LINWOOD FOOD BAR LIMITED v DAVISON AND ORS [2014] NZHC 2796

LINWOOD FOOD BAR LIMITED v DAVISON AND ORS [2014] NZHC 2796 [11 November 2014]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2014-409-000562[2014] NZHC 2796BETWEEN LINWOOD FOOD BAR LIMITEDAppellantAND JENNIFER DAVISONDefendantAND STUART JOYSecond RespondentAND PETER SHAWThird RespondentHearing: 11 November 2014Appearances: T J MacKenzie and N M McSparron for AppellantH F McKenzie for RespondentsJudgment: 11 November 2014JUDGMENT OF DUNNINGHAM J[1] This is an appeal of a decision of the Alcohol Regulatory and Licensing Authority, given on 1 August 2014, declining the appellant's application for renewalof its on licence.[2] A preliminary issue has arisen for determination because the respondents have filed four further affidavits on the second to last working day before hearing and they now apply pursuant to s 138(8) of the Sale of Liquor Act 1989 and r 20.16 of the High Court Rules to have this further evidence admitted.[3] The four affidavits comprise:(a) an affidavit of Ms Jennifer Davison who is an Alcohol Licensing Inspector. Her evidence discusses a graduated response model that isused when dealing with intoxication incidents and non-compliance. Itresponds to the appellant's submissions and, in particular, the concern that Mr Zhang overrode the duty manager. It adopts some attached evidence of Fiona Proudfoot, another Alcohol Licensing Inspector, and it outlines what was observed on two further visits to the premises after the hearing of the application; one on 20 August 2014 and one on 30 August 2014.(b) An affidavit of Constable Joy which primarily focuses on statistics obtained in the 12 months prior to Richey Bar being closed down and briefly describes the incidents that were recorded in those Police statistics.(c) An affidavit of Tania Herewini, another police constable, who speaks of an incident on 22 August 2014 when she interviewed an intoxicated driver who said he had been drinking at Richey Bar; and finally(d) An affidavit of Carl Christensen, again a police constable, who discusses an incident which occurred on 24 August 2014.[4] Ms McKenzie, in support of the application to admit this evidence, says that it primarily falls into the category of updating evidence which is generally allowed.It was filed in response to the appellant's submissions which were received threedays beforehand. She also says the respondents were not required to provide the evidence earlier, even though most of the affidavits were sworn on 4 September, because they were really responding to matters raised in submissions and no timetabling orders had been made requiring filing evidence at an earlier date.[5] Mr MacKenzie, for the appellant, in response says much of the evidence is not updating evidence, some of the evidence lacks cogency, particularly because it is hearsay evidence, and to some extent he is prejudiced by its late provision. However, his client wishes the hearing to proceed, and a practical response would be to admit updating evidence where the material is within the personal knowledge of the deponent to be led in evidence, and that witness cross-examined today.[6] The legal principles applying are clear. The approach to fresh evidence in such appeals has been discussed in a number of cases and a recent explanation of the principles is given by Duffy J in the decision of General Distributors Ltd and Anor vDe'ath and Anor.1[7] Section 137(6) of the Act provides that every appeal is to be by way of rehearing and s 138(8) provides that the Court has full discretionary power to hear and receive further evidence on a question of fact, either by oral evidence or by affidavit.[8] In General Distributors (albeit Her Honour is referring to the parallel provisions in the 2012 Act which applied in that case), Duffy J says:[18] I consider that the exercise of the discretion in s 161 of the 2012 Act to admit fresh evidence is best guided by the principles for the admission of fresh evidence that are applied under r 20.16. No one argued that the exercise of the discretion in s 161(4) should be approached more liberally than would be the case under r 20.16.[19] The test under the High Court Rules for the admission of fresh evidence on appeal is well established, the Court must be satisfied that:(a) The fresh evidence is cogent;(b) Likely to be material; and(c) Could not have reasonably been available at the time of the first hearing.[9] To that, I would add, that in the present circumstances I must also consider the issue of prejudice to any party resulting from the fact that the application to admit such evidence has been made informally on the second to last working day before hearing and with no opportunity to respond to that evidence before the hearing itself.[10] Bearing in mind those principles and addressing each affidavit in turn, the affidavit of Ms Davison primarily concerns evidence which could have been given at the original hearing, or which I consider is not particularly cogent because it either1 General Distributors Ltd and Anor v De'ath and Anor [2014] NZHC 1485.effectively makes submissions in response to the appellant's submissions, or it adopts evidence of Ms Proudfoot who is not present to give evidence.2[11] I consider that Mr MacKenzie's proposal for dealing with her evidence is a pragmatic and sensible way forward. Ms Davison can give oral evidence of the two incidents on 20 August 2014 and 30 August 2014 and can be cross-examined on it. However, the written affidavit evidence is not admitted and is to be withdrawn from the file for these proceedings.[12] In respect of the evidence of Constable Joy, I accept Mr MacKenzie'sevidence that the statistical evidence provided lacks cogency and is, at least in part, hearsay evidence. It is also evidence which is not strictly updating evidence. However, the incident on 25 August 2014 is, on the face of it, updating evidence. I will allow evidence on that to be led and Constable Joy can be cross-examined on that. The affidavit itself is not admitted and is to be withdrawn.[13] In respect of Constable Herewini's evidence, I accept that is hearsayevidence, it is not cogent and that affidavit is also not admitted into evidence.[14] In respect of Constable Christensen's evidence, that is admitted into evidencebut cross-examination of it will be allowed. I do consider that it falls into the category of updating evidence.Solicitors:Wynn Williams, ChristchurchRaymond Donnelly & Co., Christchurch2 Although the respondents offered to call her in person to give this evidence orally.