RANDHAWA LTD v TAURANGA DISTRICT LICENSING COMMITTEE [2023] NZHC 2579

RANDHAWA LTD v TAURANGA DISTRICT LICENSING COMMITTEE [2023] NZHC 2579 [15 September2023]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECIV-2022-470-140[2023] NZHC 2579BETWEEN G & H RANDHAWA LIMITED(the 'PAP HOUSE')PlaintiffAND TAURANGA DISTRICT LICENSINGCOMMITTEEFirst DefendantAND TAURANGA CITY COUNCILSecond DefendantHearing: 9 August 2023Appearances: D W Pawson and E R Doyle for PlaintiffK E Cornege and M S Crocket for First DefendantS P Farnell for Second DefendantJudgment: 15 September 2023JUDGMENT OF JOHNSTONE JThis judgment was delivered by me on 15 September 2023 at 2pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Tompkins Wake, HamiltonRice Speir, Auckland[1] In this proceeding, the plaintiff (the Pap House), an operator of licensedpremises trading under that name at Papamoa Beach, seeks judicial review ofdecision-making of the first defendant, the Tauranga District Licensing Committee(TDLC).Background[2] In February 2022, the Pap House's on-licence expired. In July 2022, the TDLCdeclined its application for a new on-licence (the First Decision).1 At the same time,the TDLC declined an associated application for a manager's certificate. Thisapplication had been made by Sohan (Bobby) Singh, the son in law of the Pap House'sdirectors. Mr Singh had been the manager of the Pap House while its previouson-licence was current. The TDLC found both the Pap House and Mr Singh to beunsuitable as licence holders.[3] Immediately, the Pap House appealed against the TDLC's First Decision, tothe Alcohol Regulatory and Licensing Authority (ARLA). In September 2022, it alsopursued a fresh application, on this occasion naming Mr Singh's wife,Sharnjit (Sharon) Kaur, as its contact person (the September Application).[4] Ms Kaur had in the meantime become a third director of the Pap House. TheSeptember Application was accompanied by an undertaking that Mr Singh would notbe involved with the operation and management of the Pap House. The undertakingwas offered "without prejudice to [the] appeal".[5] On 19 September 2022, the TDLC corresponded with the agent who had beenworking for the Pap House in connection with its licensing applications, suggestingvarious amendments to the operating conditions forming the basis for the freshapplication. It added that "[w]e require an indication that if a new On Licence isgranted on the papers now then the appeal currently before ARLA would bewithdrawn."1 Decision 21/ON/80004566/2022.[6] The Pap House's agent responded that day, agreeing to the various amendedworking conditions and providing the required indication that the appeal of theFirst Decision would be withdrawn. Later, on 19 September 2022, the TDLC issueda written decision (the Second Decision) granting the September Application, anddirecting the issue of a 12-month on-licence.[7] The Second Decision recorded that "within 5 days of the date of issuance theapplicant shall submit evidence to the DLC that it has formally abandoned its appealbefore ARLA on the July hearing decision". By memorandum of its counsel,David Pawson, dated 20 September 2022, filed with the ARLA, the Pap Housewithdrew its appeal against the First Decision, Mr Pawson making plain that it did so"under duress and against legal advice".[8] Mr Singh appealed to the ARLA against the TDLC's July 2022 decision todecline his manager's licence. On 2 August 2023, the ARLA declined Mr Singh'sappeal.2Nature of review sought[9] In November 2022, the Pap House filed a statement of claim, supported byaffidavits of Mr Singh and Ms Kaur, seeking five forms of relief by way of judicialreview. I now describe these five forms of relief and the essential basis on which theywere sought, adding my own labels for the sake of clarity.Refusal to exclude witnesses vitiating First Decision[10] The First Decision was issued after a hearing at which New Zealand Police asobjector called three witnesses, who described unsatisfactory behaviour on the part ofMr Singh. Prior to that evidence being called, the Pap House sought an orderexcluding witnesses other than the witness being examined. The TDLC refused thatorder, and proceeded to take the evidence of each witness with the others present inthe hearing room.2 Singh v New Zealand Police [2023] NZARLA 131.[11] The Pap House seeks a declaration that the First Decision is unsafe due toprocedural failures, and an order quashing or setting it aside.Request for ruling on Sheard[12] The First Decision was informed by the TDLC's view, having taken theevidence of the three witnesses, that Mr Singh and therefore (given his role asmanager) the Pap House were unsuitable as licence holders. In reaching that view, theTDLC referred to this Court's judgment in Re Sheard, where Holland J observed:3The real test is whether the character of the applicant has been shown to besuch that he is not likely to carry out properly the responsibilities that go withthe holding of a licence.[13] However, the TDLC then said "some 27 years on from that judgment and anew Act we say the assessment is now much wider ".