunreasonable in light of the object of the Act". The Council says Foodstuffs and otherparties who submitted on that issue had a full opportunity to contest that issue overfour weeks of hearing and they should not now have a further opportunity to do so.[73] Mr McNamara further submits that to permit re-argument on the closing houraspect of the element would also be unfair to the Council and other parties whosupported that aspect of the element, and would undermine the public confidence inthe administration of justice. The Council submits that the public would justifiablywonder why the Council was not entitled to the "benefit" of the Authority's expressfinding that the 9 pm closing hour is not unreasonable in light of the object of the Act,and why the appellants should have a further opportunity to raise and address the verysame issue in the second round appeal.DiscussionIs an appeal against a resubmitted P-LAP limited to the amended aspect of anamended element?[74] I deal first with the Council's submission that the "amended element" in respectof which there is a right of appeal under ss 81 and 86 of the Act is not cl 4.3.1 in itsentirety, but only the 7 am opening hour aspect of that element.[75] As a preliminary point I note that this argument is contrary to the Council'ssubmissions to the Authority which led to the August Decision. In its submission, the31 Hunter v Chief Constable of West Midlands Police, above n 20.32 Relying on Palmer v Hamlin, above n 20.Council accepted that the appeal referred to in s 86 is an appeal of the whole amendedelement, rather than just the amended aspect of that element:Counsel for Foodstuffs submits that the Act provides for resubmission of anamended element to be dealt with "as an appeal against that element", not onlythe amendment or the amended aspect of the element. That is a correctinterpretation of s 86, but does not rule out the application of abuse of processor the equitable doctrine of issue estoppel. The Council is not arguing thatFoodstuffs' and Progressive appeals are, as a matter of jurisdiction, confinedto the amended aspect of cl 4.3.1 i.e. the 7 am opening time. The argument isinstead that the Authority should order that the Foodstuffs and Progressiveappeals are confined to the 7 am opening time, to prevent an abuse of theCourt's process, or on the basis that issue estoppel arises.[76] Obviously, however, the Council's earlier position on this issue is notdeterminative of what is ultimately a question of law.[77] I disagree with the Council's (present) submission that the reference to"amended element" in s 86 is a reference to the amended aspect of the element only.First and most importantly, that is not what the statutory section says. On its face, theappeal envisaged under s 86 is in relation to the entirety of the new element, or as isrelevant in this case, the entirety of the amended element. If the appeal was to belimited even further, to the amended aspect(s) of the element, the section would havepresumably said so.[78] Further, that the appeal envisaged under s 86 is in relation to the amendedelement in its entirety makes sense, given it would be wrong to consider only thoseamended aspects of an element on a second round appeal. The amended aspects of anelement in many cases could not be considered in a vacuum, i.e. divorced from the(unamended) balance of the element as a whole.[79] This is also consistent with the Authority's own view that the opening andclosing aspects of the maximum trading hours element are not severable from eachother,33 and hence its request of the Council to "reconsider clause 4.3.1 in itsentirety".34 It is also consistent with ss 44 and 45 of the Act, both of which refer to33 Redwood Corporation Ltd v Auckland Council, above n 15, at [158].34 At [6]."maximum trading hours" as an "element", and thus having both an opening andclosing hour.[80] In addition, I do not accept the interpretation now advanced by the Council isnecessary to give effect to what I accept to be a clear statutory intent for a gradual"narrowing down" of the issues on successive appeals against a P-LAP. Any elementof an original P-LAP can be appealed to the Authority.35 A second round appeal ismuch narrower, being limited to those aspects of a P-LAP which the Authority hasfound to be unreasonable, the Council has reconsidered, and has not abandoned. Thisnarrowing effect is evident in this case, for example, where Foodstuffs' appeal on thefirst round appeal was against several elements of the P-LAP, whereas its appeal onthe second round appeal is limited to cl 4.3.1.