THE GRAND HOTEL AWAROA LTD & JOHNSON v NZ POLICE [2016] NZHC 269

THE GRAND HOTEL AWAROA LTD & JOHNSON v NZ POLICE [2016] NZHC 269 [25 February 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-2483[2016] NZHC 269UNDER Section 159 of the Sale and Supply ofAlcohol Act 2012IN THE MATTER of an appeal against a decision of DistrictCourt Judge J J Weir and AuthorityMember Mr R S MillerBETWEEN THE GRAND HOTEL AWAROALIMITEDFirst AppellantAND BONNIE DAWN JOHNSONSecond AppellantSAMUEL RICHARD MCERLEAN onbehalf of THE NEW ZEALAND POLICERespondentHearing: 24 February 2016Counsel: P F Chambers for AppellantsS McColgan for RespondentJudgment: 25 February 2016JUDGMENT OF DUFFY JThis judgment was delivered by me on 25 February 2016 at 2.15 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors:Henley-Smith Law, Glen EdenMeredith Connell, AucklandCounsel:Paul F Chambers, Barrister, Auckland[1] The Grand Hotel Awaroa (Hotel) and Ms Johnson1 are appealing against a decision of the Alcohol Regulatory and Licensing Authority (the Authority) to refuse an application by Mr B J Hart to appear as a 'pro bono' agent for them at a hearingbefore the Authority to determine whether their legal authority to sell alcoholic beverages should be suspended.[2] The issue for determination in this appeal is whether the Sale and Supply of Alcohol Act 2012 gives persons who are neither a party in a proceeding before the Authority nor counsel a right to appear and be heard as agents of someone who is a party in the proceeding.Factual background[3] The first appellant, the Hotel, is the subject of an application pursuant to s 280 of the Sale and Supply of Alcohol Act for the suspension of its on-license. The second appellant, Ms Johnson, is the subject of an application for the suspension ofher manager's certificate under s 285 of the same Act.[4] Their case was originally set down for hearing on 1 July 2010, at which timeMr Hart attempted to appear as a 'pro bono' agent for both respondents, as they werethen. He argued that the Authority was deemed to be a Commission of Inquiry2 and that the respondents were therefore entitled to appear before the Authority either in person, or by their counsel or agent.3 Mr Hart further argued that the respondents were not required to seek leave from the Authority in order for them to be represented in this manner.[5] The Authority adjourned the hearing and directed Mr Hart to make a formal application to be appointed as an agent, which he did. His application was declined; hence this appeal.1 Ms Johnson is a bar manager at the Hotel.2 Sale and Supply of Alcohol Act 2012, s 201(1).3 Commissions of Inquiry Act 1908, ss 4A(1) and (3).Decision of the Alcohol Regulatory and Licensing Authority4[6] The Authority held that it possessed all the powers of a Commission of Inquiry, but that those powers were subject to the guiding principles found in the Sale and Supply of Alcohol Act.5 The crucial provisions were held to be ss 171 and 203(9), which state:171 Powers of licensing authorityThe licensing authority has all powers conferred on it by or under this Act or any other enactment, and all other powers reasonably necessary to enable it to perform its functions satisfactorily.203 Proceedings of licensing authority and licensing committees(9) Subject to the provisions of this Act and of any regulations made under this Act, the authority or committee may regulate its procedure in such manner as it thinks fit.[7] The Authority acknowledged that barristers and solicitors would be entitled to appear before it.6 However, the Authority also found that s 203(9) permitted it to determine whether or not an agent would be allowed to appear on behalf of an interested party, which would require a formal application to be heard.7 TheAuthority found that such application "should be made well in advance of the hearing date." The Authority would then determine such applications on a case-by- case basis.[8] The Authority referred to two decisions of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal finding that Mr Hart was guilty of professional misconduct,8 and also had regard to a decision of the High Court on appeal.9 The Authority found that Mr Hart was not a suitable person to appear before it, and so refused his application to appear as an agent on that basis.4 McErlean v The Grand Hotel Awaroa [2015] NZARLA PH 555-556.5 Sale and Supply of Alcohol Act, s 201(2).6 Lawyers and Conveyancers Act 2006, s 48(2).7 See s 203(9) which provides that "[s]ubject to the provisions of this Act and of any regulations made under this Act, the authority or committee may regulate its procedure in such manner as itthinks fit."8 Auckland Standards Committee No 1 v Hart [2012] NZLCDT 26; Auckland Standards Committee No 1 v Hart [2012] NZLCDT 20.9 Hart v Auckland Standards Committee 1 of New Zealand Law Society [2013] NZHC 83.Grounds of Appeal[9] The Hotel and Ms Johnson essentially contend that the ruling of the Authority was legally incorrect. Specifically, the Hotel and Ms Johnson appeal the ruling of the Authority on the following grounds:(a) The Authority erred in law when it directed that Mr Hart was required to submit a formal application to be heard as an agent.(b) The Authority erred in law when it concluded that it was empowered to determine whether a person was permitted to appear as an agent.(c) The Authority erred in law when it considered s 48(2) of the Lawyers and Conveyancers Act 2006 in determining the entitlement of agents to appear before it.