[14] The Pap House seeks a ruling on whether "the real test for suitability" in termsof s 105(1)(b) of the Sale and Supply of Alcohol Act 2012 (the Act) remains as set outin Sheard.Required and therefore ineffective withdrawal of appeal against First Decision[15] The Pap House asserts that the TDLC's requirement of an indication, that theappeal against the First Decision would be withdrawn if the fresh application(excluding Mr Singh) were granted on the papers, amounted to an abuse of power. Itseeks relief in the nature of certiorari or declaration, that the Pap House's withdrawalof its appeal against the First Decision was made under duress and/or as a consequenceof an improper exercise of a statutory power. In essence, an order confirming that itspurported withdrawal of its appeal was ineffective.Variation of issued on-licence[16] As mentioned above, the TDLC's correspondence with the Pap House's agentof September 2022 suggested various amendments to the operating conditions formingthe basis for the Second Application. These included that:3 Re Sheard [1996] 1 NZLR 751 (HC) 758.(a) the on-licence being sought be amended to that of a Class 2 Restaurant,rather than a Tavern;(b) another former manager (that is, other than Mr Singh) not be employedas such; and(c) opening hours and occasions offering live music be reduced.[17] The Pap House submits these amendments were unreasonably sought and wereaccepted under duress. Its statement of claim sought an order varying the on-licenceissued pursuant to the Second Decision, in effect reversing the amendments made toits Second Application.Indemnity and/or increased costs[18] The Pap House further seeks indemnity and/or increased costs.Joinder of the Council as defendant[19] When filed, the Pap House's proceeding named only the TDLC as defendant.By application dated 31 January 2023, the Tauranga City Council (the Council)applied for orders that it be joined to the proceeding, or alternatively granted leave tointervene and be heard. The Council's application observed that the Council hadappointed the TDLC in accordance with s 186 of the Act. The Council submitted thatits intervention was desirable because:(a) given the ordinary position in judicial review that the decision-makerabides the decision of the reviewing court, the Court would then "havethe benefit of a party that is not abiding" its decision; and(b) the Council wished to be heard on matters of jurisdiction and procedure,and "additionally on matters such as the Council's role vis-à-vis[TDLC], and its expectation of committee members when hearingapplications under the Act".[20] For its part, the TDLC indicated by memorandum dated 2 February 2023 thatit wished to be heard in the proceeding, but did not propose to take an active role indefending its decision, and would abide the Court's decision.4 The TDLC submittedthat it could provide assistance to the Court, in particular on factual matters. Ittherefore sought leave to file an affidavit identifying and commenting on any disputedfactual matters, and to be represented at the hearing.[21] Observing the absence of opposition and "the fact that the [TDLC] will not bedefending its decisions" Wylie J considered it appropriate to join the Council to theproceeding as a second defendant, and did so by minute dated 2 February 2023. Atthat time, Wylie J timetabled the filing of further pleadings, of affidavits, and a fixtureto take place on 6 March 2023.[22] On 1 March 2023, the 6 March fixture was rescheduled to take place on9 August 2023, due to scheduling difficulties within this Court at Tauranga.Submissions for the Council[23] Having achieved joinder as a second defendant, the Council offered writtensubmissions disclosing that its stance was that the Court should grant the Pap Houserelief, at least in part.[24] While observing that it did not agree with all of the TDLC's alleged failures,the Council "accept[ed] that procedural failure has occurred, and the ordinary principlethat a remedy ought to follow when a decision-maker has erred in the exercise of astatutory decision should apply". The Council referred in particular to the TDLC'srefusal to make an order excluding witnesses during the hearing leading to the FirstDecision, and "question[ed] whether it was appropriate for the [TDLC] to have soughtthe information or conditions it did" in respect of the September Application.[25] Overall, while noting the potential for the privative clause set out in s 167 ofthe Act to operate as a bar to relief (see further below), it submitted that the most4 In doing so, it cited the approach taken by the Real Estate Agents Authority in Edwards v Hughes[2019] NZHC 2286, [2019] NZAR 1817.practicable resolution of the proceeding would involve an "order/direction that anewly constituted [licensing committee] hear" the Pap House's first application afresh.[26] Thus, while Wylie J was offered the "benefit of a party that is not abiding thedecision of the Court", it transpired that joinder of the Council had the substantiveeffect of adding a voice in favour of the Pap House's application.[27] The question arises whether the Council's participation was necessary. In thatregard, the Council sought guidance "for precedent purposes", submitting that injudicial review proceedings relating to licencing decisions:(a) Licensing committees should do more than abide the Court's decision.