KAI PAI KAITI TRUST v KAITI CLUB HOTEL LIMITED [2018] NZHC 1332

KAI PAI KAITI TRUST v KAITI CLUB HOTEL LIMITED [2018] NZHC 1332 [7 June 2018]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2018-485-00028[2018] NZHC 1332UNDER The Sale and Supply of Alcohol Act 2012(the Act)IN THE MATTER Of an appeal under Section 162 of the Actagainst a decision of the Alcohol Regulatoryand Licensing Authority to grant orderspursuant to Section 153(3) of the Actconcerning the "Kaiti Sports Bar".BETWEEN KAI PAI KAITI TRUSTAppellantAND KAITI CLUB HOTEL LIMITEDRespondentHearing: 7 June 2018Appearances: G Hewison and C Leauga for the AppellantR Davies and K Shaw for the RespondentJudgment: 7 June 2018ORAL JUDGMENT OF POWELL JSolicitors:Te Mata Law Ltd, AucklandHarkness Henry, HamiltonCounsel:Dr G Hewison[1] The Ka Pai Kaiti Trust ("the Trust") has appealed a decision of the AlcoholRegulatory and Licensing Authority ("Licensing Authority").The Decision Appeal Against[2] The Licencing Authority decision, issued by way of a minute dated 19December 2017, followed a decision of the Gisborne District Licencing Committeedeclining an application for the renewal of an on-licence by the respondent, Kaiti ClubHotel Limited ("the Hotel"). The Hotel appealed that decision to the LicensingAuthority and also sought orders under s 153(3) of the Sale and Supply of Alcohol Act2012, seeking a stay or suspension of the Licencing Committee decision pendingdetermination of the substantive appeal.[3] In making its decision the Licensing Authority reviewed the leading authorityon such applications, the decision of Justice Hansen in Cats Niteclub (1991) Limitedv Police.1 The Licensing Authority noted that the evidence provided by the Hotel insupport of the application was weak, and that not only the Trust but also the Policeand the Medical Officer of Health had raised concerns with regard to the operations ofthe premises. The Licensing Authority however nonetheless concluded at [20] of itsdecision:Given the wide-ranging discretion of the Authority under s 153(3), on balance,the Authority is satisfied that the stay of the DLC's decision should be grantedpending the outcome of the appeal. As the appellant's licence is due to expireon New Year's Eve, and the appeal is not able to be heard before the upcomingChristmas interregnum (and is unlikely to be able to be heard in the next fewmonths), the Authority is seized of the fact that the consequences of the appeal,should it be allowed, are such it would be unjust not to allow the stay. This isnot only for the appellant, but for any staff reliant on the appellant. TheAuthority notes, however, that but for this, the Authority would not have beensatisfied with the evidence set out in Ms Nagra's affidavit alone. In othercircumstances, without more, the Authority would have likely declined theapplication.[4] As Mr Hewison noted on behalf of the Trust during the hearing before me thestay is a source of frustration for the Trust as not only was it granted in the first place,it has now been in place for some six months. The substantive appeal has yet to takeplace and indeed is not scheduled to occur until 6 July 2018. Even if the decision of1 Cats Niteclub Limited v Police [1996] 3 NZLR 581 (HC).the Licencing Committee is upheld by the Licensing Authority if a subsequent appealis filed the stay may remain in place for some time to come.Approach to Appeal[5] With regard to the present appeal there is no dispute that an appeal from adecision of the Licensing Authority is pursuant to s 162(1) of the Act and is limited toquestions of law. As Justice Gendall stated in Christchurch Medical Officer of Healthv J & G Vaudrey Ltd:2This is an appeal pursuant to s 162 of the Act. It is limited to points of lawalone. This Court will not interfere with a decision unless it can be shown thatthe decision maker erred in law, accounted for irrelevant matters, failed toaccount for relevant matters or was plainly wrong. Factual challenges,whether raised squarely or obliquely, will not be entertained on appeals of thiskind save to the extent that they are capable of establishing that the decisionappealed is plainly wrong. This is necessarily a very high threshold.The Case for the Trust[6] In this case the Trust submits that the error of law made by the LicensingAuthority was to misapply the test established in the Cats Niteclub decision.Specifically, Mr Hewison submits, that the effect of Hansen J's