[81] For these reasons, I do not accept the statutory interpretation argumentadvanced by the Council. It is therefore necessary to address the issue of abuse ofprocess.Abuse of process – legal principles[82] There are no hard and fast rules as to what will and will not amount to an abuseof process. A leading decision setting out the overriding principles and to which bothparties referred is Hunter v Chief Constable of West Midlands Police.36[83] That case concerned civil action taken by Mr Hunter, one of the six"Birmingham Bombers" convicted on multiple charges of murder following thebombing of two public houses in Birmingham in 1974. During their remand pendingtrial, the defendants made confessions in relation to the bombings. The defendants'convictions, including those of Mr Hunter, turned largely on whether thoseconfessions were admissible, it being accepted that absent the confessions, the chargescould not be proved beyond reasonable doubt. The defendants said the confessionswere inadmissible, as they had been extracted by the Police through violent attacks onthem while held on remand, and threats made against their families.35 Sale and Supply of Alcohol Act 2012, s 81(1).36 Hunter v Chief Constable of West Midlands Police, above n 20.[84] The admissibility of the confessions was the subject of an eight day voir direconducted by the trial judge. He ruled the confessions admissible. The defendantswere ultimately convicted by a jury and sentenced. Their conviction and sentenceappeals were dismissed. The trial judge's findings at the voir dire did not form part ofthe conviction appeal.[85] Subsequently, Mr Hunter (and the other defendants) commenced civilproceedings against the Police and Home Office, seeking damages for the injuries saidto have been suffered by them as a result of the assaults leading to the confessions.The defendants to the civil proceedings applied to strike out Mr Hunter's proceedingon the basis of issue estoppel and/or abuse of process.[86] The High Court declined the strike out application. The Court of Appealgranted it, but other than the judgment of Goff LJ, the judgments focussed on issueestoppel. On appeal to the House of Lords, Lord Diplock, in a speech with which allother members of the House agreed, focused on abuse of process.[87] Having canvassed the procedural history to the criminal and civil proceedings,Lord Diplock observed that the alleged assaults which were the subject of the civilproceedings were "identical" to the alleged assaults which had been the subject of thevoir dire ruling in the criminal proceedings. Lord Diplock stated that the trial judge'sruling in the voir dire was a "final decision" against Mr Hunter (and the otherdefendants) on the question of whether the assaults had occurred.37[88] In therefore dismissing Mr Hunter's appeal in the civil proceedings,Lord Diplock said the following about abuse of process:38My Lords, this is a case about abuse of the process of the High Court. Itconcerns the inherent power which any court of justice must possess to preventmisuse of its procedure in a way which, although not inconsistent with theliteral application of its procedural rules, would nevertheless be manifestlyunfair to a party to litigation before it, or would otherwise bring theadministration of justice into disrepute among right-thinking people. Thecircumstances in which abuse of process can arise are very varied 37 At 541, 542.38 At 536.[89] Lord Diplock went on to state:39The abuse of process which the instant case exemplifies is the initiation ofproceedings in a court of justice for the purpose of mounting a collateral attackupon a final decision against the intending plaintiff which has been made byanother court of competent jurisdiction[90] As will be appreciated from that extract of Lord Diplock's speech set out at[88] above, an abuse of process can arise even if the actions or course of conductproposed falls within the strict bounds of a court's procedural rules. This observationwas accepted in NZ Social Credit Political League v O'Brien, where Somers J stated"[i]t recognises that the literal application of the law itself can be a tyranny".40[91] The broader principles concerning abuse of process discussed in Hunterv Chief Constable of West Midlands Police have also been accepted in this jurisdictionin a number of Court of Appeal and, more recently, Supreme Court, decisions.41 InNZ Social Credit Political League v O'Brien, Somers J framed the underlying dualobjects of striking out for abuse of process as being "finality of litigation and fair useof curial procedures".42 Hardie Boys J, giving judgment for the Court of Appeal inMeates v Taylor, also referred with approval to the extract from Hunter v ChiefConstable of West Midlands Police at [88] above, noting that "the principle is designedto achieve finality of litigation and also fairness in the use of the Court's procedures".43His Honour added a cautionary note, namely that the principle "is not however itselfto be used as an instrument of unfairness. Its role is defensive rather thanaggressive."44[92] More recently, in Lai v Chamberlains, the (then) Chief Justice, givingjudgment for herself and Gault and Keith JJ, described the approach to abuse ofprocess as follows:45A categorical approach would be wrong. On the other hand, the restrictionsupon res judicata should not be swept away by an expansive