(b) In appropriate cases, it is for the territorial authority (here, the Council)to assist the Court on questions of legislative interpretation, jurisdictionand provision of the record of decisions and other materials.(c) The territorial authority is appropriately named as the defendant,because:(i) The territorial authority appoints, administers and manages thelicensing committee. The licensing committee, the members ofwhich are subject to change, is a committee of its territorialauthority.5 Should a costs award be made against the licensingcommittee, this will be paid by the territorial authority.(ii) The licensing committee is functus officio.(iii) The relationship between territorial authority and licensingcommittee is similar to that between professional regulatorybodies and disciplinary decision-makers, where the regulatory5 Sale and Supply of Alcohol Act, s 200(1).body is named to "defend" the decision-maker (except that onoccasion, concessions can and should be made).6Submissions for the TDLC[28] On the question of its role in this proceeding, the TDLC accepted the generalprinciple that, on judicial review, the decision-maker should not become a protagonistbut should abide the Court's decision.7 However, it submitted, citing the Court ofAppeal's judgment in Goodman Fielder Ltd v Commerce Commission, that there is anexception "where considerations of public interest and the effective administration ofan Act arise". 8 The TDLC noted that this exception commonly arises in relation tolocal authorities' consenting role under the Resource Management Act 1991.9 TheTDLC submitted that in light of the Council's position announced following itsjoinder, of supporting the Pap House's application (albeit on fewer grounds), theCouncil's involvement was "most irregular".[29] On the substance of the proceeding, the TDLC submitted that:(a) The privative clause set out in s 167 of the Act requires consideration.As an "exhaustion of remedies" clause, its effect is that until therelevant remedies are exhausted (here, said to be appeals against theTDLC's decisions), this Court is not competent to hear proceedings byway of judicial review.10(b) As the Pap House may yet obtain reinstatement of its appeal against theFirst Decision and leave to appeal the Second Decision out of time,s 167 deprives this Court of jurisdiction to entertain the proceeding.(c) If the Court has jurisdiction despite s 167, its power to grant relief6 Citing Zhao v Legal Complaints Review Officer [2017] NZHC 1561, [2017] NZAR 1760 at [9(a)];and Edwards v Bridge, above n 4, at [35]–[39].7 Secretary for Internal Affairs v Pub Charity [2013] NZCA 627, [2014] NZAR 177 at [27]; andNew Zealand Engineering Union v Court of Arbitration [1976] 2 NZLR 283 (CA) at 284.8 Goodman Fielder Ltd v Commerce Commission [1987] 2 NZLR 10 (CA) at 20.9 See, for example, Frost v Queenstown Lakes District Council [2021] NZHC 1474; andFraser v Central Hawkes Bay District Council [2021] NZHC 2981, [2022] NZRMA 90.10 Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington,2018) at [2.68].would extend to restoration of the Pap House's appeal to the ARLA, orto requiring the ARLA to grant leave out of time to appeal.(d) In any event, the Court should take account of the determination by theARLA of Mr Singh's appeal:(i) In dismissing Mr Singh's appeal, the ARLA sought to clarify therelationship between the decisions in Re Sheard, Nikita and TwoBrothers11 by observing that it does not consider those decisionsto be in conflict, "[r]ather they are examples of the type of issuesthat can be considered under the broad test for suitability."12(ii) More substantively, the ARLA found, in relation to Mr Singh,that:13 The evidence of [the] three police witnesses in particular,established that the appellant's behaviour was irresponsibleand inappropriate. In fact, we go further. Even if the evidencewere as the appellant accepts it was, his conduct in relation towitness A in particular was in our view irresponsible andinappropriate. The other two situations, again on anacknowledged basis, suggest an uncomfortable blurring of thelines between host and licence responsibilities and socialisingwith customers.(e) And in light of the "narrow [and] exceptional"14 nature of the discretionto grant remedies in judicial review, the Court should consider thepotential mootness of the proceeding given the forthcoming expiry ofthe Pap House's 12-month licence granted on 19 September 2022 andthe likelihood of an application for renewal requiring freshconsideration of licensing conditions.11 Two Brothers Wholesale Ltd v Medical Officer of Health [2021] NZARLA 32.12 Singh v New Zealand Police, above n 2, at [58].13 At [73(b)].14 Director of Maritime New Zealand v Survey Nelson Ltd [2011] NZSC 61.Issues for determination[30] The following issues arise, set out in the order in which I intend to determinethem:(a) How should the privative clause set out in s 167 of the Act be appliedin this case?(b) In light of the proper application of s 167, should this Court intervenein respect of:(i) the TDLC's refusal to exclude witnesses from the hearingleading to the First Decision?(ii) the TDLC's interpretation of the test for suitability, appearing toprefer a broader assessment than might be derived fromRe Sheard?(iii) the withdrawal of the Pap House's appeal against theFirst Decision?