judgment was that theLicensing Authority cannot exercise a discretion to grant a suspension or stay under s153(3) unless the application was supported by a "full affidavit". The Trust submitsthat in this case that requirement was not followed, and relies specifically on theLicensing Authority's decision where it noted that while an affidavit had been filed insupport of the Hotel's application, that evidence was "meagre at best". The LicensingAuthority went on to note:3The evidence before the Authority to support the submission that if thisapplication is not granted pending the appeal the appellant will be placed inserious financial difficulty and will likely go into liquidation, or thatemployees will lose their jobs, is weak.[7] Mr Hewison submitted that for the Licensing Authority to then go on to grantthe suspension of the Licencing Committee's decision in such circumstances, raised aserious issue given the legislation, unlike its predecessors, is clear that a suspension or2 Christchurch Medical Officer of Health v J & G Vaudrey Ltd [2016] 2 NZLR 382 at [17].3 At [16].stay is not given as of right as it was under the earlier legislation, and the effect of theLicensing Authority's decision is therefore to set a very low bar for such decisions.Discussion and Analysis[8] As Ms Shaw for the Hotel submits however, the error alleged is not an error oflaw. It is clear that in Cats Niteclub Hansen J simply provided guidance for applicantsin a case where it appears no evidence in support had been filed in advance. It ishowever wrong to suggest, both in terms of the language used by Justice Hansen orindeed the proper construction of s 153(3), that his comments could, in any way, fetterthe discretion of the Licensing Authority. First, as Ms Shaw noted, Hansen J himselfobserved that the discretion given under the section was very wide. Hansen Jobserved:4There are no restrictions on the exercise of that discretion. If Parliament hadwished to limit the discretion of this Court in any way it would have done so.Indeed, the Act makes it clear that this Court, even of its own motion, maysuspend the order. That stresses, to my mind, the wide ranging nature of thediscretion.[9] Secondly, the suggestion that His Honour's comments regarding the need fora full affidavit could amount to some sort of legal fettering of the discretionimmediately leads into an analysis of the evidence. The Licensing Authority did notsay there was no evidence, nor indeed did the Licensing Authority use the term "fullaffidavit". On the contrary the Licensing Authority undertook an assessment of theevidence that was before it. To imply some sort of requirement for a "full affidavit"into the discretion requires this Court to take a quantitative or qualitative assessmentof the evidence that was before the Licensing Authority in order to form a view onwhat evidence may be necessary or appropriate in the circumstances of the decision.These are clearly factual matters rather than a legal test.[10] In this case there was, as noted, evidence in support of the application beforethe Licensing Authority. The Licensing Authority properly considered the mattersraised against the other relevant considerations, including the opposition of the Trust,in making its decision to grant the relief sought by the Hotel. This was the correct4 At page 584.approach for the Licensing Authority to take. As Ms Shaw pointed out, rather thanidentifying an error of law the Trust is really taking issue with the LicensingAuthority's weighing of the facts. Quite clearly the sufficiency of the evidence wasentirely a matter for the Licensing Authority, given it was not suggested that there wasnot in fact evidence in support of the application that could be taken into account.[11] Taken together, I have no hesitation in confirming the Licensing Authoritycorrectly applied the law in exercising its discretion under s 153(3) and as a result theappeal must be and is dismissed.[12] The Hotel sought costs on the appeal. If these cannot be agreed within onemonth of the delivery of this judgment I will determine the issue following the filingof memoranda. I would urge the Hotel to take into account the circumstances thatMr Hewison noted at the outset, that the Trust is a community group and noting itsreasons for bringing the appeal, notwithstanding, as will be clear from my judgment,that it did not have any prospect of success._______________________________Powell J