(d) The Authority erred in fact and in law when it determined that it was entitled to regulate its own procedure and therefore was entitled todetermine the suitability of Mr Hart as an agent for an "interested party" (rather than the named respondents).(e) The Authority erred in law when it considered the decisions of the Lawyers and Conveyancers Disciplinary Tribunal and the High Courtdecision as being relevant to Mr Hart's entitlement to appear as anagent.(f) The Authority erred in law by either failing to observe the principles of natural justice or failing to consider the implications of their invaliddecision on the appellants' right to natural justice under s 27 of theNew Zealand Bill of Rights Act 1990.Appellants' submissions[10] Counsel for the appellant, Mr Chambers, acknowledged that s 203(9) of the Sale and Supply of Alcohol Act empowers the Authority to regulate its procedure ina manner it sees fit, but submitted that this power was "[s]ubject to the provisions of this Act".10 Mr Chambers identified a number of relevant legislative provisions:3. Section 170 of the Act sets out the functions of the Authority,including "any other functions conferred on it by or under this Actor any other enactment." ((section 170(e) - emphasis added).4. Section 171 of the Act affirms the Authority's powers conferred on it "..by or under this Act or any other enactment" (emphasis added)5. Section 201(1) of the Act affirms that the Authority "..must betreated as being a Commission of Inquiry under the Commissions of Inquiry Act 1908; and that Act, with any necessary modifications,applies accordingly." (section 201(1) – emphasis added).6. Section 204(3) of the Act states that an objector (respondent) mayappear and be heard in proceedings, "..whether personally or by counsel.." (emphasis added)8. Section 4A(3) of the Commissions of Inquiry Act 1908 stipulatesthat every person "entitled, or given an opportunity, to be heardunder this section may appear in person or by his counsel or agent." (emphasis added)[11] Mr Chambers cited New Zealand Private Prosecution Service Limited v John Philip Key, which dealt with a similar issue.11 That case concerned the interpretation of s 108 of the Human Rights Act 1993, which states:108 Persons entitled to be heard(3) A person who has a right to appear or is allowed to appear before the Tribunal may appear in person or be represented by his or her counsel or agent.[12] Mr Chambers also cited similar legislative provisions in the Real Estate Agents Act 2008 and the Lawyers and Conveyancers Act which entitle a party to berepresented by "counsel or otherwise" in proceedings before the respectivedisciplinary tribunals.10 Sale and Supply of Alcohol Act, s 203(9).11 New Zealand Private Prosecution Service Ltd v John Philip Key [2015] NZHRRT 48.[13] Mr Chambers submitted that the Sale and Supply of Alcohol Act was silenton the definition of "counsel" and that, in the absence of any express provision to thecontrary, the Commission of Inquiries Act 1908 had the effect of expanding a party's choice of representative to include an "agent" under s 4A(3) of that Act.[14] Mr Chambers attempted to counter the respondent's argument that s 206(2) ofthe Sale and Supply of Alcohol Act restricted the persons who had rights of audience before the Authority so as to exclude agents by arguing that the language of s 206(2)did not expressly state that "only" the persons identified in s 206(2) had rights ofaudience. He also submitted that the use of the words "may appear and he heard"indicated the section was permissive and therefore it would be possible to read theother words such as "agent" into s 206(2).[15] Mr Chambers submitted that the Authority erred in considering only s 48(2) of the Lawyers and Conveyancers Act12 without considering the broader context of the Act, including s 27, which states:27 Exceptions to sections 21, 22, 24, and 26(1) Sections 21, 22, 24, and 26 do not prevent—(a) any person from representing himself or herself in proceedings before any court or tribunal; or(b) any person from appearing as an advocate, or representing any other person before any court or tribunal if the appearance or representation is allowed or required—(i) by any Act or regulations; or(ii) by the court or tribunal; or(c) any person who may, in accordance with paragraph (b), appear in any proceedings as an advocate or representative from—(i) giving advice in relation to those proceedings; or(ii) giving assistance in drafting, settling, or revising documents for filing in those proceedings.[]12 Section 48(2) provides that "every person admitted as a barrister and solicitor is entitled, while his or her qualification continues, to practise in or before any court or tribunal."[16] Mr Chambers submitted that there was no provision within the governing legislation that required leave to be sought to appear as an agent or granting theAuthority the power to determine the "suitability" of an agent, particularly when the determination of suitability was grounded in that person's regulatory history underthe Lawyers and Conveyancers Act. Mr Chambers submitted that this amounted to re-punishment of a former practitioner.