(iv) the substance of the on-licence granted pursuant to the amendedSeptember Application?(c) What guidance, if any, should this Court offer on the joinder ofterritorial authorities as defendants to proceedings seeking judicialreview of licensing committees' conduct?(d) What costs consequences follow?Application of privative clause[31] Under s 167 of the Act:No review until right of appeal exercisedNo person who has a right of appeal against any decision of the licensingauthority or of a licensing committee is entitled to do any of the followingunless and until that party exercises that right of appeal and the appeal isfinally determined:(a) to make an application for review of that decision under the JudicialReview Procedure Act 2016; or(b) to institute proceedings seeking any writ or order of, or in the natureof, mandamus, prohibition, or certiorari, or a declaration or injunction,in respect of that decision.[32] I accept the TDLC's submission that s 167 is an "exhaustion of remedies"clause. However, such clauses do not necessarily require that all conceivable avenuesof appeal be exhausted before the High Court becomes competent to intervene. Asobserved by the Supreme Court in H (SC 52/2018) v Refugee Protection Officer:15[63] Given the constitutional importance of judicial review, reinforced asit is by s 27(2) of the [New Zealand Bill of Rights Act 1990], the courtsapproach privative clauses cautiously and in particular will give anxiousconsideration to their interpretation and application. As noted in the reasonsof the majority in Tannadyce Investments Ltd v Commissioner of InlandRevenue, judges should be slow to conclude that an ouster provision precludesapplications to the High Court of any kind.[33] In respect of the privative clause relevant to that case, the Court found: 16 What is required is a construction of [the provision] that recognisesParliament's intention to prevent duplicative proceedings but also preservesthe ability of the Court to supervise the exercise of public power and preventinjustice occurring when a statutory process fails because the decision-makeracts unlawfully and an injustice results.[64] In the present case, the error made by the Refugee and ProtectionOfficer in concluding that the appellant had failed to attend the interview,when the evidence available to him showed the appellant was unable to attend,led to the statutory process derailing.15 H (SC 52/2018) v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433 at [63](footnote omitted).16 At [63].[34] The notion of a statutory process "derailing" provides a useful test, to beapplied in determining whether an exhaustion of remedies privative clause such as isset out in s 167 deprives this Court of jurisdiction to intervene.Refusal to exclude witnesses vitiating First DecisionSubmissions for the Pap House and the Council[35] The Pap House's written submissions were set out in an unusually discursiveform in its statement of claim.17 Marshalling the submissions on this point as best onecan, they are that:(a) an order excluding witnesses is a "basic fundamental procedural matterwhen challenging any evidence in any court or tribunal in New Zealand,particularly where the evidence is of the sort of nature that it was in thiscase";(b) the refusal was particularly unusual because the TDLC granted anapplication that the hearing be held in private due to the nature of thecomplaints;(c) the police did not oppose the order;(d) the "prosecution" witnesses adapted to their evidence having heardevidence given and cross-examined;(e) this breach of "natural justice" was such that the Pap House was left ata complete disadvantage.Licensing committee's powers to control process[36] Licensing committees' functions are broad. They are set out in s 187 of theAct, and include the function of considering and determining applications foron-licences.17 G & H Randhawa Ltd v Tauranga District Licensing Committee HC Tauranga CIV-2022-470-140,29 November 2022.[37] Licensing committees are provided with powers referable to those functions.Under s 188 of the Act:A licensing committee has all the powers conferred on it by or under this Actor any other Act, and all powers as may be reasonably necessary to enable itto carry out its functions.[38] These broad powers are supplemented, and arguably refined, under provisionsrelating to the convening of hearings, set out in ss 201 to 211A of the Act. Section 201provides for licencing committees to have the powers of Commissions of Inquiryunder the Commissions of Inquiry Act 1908. Section 203(3) provides for licensingcommittees to hold part of any sitting in private if, having regard to the interests ofpersons appearing and being heard and to the public interest, it thinks it proper to doso.