approach that39 At 541.40 New Zealand Social Credit Political League v O'Brien [1984] 1 NZLR 84 at 95.41 See, for example, Reid v New Zealand Trotting Conference [1984] 1 NZLR 9; Shiels v Blakely,above n 20; Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7.42 New Zealand Social Credit Political League v O'Brien, above n 40, at 95.43 Meates v Taylor [1992] 2 NZLR 36 at 41.44 At 41.45 Lai v Chamberlains, above n 41, at [71].collateral challenges to civil proceedings are always abusive. Whetherproceedings are abusive can be assessed as appropriate against the principlesof finality developed in Henderson v Henderson to protect litigants fromvexation or against the principles developed in Hunter to protect publicconfidence in the administration of justice. For the reasons most fullyexplained in Arthur J S Hall v Simons by Lord Hobhouse, the different systemsof error correction provided for civil and criminal proceedings mean that itmay often not be an abuse of process to impugn a result in earlier civilproceedings. But civil proceedings which seek a conclusion that a subsistingcriminal conviction is wrong will usually be an abuse of process.Abuse of process – application in this case[93] I first consider whether Foodstuff's proposal to adduce evidence and makesubmissions on the 9 pm aspect of the maximum trading hours amounts to a collateralchallenge to a final determination of the Authority.[94] Although the Authority accepted in its August Decision that it had not finallydetermined the 9 pm aspect of the element,46 other aspects of the decision neverthelessreflect its view that it did reach a (final) finding, decision or conclusion on that matter,at least which ought to bind Foodstuffs (and other appellants) in the second roundappeal. For example, the Authority stated in its August Decision that:(a) the 9 pm aspect of the element "was not decided" in the appellants'favour;47(b) it made "findings" on both the opening and closing hours aspects of theelement;48(c) the approach proposed by Foodstuffs (and other appellants) wouldinvolve "re-litigation" of the 9 pm aspect of the element;49 and(d) the Council "is entitled to the benefit of the Authority's direction" thatit is the morning hour restriction that rendered cl 4.3.1 unreasonable.5046 August Decision, above n 21, at [127].47 At [129]48 At [129].49 See, for example, at [138].50 At [130][95] In order to determine what the Authority did and did not decide in the firstround appeal, the starting point is the statutory scheme. Pursuant to s 83 of the Act,the Authority must dismiss an appeal against an element if it is not satisfied the elementis unreasonable,51 or conversely, must ask the relevant territorial authority toreconsider any element it is satisfied is unreasonable.52 Accordingly, its decision isbinary, and must be in respect of the element as a whole. It does not have jurisdictionto dismiss an appeal on the basis that an aspect of an element is unreasonable, or torequire a territorial authority to reconsider only an aspect of an element. That is thereason for the Authority's express finding that the whole of cl 4.3.1 was unreasonable.[96] As such, and adopting the terminology used in Hunter v Chief Constable ofWest Midlands Police, there was not and could not have been a final decision againstFoodstuffs that the 9 pm aspect of the element was reasonable. On the contrary, andconsistent with the Authority's jurisdiction under s 83 of the Act, there was only a finaldecision in favour of Foodstuffs that the whole of cl 4.3.1 was unreasonable.[97] I accordingly do not agree that Foodstuffs adducing evidence and makingsubmissions on the 9 pm aspect of the element would amount to a collateral attack ona final decision against it in the first round appeal. The Authority accordingly erredwhen it proceeded on the basis that its observations or statements concerning the 9 pmaspect of the element in the first round appeal could and ought to bind Foodstuffs onthe second round appeal.[98] I see the more relevant aspect of abuse of process as being whether Foodstuffs'proposed approach is nevertheless unfair to the Council or other parties involved inthe second round appeal, or otherwise brings the administration of justice intodisrepute.[99] Mr Thain is correct that what Foodstuffs proposes to do falls within the fourcorners of the appeal process under the Act. The Authority has found cl 4.3.1 to beunreasonable. It is therefore the whole of that element which is the subject of the51 Sale and Supply of Alcohol Act 2012, s 83(1)(a).52 Section 83(2)(b).second round appeal.53 But as the authorities discussed above make clear, actions canstill amount to an abuse of process even when they strictly comply with the relevantrules or procedures.