MEGA TRADE (AKL) LIMITED AND ANOR V THE COMMISSIONER OF POLICE HC AK CIV 2009-404-5128

MEGA TRADE (AKL) LIMITED AND ANOR V THE COMMISSIONER OF POLICE HC AK CIV 2009- 404-5128 3 September 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2009-404-5128BETWEEN MEGA TRADE (AKL) LIMITED Appellant AND GRACE CHANG Second Appellant AND THE COMMISSIONER OF POLICE Respondent Hearing: 3 September 2009 Appearances: J Wiles for appellants Ms Singh for respondent Judgment: 3 September 2009JUDGMENT OF ALLAN JSolicitors/counsel : J Wiles PO Box 941, Auckland Crown Solicitor, Auckland[1] The appellants appeal against the decision of the Liquor Licensing Authority suspending the first appellant's on-licence for 14 days, and suspending the second appellant's general manager's certificate for six weeks. Pending the hearing of these appeals, the appellants have applied for a stay of the suspensions, which in terms of the Authority's decision take effect on 7 September 2009. [2] The Authority itself, as is customary, abides the decision of the Court in respect of the stay application, but the application is opposed by the respondent. [3] The application was listed before me in the Duty Judge List. Unfortunately very little time has been available, given the length of the mentions list and the fact there is a firm fixture to follow. In those circumstances, I have been able only to devote limited time to the application. It is unfortunate in some respects that counsel have been unable to prepare written synopses of argument, given in particular that Ms Singh's approach for the respondent has necessarily involved a quite detailed analysis of the decision and called for close examination of precisely what occurred during the course of the hearing before the Authority. I have been hampered by the absence of a written argument; however I note that Ms Singh only received this file yesterday. [4] As will emerge, the fact I have had very little time to consider the matter forms part of my conclusion that the appeal for a stay must be granted. [5] The approach to such applications is not in dispute. In Cats Niteclub (1991) Ltd v Police [1996] 3 NZLR 581 John Hansen J said that a stay is unlikely to be granted unless the Court is satisfied that the appeal is bona fide and has some substantive merit, and unless it could be shown it would be completely unjust not to allow a stay. [6] That approach was followed by Salmon J in Three Bros v Rotorua District Licensing Agency HC ROT M76/99 18 August 1999. The approach simply reflects the normal principle applicable to an application for a stay of any order pending the outcome of an appeal.[7] I have had no opportunity of reading the file, and in particular, have been able to skim read only such parts of the Authority's decision as were referred to me by counsel. [8] Mr Wiles advises the Court that his appeal is based upon three primary grounds. The first is as to the Authority's conclusion that breaches of the conditions of the licences had been established. Here Mr Wiles frankly concedes that he is faced with the task of persuading the Court to interfere with credibility findings made by the Authority. In view of the fact that s 139 of the Act confines the appeal to questions of law, that aspect of the appeal plainly faces some obstacles. Were that the only ground for appeal then there might have been an issue as to whether the appeal has sufficient merit to justify the grant of a stay. But there are two further matters. Mr Wiles complains of the way in which the Authority has, on his argument, apparently taken into account the manner in which the appellants conducted their defence before the Authority in determining whether any sanction ought to be imposed in the case of breaches which tend to fall towards the lower end of the scale. [9] Ms Singh has endeavoured to persuade me that Mr Wiles has misread what the Authority actually said on that point. I am unable to determine the strength of Mr Wiles' argument. It seems that it would be necessary at the hearing of the appeal to consider not only the full text of the decision, but also to review aspects of the record, and to consider what, if anything, was said during the course of the hearing which might bear on Mr Wiles' argument. But the appellants appear to have at least a tenable argument on that score, given the language used by the Authority in the decision. [10] Mr Wiles' third argument is concerned with the fact that the appellants had recently appeared in respect of a separate complaint, where the Authority had imposed a period of suspension. The fact of that previous appearance and the suspension is referred to by the Authority at the outset of its decision. Although there is no further reference to it at the end of the decision, when the Authority considered what penalty to impose in the present case, it is inevitable that thisexperienced Authority would have taken into account, or arguably is likely to have taken into account, the suspensions imposed on the previous occasion. [11] For present purposes the important additional factor is that the suspensions imposed on the first occasion were subsequently quashed in a judgment given by Wylie J on 12 August 2009. That judgment was delivered after the decision presently under appeal. [12] It is in my view arguable on behalf of the appellants, that had the Authority known at the time at which the penalties were imposed in the present case that the High Court had quashed the first suspensions, a different, lesser penalty might have been imposed. [13] In my opinion the second and third arguments which Mr Wiles advances in this Court are at least tenable, and meet the test proposed by John Hansen J in Cats Niteclub. The second limb of the test propounded in that case requires the appellants to establish that it would be completely unjust not to grant a stay. It is plain it would be unjust, having regard to the fact the period of suspension is to commence on Monday next 7 September 2009, and there is no prospect that this Court could hear the appeal prior to that or at any time during the period of the suspension concerned. Indeed, there is currently a fixture for 10 December 2009. [14] Accordingly, if a stay is not granted, the appeal will be rendered nugatory, in that even if successful at the hearing of the appeal, the appellants will have served the period of suspension imposed by the Authority. [15] For these reasons I grant the application for a stay. The periods of suspension imposed by the Authority in its decision of 3 August 2009 are stayed until this Court releases a decision on the substantive appeal, or until further order of the Court.C J Allan J