MEDICAL OFFICER OF HEALTH (FOR THE MANAWATU HEALTH DISTRICT) v G & B HASLER LIMITED [2017] NZHC 1890

MEDICAL OFFICER OF HEALTH (FOR THE MANAWATU HEALTH DISTRICT) v G & B HASLERLIMITED [2017] NZHC 1890 [9 August 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2017-404-1176[2017] NZHC 1890UNDER the Sale and Supply of Alcohol Act 2012IN THE MATTER of an appeal pursuant to s 162 of the Actagainst the decision of the AlcoholRegulatory and Licensing Authority inrespect of premises situated at 8 BarraudStreet, Dannevirke, known as DannevirkeNew World.BETWEEN MEDICAL OFFICER OF HEALTH (FORTHE MANAWATU HEALTH DISTRICT)AppellantAND G & B HASLER LIMITEDRespondentHearing: 7 August 2017Counsel: C P Browne and R J Sussock for AppellantI J Thain and I E Scorgie for RespondentA W Braggins for Proposed IntervenerJudgment: 9 August 2017JUDGMENT OF CHURCHMAN J[1] The appellant has appealed a decision of the Alcohol Regulatory and LicensingAuthority (ARLA) with the notice of appeal being dated 12 June 2017.[2] Pursuant to r 20.8(1)(a) of the High Court Rules, the appeal should have beenfiled in the Wellington Registry but was filed in the Auckland High Court "to ensurethe appeal was filed in time".[3] The respondent challenged whether the appeal had been brought in time, bothon the basis that the appeal was served at 5.01 pm and that the email address that theappeal was sent to was not technically an address for service, as that phrase is used inr 20.6 of the High Court Rules.[4] On 22 June 2017 the respondent filed a document entitled "Notice ofappearance of G & B Hasler Limited". The first paragraph in that document said:G & B Hasler Limited considers that this proceeding was brought out of time(in terms of HCR 20.4).[5] By interlocutory application of 23 June, the appellant sought orders extendingthe time for filing and serving of the appeal and costs. An affidavit of Dr Robert PeterWeir dated 20 June 2017 was filed in support of the application, along with an affidavitof service.[6] On 29 June 2017, the respondent filed a notice "Notice of opposition on behalfof G & B Hasler Limited against extension of time for filing and service of notice ofappeal". The operative part of the document said that the respondent "Does notconsent to the making of the order numbered 1(a) in the application". The notice ofopposition also opposed the application for costs.[7] The grounds upon which the notice of opposition was made included "Theappellant is seeking an indulgence from the Court in circumstances where there is noreasonable explanation for the appellant's failure to duly serve the appeal within thetime allowed".[8] By notice dated 27 June 2013, Pavan Sharma Raglan Limited and GeneralDistributors Limited filed an application for leave to join these proceedings asintervener.[9] By notice dated 30 June 2017, the appellant opposed the intervener'sapplication to be joined.[10] The matter became before Hinton J in the High Court at Auckland on 4 Julyand she issued a Minute on 7 July transferring the matter to the Wellington registry.Paragraph [3] of that Minute said:There are a number of issues to be dealt with at a case management conferenceif counsel do not sort them in the meantime [11] Counsel for the respondent had filed a memorandum dated 30 June 2017 priorto the case management conference before Hinton J.[12] That memorandum made it clear that the respondent did not accept that therespondent's email address was "the address for service stated in the proceeding towhich the appeal relates for the purposes of r 20.6(2)". The memorandum also saidthat the fact that the email was sent at 5.01 pm meant that it must be treated as havingbeen served the following day and was one day out of time.[13] At paragraph 11 of that memorandum the respondent's counsel had said:As set out in paragraph 1.1 of that notice of opposition, the respondent'sposition is that it does not consent to an extension of time being granted. Therespondent will simply abide the Court's decision on that matter. However,the respondent does oppose the appellant's request for an order that therespondent pay the appellant's costs of the application.[14] This was a modification of the position set out in the notice of opposition dated29 June 2017 where the respondent had asserted that there was " no reasonableexplanation for the appellant's failure to duly serve the appeal within the timeallowed".[15] That ground of opposition was not addressed in the respondent's memorandumof 30 June 2017, or the subsequent memorandum of 4 August 2017.[16] In paragraph 7 of the memorandum of 4 August 2017, the respondent said:The respondent will simply abide the Court's decision on whether to grant theextension of time that the appellant requires.[17] In paragraph 8 the respondent said:However, the respondent opposes the appellant's request for an order that therespondent pay the appellant's costs of the application. That is because theappellant's requirement for an extension of time is entirely of the appellant'sown making and the respondent does not oppose the appellant's applicationfor that extension. The appellant's request for costs ought to be dismissed.