[39] The Court of Appeal has confirmed that s 27 applies to entities like the TDLC.In Combined Beneficiaries Union Inc v Auckland City COGS Committee, the Courtconfirmed that "tribunal or other public authority" is not limited to bodies exercisingan adjudicative function in relation to "rights, obligations or interests protected orrecognised by law".18 Nor should "tribunal or other public authority" be read asconceptually linked.19 Further, s 27(1) should not be interpreted as being limited to"dealing only with actual rights, obligation or interests", it being sufficient that"applicants have the right to make an application and, having made a validapplication, to have that application considered" for s 27 to be engaged.20[40] Relevantly, under s 27(1) of the New Zealand Bill of Rights Act 1990:Right to justice(1) Every person has the right to the observance of the principles ofnatural justice by any tribunal or other public authority which has thepower to make a determination in respect of that person's rights,obligations, or interests protected or recognised by law.18 Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009]2 NZLR 56 at [5] and [13].19 At [13]–[15].20 At [17].[41] The nature of the right to natural justice varies depending on the circumstances.As observed in Joseph on Constitutional and Administrative Law:21Natural justice is but fairness writ large and juridically'.22 The duty to actfairly (or simply "fairness") may substitute as a reference for natural justice.23They are alternate descriptions for a single but flexible concept whose contentis "always contextual".24 The requirements vary according to the power thatis exercised and the circumstances of its use, including the effect of thedecision on personal rights or interests.25 A decision may be allowed to standwhere a breach of natural justice has little or no effect on the applicant'ssubstantive rights.26 The requirements of natural justice are "flexible",27"adaptable",28 and "context specific",29 and cannot be neatly tabulated. "Thisis an area of broad principle, not precise rules."30 Prescribing prescriptiverules of universal application would introduce "a new formulism" – a "recipefor judicialisation on an unprecedented scale".31Analysis[42] The submissions for the Pap House and the Council are based on theproposition that, in proceeding to conduct the hearing leading to the First Decisionwithout making the requested order excluding witnesses, the TDLC breached thePap House's entitlement to natural justice. However, this presupposes that by dint ofthe refusal to exclude witnesses the hearing became unfair. In my view, given the21 Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters,Wellington, 2021) at [25.1].22 Furnell v Whangarei High School Board [1973] 2 NZLR 705 (PC) at 718, quoted with approvalin Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141.23 See Daganayasi v Minister of Immigration, above n 22, at 141 per Cooke J citing Englishauthorities.24 Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [120].25 Birss v Secretary for Justice [1984] 1 NZLR 513 (CA) at 516, Waitemata Health vAttorney-General [2001] 2 NZLR 652 (CA) at [96]; Dorbu v Lawyers and ConveyancersDisciplinary Tribunal HC Auckland CIV-2009-404-7381, 11 May 2011 at [48];Q v Attorney-General [2011] NZAR 625 (HC) at [4]; and Lyttleton v Police [2016] NZHC 22,[2016] NZAR 493 at [35].26 Hirstich v Family Court at Manukau [2014] NZCA 305, [2015] NZFLR 317 at [32]; and W vFamily Court at North Shore [2014] NZHC 2483 at [33].27 Webster v Auckland Harbour Board [1987] 2 NZLR 129 (CA) at 132; Birss v Secretary for Justice[1984] 1 NZLR 513 (CA) at 516; Bennett v Superintendent Rimutaka Prison [2001] 3 NZLR 803(HC) at [63]; and Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [67].28 Bradley v Attorney-General [1988] 2 NZLR 454 (HC) at 478; and Drew v Attorney-General, aboven 27, at [67].29 Carroll v Coroner's Court at Auckland [2013] NZHC 906, [2013] NZAR 650 at [35].30 Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA) at 16. See also Fraserv State Services Commission [1984] 1 NZLR 116 (CA) at 124; and Isaac v Minister of ConsumerAffairs [1990] 2 NZLR 606 (HC) at 630 (counselling against "hard and fast rules").31 R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100 at [31], quotingThomas Poole "Of headscarves and heresies: The Denbigh High School case and public authoritydecision making under the Human Rights Act" [2005] PL 685 at 691, 695, followed in Bovaird vJ [2008] NZCA 385, [2008] NZAR 667 at [53]."context specific" nature of the requirement of natural justice under s 27(1) of theNew Zealand Bill of Rights Act, it is necessary to consider the effect of the TDLCdeclining to exclude witnesses on the evidence that was given.[43] For the Pap House, Mr Pawson submitted that once the first Police witness'evidence was given and cross-examined in the presence of the second and thirdwitnesses, it was then pointless to explore the prospect of collusion with any of them.Mr Pawson submitted that it was "known" that there had been collusion. He relied inthis regard, however, only on evidence emerging during the hearing that the witnessesknew each other. He submitted that it would have been pointless asking if they haddiscussed it. However, this assumes that the witnesses, had they discussed theirevidence as between themselves, would be untruthful. There is nothing to suggestthat, nor indeed that they had in fact discussed their complaints as between themselves.In summary, it was submitted for the Pap House that its position was compromisedbecause the witnesses could hear each other's evidence, but the evidence that wasgiven does not confirm the point.