[100] I have nevertheless concluded that the Authority's decision was incorrect underthis aspect of the abuse of process doctrine also. In purporting to exercise its discretionunder s 203(9) of the Act to exclude any evidence or submissions on the 9 pm aspectof the maximum trading hours element, the Authority has altered or narrowed the veryscope or boundary of the appeal which is mandated by s 86 of the Act. In other words,the effect of the Authority's August Decision is:(a) that the subject matter of the second round appeal is somethingnarrower or less than what the statute says is to be the subject of theappeal; and(b) to transform the Authority's earlier final decision in favour ofFoodstuffs that cl 4.3.1 is unreasonable into a final decision againstFoodstuffs that the 9 pm aspect of that element is not unreasonable, adecision from which Foodstuffs has no right of appeal.[101] This latter point is relevant to observations of the Supreme Court in Arbuthnotv Chief Executive of Department of Work and Income.54 In that case, the BenefitReview Committee (BRC)55 made a determination against the respondent ChiefExecutive that Mr Arbuthnot was not in a relationship of a nature which disqualifiedhim from certain benefits. The Chief Executive had no statutory right of appeal fromthat decision. But, in later appeal proceedings before the Social Security AppealAuthority (conducted by rehearing), the Chief Executive (as respondent to the appeal)sought to reopen the question of whether Mr Arbuthnot was in a disqualifyingrelationship. The High Court held that the Chief Executive could not advance thatargument. The Court of Appeal and Supreme Court disagreed.53 Section 86.54 Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55, [2008] 1NZLR 13.55 A review body established under the Social Security Act 1964.[102] One matter raised in argument before the Supreme Court was whether theChief Executive was prevented by issue estoppel from raising Mr Arbuthnot'srelationship status before the Authority. The Supreme Court held that the BRC wasnot a judicial tribunal and thus the doctrine of issue estoppel did not apply to itsfindings. But Blanchard J, given the judgment of the Court, noted that even if thedoctrine did apply to the BRC, it would have been inappropriate and unfair to apply itin the context of a finding that had been made against the Chief Executive from whichhe had no right of appeal. With reference to Joseph Lynch Land Co Ltd v Lynch, hisHonour, stated:56An over-rigorous application of the issue estoppel doctrine to thecircumstances where there was no right of appeal, or where, as in Lynch, itwas not reasonable to expect any such right to be exercised in practice, wouldindeed produce unfairness disproportionate to the object of achieving finalityin litigation.[103] While these observations were made in the context of issue estoppel, in myview, they apply equally to abuse of process. Both doctrines have the same outcomeof precluding parties from bringing or continuing certain claims or aspects of claims,and both have an object of achieving finality in litigation. A court or tribunal shouldtherefore be cautious to effectively "strike out" claims or proceedings for abuse ofprocess where the earlier finding or determination was not one from which the relevantparty could appeal. That is even more so when the earlier finding or determinationwas not a final and binding determination in any event.[104] The position is reinforced when there are other less draconian steps that canbe taken to avoid any unfairness or bringing the administration of justice intodisrepute. In this case, Foodstuffs accepts, and it must be right, that in a second roundappeal, the Authority does not ignore what has gone before. The Authority recognisedthis in its August Decision, and it was also a matter reflected in the Justice andElectoral Committee's report on the Alcohol Reform Bill as set out at [25] above. Assuch, the Authority will not be starting "from scratch" in its consideration of the 9 pmaspect of the maximum trading hours element in the second round appeal. Itsconsideration of the matters before it on appeal will take into account its considerationof those matters in the first round appeal. It will presumably only wish to place any56 At [29], referring to Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37.real weight or reliance on evidence and/or submissions which are new or fresh.Further, Foodstuffs accepts that in exercising its discretion under s 203(9) of the Act,the Authority would be entitled to rule inadmissible any evidence Foodstuffs (or anyother appellant) seeks to adduce which is truly repetitive of evidence adduced on thefirst round appeal.57[105] Foodstuffs also says the Authority's decision wrongly excludes it fromproducing evidence in the second round appeal that was not available at the time ofthe first round appeal and/or represents an updated position to that considered on thefirst round appeal.