[17] Mr Chambers also addressed the application of s 27 of the New Zealand Bill of Rights Act. He acknowledged that this Act applied only in respect of Ms Johnson, since the first appellant is not a natural person.13 Mr Chambers submitted that the Authority must have been aware that in the absence of any assistance from Mr Hart, the appellants could not have afforded any legal representation for the purposes ofthe proceedings before the Authority. He submitted that the Authority's reliance onself-regulatory powers in this instance had deprived the appellants of access to justice and constituted a breach of natural justice.[18] Finally, Mr Chambers cited two decisions of the Authority in which agents had appeared on behalf of the respondents without having first made application to the Authority for leave to appear as an agent, Kam v Margueritas Bar14 and Kam v Le Box.15 He submitted that it was common practice to allow agents to appear on behalf of respondents and that the Authority had only changed its practice when Mr Hart appeared on behalf of the appellants. He also provided the Court with copies of decisions of the Authority that recorded agents appearing on behalf of one of the parties before the Authority.Respondents' submissions[19] The respondent opposed the appeal on two grounds:(a) Section 206(2) of the Sale and Supply of Alcohol Act "expressly and exclusively" determines which parties are entitled as of right to appearat a proceeding of this kind; and13 See New Zealand Bill of Rights Act 1990, s 29.14 Kam v Margueritas Bar [2013] NZARLA 67.15 Kam v Le Box [2013] NZARLA 144.(b) In the alternative, the Authority is empowered to regulate its own proceedings, including determining who can appear before it.[20] In relation to the first ground, Mr McColgan submitted that the text of s 206(2) unambiguously determined the right of person to appear in proceedings of this kind. That section states:206 Right of persons to appear in relation to certain applications for variation, suspension, and cancellation(1) This section applies to the following proceedings:(a) an application for the variation, suspension or cancellation of a licence under section 280:(d) an application for the suspension or cancellation of amanager's certificate under section 285:(2) The following persons may appear and be heard, whether personally or by counsel, and call, examine, and cross-examine witnesses:(a) the applicant:(b) the respondent.(3) With the leave of the chairperson of the licensing committee or the licensing authority (as the case may be), the following persons may appear and be heard, whether personally or by counsel, and call evidence:(a) any inspector:(b) any constable:(c) any Medical Officer of Health.[21] Mr McColgan submitted that "personally" should bear its ordinary dictionarydefinition and did not include representation by an agent. Similarly, Mr McColgansubmitted that "counsel" had a specific and settled meaning in New Zealand,meaning "a practising lawyer who provides legal advice to, and advocates for, another person in matters of a legal nature." He referred to s 21 of the Lawyers andConveyancers Act, which makes it an offence for any person who is not a lawyer todescribe himself or herself as "counsel". Mr McColgan further submitted that theexclusion of "agent" from s 206 must be intentional, since the concept of agency wasrecognised elsewhere in the Act.16 There was nothing in the purpose or object of the Act which would require any alternative interpretation of s 206. Finally, Mr McColgan submitted that the effect of s 206 was to exclude the application of s 4A(3) of the Commission of Inquiries Act, since s 201(2) of the Act states that the application of the Commission of Inquiries Act is subject to the Sale and Supply of Alcohol Act.[22] In relation to the second ground of opposition, Mr McColgan submitted that s 203(9) of the Act permitted the Authority to regulate its procedures in a manner it thinks fit. He submitted that this necessarily included the ability to ensure that a proceeding does not amount to an abuse of process. Mr McColgan submitted thatMr Hart's proposed appearance would amount to an abuse of process since:3.8 Mr Hart's ability to appear and represent the Appellants would floutthe sanction properly imposed on him and the subsequent judgments upholding the sanction.3.9 Allowing Mr Hart to appear as an advocate would bring theAuthority's proceeding into disrepute by circumventing the clear sanction that he no longer be able to provide legal and advocacy services in New Zealand Courts and Tribunals.Type of appeal[23] The appellants have filed a notice of appeal which is reliant upon both ss 159 and 162 of the Sale and Supply of Alcohol Act. However, each provision provides a discrete and different right of appeal.[24] Section 159 provides a general right of appeal, which appears to me to be directed at the substantial decision of the Authority, rather than at procedural rulings or interlocutory decisions. In the present case the determination of the Authority to require Mr Hart to make an interlocutory application for leave to represent the appellants is distinct from a substantial decision on the matter before the Authority for determination.16 Sale and Supply of Alcohol Act, s 5, definition of "exempt person".