[44] In light of this point, I do not consider it can be said the statutory process"derailed", such that s 167 does not operate as a bar to this ground of review. This isbecause:(a) The Act provides for appeals against licensing committees' decisions tobe conducted by way of rehearing.32 Where such appeals are onquestions of fact, copies of notes of evidence given orally before thelicensing committee are brought before the ARLA.33 But that course issubject to the ARLA's discretion to rehear the evidence of witnesses ifthere is reason to believe the notes are incomplete.34(b) In this case, therefore, the ARLA might have been invited on appeal toorder the re-taking of the three witnesses' evidence; particularly if a32 Section 157(1).33 Section 157(2).34 Section 157(3).proper evidential basis for suggesting collusion between them could bemade out.(c) In the absence of an evidential basis for collusion, such that thePap House is left with its argument of per se unfairness arising from thesimple failure to exclude witnesses and the prospect of successivewitnesses' evidence spontaneously being influenced by what theprevious witnesses had heard, the statutory right to rehearing by theARLA goes as far to achieve redress as any remedy that mightreasonably be contemplated in this Court.[45] This is not to say that it would not clearly have been desirable for the TDLC tohave excluded witnesses from hearing the evidence of others, particularly since it hadbeen persuaded that it was appropriate the hearing should be conducted in private. Thefact that it transpired the witnesses to the conduct of Mr Singh were known to eachother neatly illustrates that the TDLC's refusal to exclude witnesses risks (at least) thehearing becoming unfair.[46] On this basis, judicial review proceedings are prohibited by s 167 in respect ofthis ground for relief.Ruling on SheardSubmissions for the Pap House[47] The Pap House submitted that in describing the appropriate assessment inrespect of applicant suitability as "now much wider" than as outlined in Re Sheard,35the TDLC may have made an error of law. It sought "clarification" whether Sheard isstill good law.Analysis[48] In light of s 167 and the above discussion as to its effect, I do not consider itappropriate to seek to resolve the question the Pap House wishes to raise. The legal35 Re Sheard, above n 3.issue of applicants' suitability in terms of s 105(1)(b) of the Act would requireconsideration following wide-ranging review of the Act's purposes and principles,informed to the extent possible by matters of context that are apt to arise followingappeal through the regular specialist channel of the ARLA.[49] Indeed, of relevance to this case, the question of Mr Singh's suitability hasbeen addressed in the course of his own appeal against the TDLC's judgment. In theevent the ARLA is said to have erred in formulating and applying the appropriate testfor suitability, Mr Singh will have a remedy by way of appeal to this Court on aquestion of law under s 167 of the Act. On such an appeal, the Court will have thebenefit of the ARLA's assessment of the evidence and its observations of practice inthis specialist area to inform its decision-making.[50] In the circumstances I decline to exercise this Court's discretion to issue adeclaration on the point of law in the course of this proceeding.Ineffective withdrawal of appeal against First DecisionSubmissions for the Pap House[51] The Pap House submitted that it was entitled to appeal against the TDLC's firstdecision, under s 157 of the Act. It did so, within the limitation period of 10 workingdays set out in s 155. It had an array of grounds. However, the TDLC's requirementthat the appeal be withdrawn as a condition of consideration of theSeptember Application on the papers amounted to an inducement of the Pap Houseunder duress to forego its appeal right.Submissions for the TDLC[52] The TDLC submitted that it would be open to this Court "to conclude that therewas no procedural impropriety when the [TDLC] enquired as to whether the plaintiffwould be withdrawing its appeal to the [ARLA] as one of a suite of conditions basedon which the [TDLC] was prepared to consider granting an on-licence for a class onerestaurant". The TDLC submitted that the Pap House was free to instead pursue itsappeal against the First Decision.Analysis[53] In my view, the TDLC went further than to enquire whether the Pap Housewould be withdrawing its appeal against its First Decision. Its mention of the appeal,made in the course of correspondence regarding the September Application, was instark terms: "[w]e require an indication that if a new On Licence is granted on thepapers now then the appeal currently before ARLA would be withdrawn."[54] Withdrawal of the appeal was expressly made a condition of theSeptember Application being granted "on the papers".[55] The TDLC's discretion to consider the September Application "on the papers"arose under s 202(1) of the Act, which provides as follows:If no objection to an application is filed within the prescribed time, thelicensing authority or licensing committee concerned may either grant theapplication on the papers or convene a public hearing to consider theapplication.