[106] The Authority accepts that the matters which it takes into account whenconsidering a P-LAP are dynamic and evolve.58 It also notes that by definition,whenever there is a time gap between a decision of the Authority and the resubmissionof a P-LAP (and thus a second round appeal), more evidence will likely be available.59It says, however, that in such a case:to allow further evidence on matters already decided before a P-LAP isbrought into force will result in a situation where the benefit of the Authority'sdecision on the initial appeals becomes increasingly unobtainable.[Emphasis added][107] A similar point was considered by Wylie J in Guardians of Paku BayAssociation Inc v Waikato Regional Council, albeit again in the context of issueestoppel (and whether it applied in the resource management context).60 But thesubstance of the concern remains. The Judge posed a rhetorical question illustratingthe dilemma of the doctrine applying in the resource management context:61The applicant argues that the environment has changed and that landscapevalues have been undermined by the grant of other applications. Is he57 At the hearing, I inquired with counsel whether another mechanism for the Authority might be toaward costs against parties unnecessarily advancing repetitive evidence and/or submissions, asnoted in Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271at [61](g). In supplementary materials filed on 11 April 2019, the parties jointly confirmed thatthe Authority has the power to award costs, but the quantum is limited to $600, as a result of theAuthority being treated as a Commission of Inquiry, and the operation of the various statutesgoverning such Commissions.58 August Decision, above n 21, at [132].59 At [135].60 Guardians of Paku Bay Association Inc v Waikato Regional Council, above n 57.61 At [62](a).precluded from arguing that point as a consequence of the EnvironmentCourt's earlier decision?[108] Wylie J answered his own rhetorical question by stating "common sensesuggest that the answer must be no, and that issue estoppel does not apply".62[109] In this case, the position is arguably more stark, as contrary to the manner inwhich the Authority has characterised its July 2017 decision, there was no "finaldecision" by it on the 9 pm aspect of the maximum trading hours element. Asexplained earlier, the only decision made was that cl 4.3.1 was unreasonable. In myview, it would be wrong to prevent a party from adducing any evidence, or makingany submissions, on a matter properly before the Authority and which may beinfluenced by dynamic factors and evidence, on the basis of earlier observations orviews which do not themselves amount to final and binding determinations.[110] Ultimately, I accept Foodstuffs' submission that if the Authority's orders areallowed to stand, Foodstuffs (and other appellants) lose the benefit of the Authority'spositive decision that all of cl 4.3.1 is unreasonable. Yet, despite the Authority havingerred in concluding that Foodstuffs' approach is an abuse of process, the Council doesnot "lose the benefit" of the Authority's direction or views from the first round appealabout the closing hours aspect of the element. As noted, in the second round appeal,the Authority will effectively start from the point it reached at the conclusion of thefirst round appeal. In that context, I do not consider it would be an abuse of processfor Foodstuffs to address what it says has changed in relation to the 9 pm aspect of theelement under appeal.[111] Of course, and I reiterate, that within the boundaries of an appeal on cl 4.3.1 asa whole, the Authority is entitled to and will no doubt wish to control the second roundappeal to avoid improper and unnecessary repetition. That is what may be required toprevent an abuse of process, rather than the broader approach adopted in the AugustDecision. In this context, once it is appraised of the actual evidence Foodstuffs wishesto adduce on the second round appeal, it may well be that some is ruled inadmissibleas simply repeating what has gone before.62 At [63].Result[112] Foodstuffs' appeal is accordingly allowed. The Authority's August andSeptember Decisions (to the effect they conclude that it would be an abuse of processfor Foodstuffs to present any evidence or make any submissions on the 9 pm aspect ofthe element under appeal before the Authority, save in those circumstances identifiedin the proviso to order (b) at [13] of the September Decision)63 are reversed.64[113] I do not consider it necessary or appropriate to make any further orders ordeclarations.Costs[114] On the materials presently before the Court, there would appear to be no reasonwhy costs should not follow the event in the ordinary way. Scale costs on a 2B basiswould seem appropriate.[115] I would encourage the parties to agree costs. If costs cannot be agreed,Foodstuffs is to file and serve a costs memorandum within 15 working days of the dateof this judgment. The Council may file and serve a memorandum in response withina further five working days. No memorandum is to exceed five pages in length. I willthereafter determine costs on the papers.____________________Fitzgerald J63 See [49] above.64 Sale and Supply of Alcohol Act 2012, s 161(7).