[18] The claim that the respondent has "not opposed the appellant's application forthat extension" is not an accurate representation of the respondent's position. Asmentioned, in the memorandum of 29 June 2017 the respondent made it clear that itdid not consent to the making of an order for extension of time and, in relation to thecosts application, stated the grounds for its opposition were " there is no reasonableexplanation for the appellant's failure to duly serve the appeal within the timeallowed".[19] The affidavit of Dr Robert Peter Weir dated 20 June 2017 and filed in supportof the application for extension of time for filing and service of the notice of appealclearly explains how and why the appeal came to be filed and served on the ALRAwithin the prescribed time limit but served on the respondent by email one minute late.That affidavit was filed and served on 23 June 2017. From that point, it was unrealisticfor the respondent to assert that there had been "no reasonable explanation for theappellant's failure to duly serve the appeal within the time allowed".[20] In paragraph 7 of the memorandum of counsel dated 4 August 2017, therespondent has said that it will abide the Court's decision on whether to grant theextension of time. Accordingly, I grant that extension.[21] In relation to the application for costs, Mr Browne relied on the Court ofAppeal decision in My Noodle Limited v Queenstown Lakes District Council asauthority for the proposition that, notwithstanding the application for extension of timerequired a small indulgence, it must have been obvious to the respondent that anextension of time would have been granted and that resources would have been savedif consent had been given.1 The Court said that the respondent's approach to the issuecaused material extra expense unnecessarily.1 My Noodle Limited v Queenstown Lakes District Council (2009) 19 PRNZ 518.[22] Mr Thain for the respondent opposed the application for costs. At paragraph12 of his memorandum of 30 June he said:The need for an application for an extension of time (in terms of s 166 of theAct and High Court Rule 20.4(3)(a)) arose simply because of delay by theappellant, preparation of an unnecessarily prolix notice of appealinappropriately seeking general declarations and relief in the nature ofadvisory opinions, and then (apparently) error by the appellant's solicitor.[23] In the memorandum of 4 August, the respondent added to that by saying:That is because the appellant's requirement for an extension of time is entirelyof the appellant's own making. And the respondent has not opposed theappellant's application for that extension.[24] In the case of PAE (New Zealand) v Brosnahan the Court of Appeal dealt withan application for extension of time to file a memorandum supporting a High Courtjudgment.2 That application had been opposed and although the Court did not makean award of costs against the respondent it said:However, we signal that in future cases where an opposition is based onsimilarly flimsy grounds, we may well award costs to an applicant, eventhough it is seeking the Court's indulgence.[25] That case was referred to by the Court of Appeal in its subsequent decision inMy Noodle Limited v Queenstown Lakes District Council where costs were awardednotwithstanding the fact that the application in question involved an indulgence.[26] Mr Thain sought to distinguish the decision in My Noodle Limited vQueenstown Lakes District Council and said that the respondent in this case had notopposed the application for an extension. He also said that because the applicationwas served one minute past five the applicant would have had to make an applicationfor extension in any event.[27] This was a case where a request for extension of time was inevitably going tobe granted. While, by the time the matter came for hearing at the case managementconference, the respondent's position had changed to the point where it abided theCourt's decision on the extension application that was not its initial position.2 PAE (New Zealand) v Brosnahan (2009) 19 PRNZ 496.[28] I accept the appellant's submission that it has been put to some unnecessaryexpense as a result of the position initially adopted by the respondent. This appears tobe a case that falls within the warning given by the Court of Appeal by PAE(New Zealand) v Brosnahan in that the initial opposition by the respondent was basedon flimsy grounds and, at least by 23 June, it became untenable for the respondent toassert that there was " no reasonable explanation for the appellant's failure to dulyserve the appeal within the time allowed".[29] Accordingly, I award the appellant costs on the interlocutory application forextension of time against the respondent on a 2B basis.Application to intervene[30] The appellant opposed the application of Pavan Sharma Raglan Ltd andGeneral Distributors Ltd to join the appeal as intervenors.[31] In paragraph 15 of counsel's memorandum of 2 August 2017 it was claimedthat the proposed intervenors had not established grounds for granting of leave tointervene and it was submitted that:The delay and costs associated with permitting any intervention will seriouslyprejudice the Appellant as well as create an impression of unfairness in forcingthe Appellant to respond to more than one party whose interests are aligned.[32] In the notice of application dated 27 June 2017, the intervenors relied on thegrounds that their rights were directly impacted upon and they referred to an appeal3which was said to raise similar questions and which would be impacted on andpossibly determined by the ultimate decision in this case.