[56] However, the discretion to consider an application on the papers requires to beexercised consistently with the committee's functions under the Act. These functionsdo not extend to determining appeals against the committee's own decisions. Whetheran appeal is or is not outstanding should, in my view, form no part of the exercise ofthe discretion in relation to a subsequent application.[57] It should be noted that by this point, the Pap House had been without its prioron-licence for around seven months. Had the Pap House applied to renew its prioron-licence, rather than leave it to expire in February 2022, it would have had thebenefit of ss 122, 135 and conceivably 152 of the Act, which would have continuedthe licence until at least three months after any licencing committee decision to declinerenewal. But in the absence of a current on-licence, the evidence filed for thePap House to the effect that it was faced with a fait accompli is easily accepted. Itsdecision to withdraw the appeal was made a matter of practical necessity. It shouldnot have been required to do so.[58] In my view, the statutory process "derailed" when the TDLC required theappeal be withdrawn. The question arises, what is the appropriate remedy?[59] On this point, I am not persuaded it is appropriate to declare as requested thatthe Pap House's directors acted under duress when purporting to withdraw its appealagainst the TDLC's First Decision. Further, I observe that at the hearing of thisproceeding on 9 August 2023, it appeared that matters may have moved on since thefiling of the Pap House's statement of claim. I refer in particular, to the ARLA's refusalof Mr Singh's appeal. In light of that outcome, the Pap House may no longer wish topursue its own appeal.[60] Nevertheless, I consider it likely that a declaration by this Court, that the TDLCacted in excess of its powers when requiring the Pap House to withdraw its appeal,will be capable of being called in aid of an application by the Pap House to reinstateits appeal, should it decide that that course is desirable. Therefore, that remedy wouldadequately vitiate the Pap House's entitlement to appeal, without requiring thePap House to do so (or the ARLA to determine an appeal that is not desired).Variation of issued on-licenceSubmissions for the Pap House[61] Reasons for what would in effect be an order varying the on-licence issuedpursuant to the Second Application, so as to approve that application in the form inwhich it was originally made, are difficult to discern. The essence, as outlined above,is that the TDLC acted unreasonably in suggesting the September Application beamended so that it might be granted on the papers.Analysis[62] I accept that other aspects of the TDLC's correspondence with the Pap Houseover its September Application, going beyond the correspondence requiring it towithdraw its appeal, are questionable. I refer in particular to questions it put to thePap House's directors, Mr Singh's wife and parents in law, whether they accepted theimproper behaviours alleged by the three witnesses called by police during the hearingleading to the First Decision. In the context of the fresh application comprised of theSecond Application, where it was proposed that Mr Singh would not be involved inthe Pap House's management, and of the appeal against the First Decision, thequestions at least risked distracting the TDLC with consideration of peripheral issues.[63] However, the amendments to the September Application (set out at [16] above)were all at least notionally connected to the appropriate sale of alcohol under theon-licence being sought. It is by no means clear they were so unreasonably soughtthat it might be suggested the statutory process has "derailed".[64] To the extent the Pap House wishes to contest these conditions, it should nowdo so in the course of its application for renewal of the licence expiring on19 September 2023, or by way of fresh, parallel application.Joinder of territorial authority as defendant in judicial review proceedings[65] The submissions of the Council and the TDLC are set out above.[66] The Council drew in aid the similarity of the relationship, on the one handbetween it as territorial authority and the TDLC as one of its appointed committees,and on the other between professional regulatory bodies and disciplinarydecision-makers. Citing Zhao v Legal Complaints Review Officer36 and Edwards vBridge,37 it submitted that in the case of regulatory appeals and judicial review, theregulatory body is named to "defend" the decision-maker. The Council's submissionsplaced the word "defend" in quotation marks, indicating that it considered beingnamed as a defendant was appropriate, whether or not it intended truly to defend theproceeding.[67] But as Palmer J made clear in Shand v Legal Complaints Review Officer,38having cited Zhao, the primary reason for regulatory bodies on occasion beingpermitted to take an active part in proceedings on appeal or review is not because ofthe particular body's organisational connection to the decision-maker. It is instead toensure that the adversarial system does not lose balance, and that the Court does notlose assistance with one side of an issue, in the absence of a contradictor.36 Zhao v Legal Complaints Review Officer, above n 6, at [9(a)].37 Edwards v Bridge, above n 4, [35]–[39].38 Shand v Legal Complaints Review Officer [2019] NZHC 3105 at [13]–[14].Justice Palmer observed that in that situation generally the Court can, and often would,appoint counsel to assist it. In the context of lawyers' disciplinary cases, such as thatbefore him, the Judge observed that the willingness of the New Zealand Law Societyto assist a court by acting as contradictor involves an extension of its function ofassisting to administer that system.[68] Further, the judgment of Doogue J in Edwards v Bridge does not assist theCouncil's argument. There, the Judge permitted the Real Estate Agents Authority(REAA) to remain as a party to an appeal and cross-appeal involving an agent and herformer client, where one of the REAA's disciplinary committees had made an initialdecision which was appealed to the Real Estate Agents Disciplinary Tribunal.The REAA (not its committee) had been named as a party to the first appeal.Justice Doogue observed that the REAA's intention was to abide, its submissions werenot partisan, it had been named before the Tribunal, and its submissions in particularon an issue having a direct impact on its disciplinary powers would likely better enablethe Court to come to a fully informed decision. Justice Doogue noted also (the relevantcommittee not having been named as a party) that if the relevant regulatory body werenot named, the Court could not direct relief such that the decision-making body wasrequired to comply.[69] Together, Zhao and Edwards do not in my view suggest a preference fordisciplinary bodies to be joined to appeals or judicial review proceedings because ofany requirement that appointed decision-makers strictly abide. Instead, the broaderprinciple that emerges is that parties are appropriately joined where their participationwill support the just determination of the proceeding, because they will either actappropriately as a contradictor (as in Shand) or offer a broader perspective nototherwise available to the Court (as in Edwards).[70] In this regard, I consider the TDLC was correct to note the exception to thegeneral principle that, on appeal or review, the decision-maker should not become aprotagonist but should abide the Court's decision,39 applying where there is no otherparty available to advance considerations of public interest and the effective39 Secretary for Internal Affairs v Pub Charity [2013] NZCA 627 at [27]; New Zealand EngineeringUnion v Court of Arbitration [1976] 2 NZLR 283, 284 (CA).administration of an Act.40 I further note that I was assisted by the TDLC'ssubmissions on the existence and application of s 167, and of the ARLA's decision todismiss Mr Singh's appeal, consistently with this principle.[71] In this case, I did not hear full argument on the functions and respectiveresponsibilities under the Act of the Council as a territorial authority, and the TDLCas one of its appointed licensing committees. I note that the Act provides thatterritorial authorities appoint licensing committees,41 and establish and maintain listsof licensing committee members,42 and that every licensing committee is a committeeof its territorial authority.43 But the Act does not appear to make express provision forterritorial authorities to supervise the activities of its licensing committees.[72] However, I do not consider it necessary for the purposes of this case todetermine the extent to which the Council is empowered to supervise the TDLC'sactivities. This is because it emerged in the course of the proceeding that the Councildid not intend to as a contradictor, and that its submissions did not in my view advancethe consideration of public interest and the effective administration of the Act beyondthe submissions made for the Pap House and TDLC.Indemnity and/or increased costs[73] The Pap House has succeeded in the sense that I intend to issue a declarationin respect of the withdrawal of its appeal, albeit not the declaration it sought. In allother substantive respects, its proceeding in this Court will be dismissed.[74] I do not consider it appropriate to award indemnity or increased costs withouthearing further from the parties in light of the above findings.Result[75] This Court declares that the TDLC acted in excess of its powers whencorresponding with the Pap House on 19 September 2022 in respect of its application40 Goodman Fielder Ltd v Commerce Commission [1987] 2 NZLR 10 (CA).41 Section 18642 Section 19243 Section 200(1)dated 28 July 2022 (the September Application), by requiring that the Pap Housewithdraw its appeal against the TDLC's earlier decision of 22 July 2022 as a conditionof granting the September Application on the papers.[76] The Pap House's claim for costs is deferred, for determination on the papersupon the filing and service of memoranda of no longer than three pages (excludingschedules):(a) for the Pap House, within 15 working days of this judgment;(b) for the TDLC, within a further 10 working days of the Pap House'ssubmissions; and(c) for the Council, within a further 10 workings days of the TDLC'ssubmissions.[77] The Pap House's other claims for relief are dismissed.[78] I also make the following orders:(a) an order suppressing the names, addresses, occupations or identifyingparticulars of the three police witnesses referred to at paragraph [10]above; and(b) an order that the file not be searched without the permission of a Judge._____________Johnstone J