[33] The notice of application noted that the appeal sought broad relief in the formof declarations which were said to seek to establish policy directives that would bindDistrict Licensing Committees. It also referred to the fact that the appellant's appealwas developed in consultation with other Medical Officers of Health and raised issuesof public importance.3 Pavan Sharma Ragland Ltd v Waikato District Licensing Committee ARLA 337472/2017.[34] Counsel for the appellant accepted that this case did raise issues of publicimportance. He accepted that the decision could affect Pavan Sharma Raglan Ltdalthough submitted that the effect was no more than would be on any other operator.[35] I am satisfied that the proposed intervenors do have an interest sufficient tojustify them being joined to these proceedings as intervenors.[36] I believe that the appellants concerns as to potential effects of delay can beadequately met by imposing conditions on the intervenors.[37] Mr Braggins for the intervenors confirmed that any legal submissions onbehalf of the two intervenors would be joint submissions and would be no more than15 pages in length. He also undertook not to duplicate issues covered in submissionsby other parties.[38] He indicated that he was prepared to restrict his oral submissions at any hearingto three quarters of an hour duration.[39] Accordingly, leave to intervene is granted on these terms.Schedule 6 matters[40] The appellant requests that this matter be heard urgently. The respondentdisagrees.[41] Mr Browne for the appellant refers to the cases of Christchurch MedicalOfficer of Health v J & G Vaudrey Ltd and J & C Vaudrey Ltd v Canterbury MedicalOfficer of Health and said that the progress of this case through the High Court andCourt of Appeal did cause delays in the processing of applications.4 It was suggestedthat if the appeal in the present case was successful, some applicants for licences mayhave to change their way of operating.4 Christchurch Medical Officer of Health v J & G Vaudrey Ltd [2016] 2 NZLR 382 and J & CVaudrey Ltd & Anor v Canterbury Medical Officer of Health [2017] 2 NZLR 334.[42] Mr Thain noted that the fact that the appellant has filed an appeal in the presentcase did not mean that the law is currently uncertain and he said that cases waiting tobe heard by the District Licensing Committees can and should be determined on thebasis of the existing relevant decisions.[43] I am not persuaded that there is any particular aspect of this case that requiresurgency. I accept Mr Thain's submissions that the applications will continue to beprocessed in accordance with the law as it stands at the moment.[44] In terms of the duration of the hearing there seemed to be common agreementthat, given that I have granted the application by the intervenors to intervene, that atwo day hearing is appropriate.[45] There was agreement that the appeal be categorised as a category twoproceeding for the purposes of r 14.3.[46] There was also agreement that the appeal is to proceed as determined byr 20.8(1) in the Wellington Registry.[47] There was agreement that the appellant would not be required to pay securityfor costs.[48] As to whether the notice of appeal contains sufficiently detailed points onappeal, the parties agreed to confer and Mr Thain indicated that he would engage withcounsel for the appellant to attempt to ascertain common ground. If, following thatengagement, the respondent still wishes to advance the proposition that the notice ofappeal is unnecessarily prolix or otherwise inappropriate, then that can be the subjectof further application.[49] It was agreed that the appeal did not involve any issues requiring service onthe Solicitor-General nor does an amicus curiae need to be appointed.[50] In terms of timetable it was agreed:(a) that the appellant would file and serve, not later than 25 working daysbefore the hearing, a common bundle of paginated and indexed copiesof all relevant documentation as set out in para 18.4 of thememorandum of 2 August 2017 filed on behalf of the appellant;(b) that if any party insists on including a document in the common bundleeven though another party objects to its inclusion, on the ground that itis a unnecessary or irrelevant, the objection will be recorded for thepurposes of any award of costs;(c) that the appellant will file and serve the appellant's submission no laterthan 20 working days before the hearing;(d) the appellant's submission will comply with the requirements in cl 11of Sch 6;(e) the respondent will file and serve submissions meeting therequirements set out in cl 11 of Sch 6, not later than 10 working daysbefore the hearing;(f) the intervenor will file and serve submissions not later than fiveworking days before the hearing;(g) the appellant will prepare for the hearing a bundle of any authoritiesreferred to in the submissions of the parties if they parties consider theyought to be produced to the court;(h) one copy of each document will be filed with the court.[51] It was agreed there was no reason for the appeal to be heard by a full Court.[52] It was agreed that no additional directions were required.Churchman JSolicitors:Wilson Harle, Auckland for AppellantDLA Piper for Respondent