[25] Section 162 allows for appeals on questions of law. The issue for determination in this case is a question of law: namely, whether an agent other than counsel was entitled to appear on behalf of the appellants before the Authority. Further s 162 covers any determination made in the proceedings that is under challenge for being erroneous in point of law, so in this sense it can apply to procedural rulings as well as substantial decisions that turn on points of law. TheAuthority's decision to require Mr Hart to apply formally for a right of audience before it and then its decision to refuse him audience clearly raises points of law. At the hearing Mr Chambers responsibly accepted that the appeal should be dealt with as an appeal under s 162.Approach on appeal under s 162[26] Section 162 of the Sale and Supply of Alcohol Act provides that:162 Appeal against decision of licensing authority on question of law(1) Subject to subsection (3), where any party to any proceedings before the licensing authority (whether the proceedings commenced in a licensing committee or the licensing authority) is dissatisfied with any determination of the licensing authority in the proceedings as being erroneous in point of law, that party may appeal to the High Court on the question of law concerned.(2) Subject to sections 152, 153, 161, and 163 to 166, every appeal under this section must be dealt with in accordance with rules of court.(3) This section does not apply to a decision by the licensing authorityto cancel a licence under section 289 or to cancel a manager'scertificate under section 290.[27] An appeal under s 162 is by way of rehearing.17 In Christchurch Medical Officer of Health v J & G Vaudrey Ltd, Gendall J held that:18This is an appeal pursuant to s 162 of the Act. It is limited to points of law alone. This Court will not interfere with a decision unless it can be shown that the decision maker erred in law, accounted for irrelevant matters, failed to account for relevant matters, or was plainly wrong. Factual challenges, whether raised squarely or obliquely, will not be entertained on appeals of this kind, save to the extent they are capable of establishing that the decision appealed is plainly wrong. This is necessarily a very high threshold.17 High Court Rules, r 20.18.18 Christchurch Medical Officer of Health v J & G Vaudrey Ltd [2015] NZHC 2749 at [17].Analysis[28] Section 206 of the Sale and Supply of Alcohol Act is the predominant provision for determining who has a right of audience before the Authority in proceedings such as those faced by the appellants. This section clearly and unambiguously specifies the persons who have a right to appear and be heard in those proceedings, and in doing so restricts that right to those who appear in person or their counsel.[29] I do not accept Mr Chambers' submission that the use of the word "may" ins 206(2) allows me to read other words into the section such as "agent". The permissive nature of the provision through the use of the word "may" recognises thatthe parties and their counsel have a choice as to whether they make an appearance before the Authority or not. The permissive nature of s 206(2) goes no further than that.[30] Thus, it is only if the word "counsel" in s 206(2) is read to include an agentin the broad sense of that word that someone like Mr Hart would have a right of audience under s 206(2).[31] Section 4A(3) of the Commissions of Inquiry Act provides a right of audience in any inquiry conducted under that Act to certain identified persons who may appear in person or be represented by their counsel or their agent. Section 201(1) of the Sale and Supply of Alcohol Act applies the Commissions of Inquiry Act to the Authority, but that is only insofar as s 4A(3) is consistent with the provisions of the Sale and Supply of Alcohol Act.19 Accordingly, if a provision of the Sale and Supply of Alcohol Act is at odds with a provision of the Commissions of Inquiry Act the former will trump the latter.[32] It is not tenable to suggest that "personally or by counsel" includesrepresentation by an agent such as Mr Hart.20 The plain meaning of "personally" isquite clear and there is no precedent to suggest that the Court should deviate from19 Sale and Supply of Alcohol Act, ss 201(1) and (2); and s 201(3) extends the statutory powers of a Commission of inquiry to the Authority.20 Sale and Supply of Alcohol Act, s 206(2).that meaning. The plain meaning of "counsel" is also clear and is supported by thefact that s 21 of the Lawyers and Conveyancers Act makes it an offence for any person other than a lawyer or an incorporated law firm to describe himself, herself oritself as "counsel". It is unfortunate that the Authority did not refer to this section inits original decision.[33] Moreover, I cannot see how the language of s 4A(3) of the Commissions ofInquiry Act would allow for the word "counsel" in s 206(2) of the Sale and Supplyof Alcohol Act to be read to include an agent who would not also qualify as counsel.Section 4A(3) expressly distinguishes between "counsel" and "agent" with the use of the phrase "his counsel or agent", which I read as being disjunctive.21 The fact thatParliament separately referred to "counsel" and to "agent" in s 4A(3) informs methat Parliament viewed those roles as being exclusive. However, the appellants want me to rely upon s 4A(3) as a foundation for reading "counsel" in s 206(2) to include an "agent" which is the very opposite of how s 4A(3) is expressed. This is a furtherreason why s 4A(3) cannot assist the appellants here.[34] The appellants also want me to rely upon s 4A(3) more generally by simplytaking the reference to "agent" in that section and adding it to the phrase "personally or by counsel" in s 206(2). However, using the Commissions of Inquiry Act to addto the language of s 206(2) in this way flies in the face of s 201(1) of the Sale and Supply of Alcohol Act. For the Court to use s 4A(3) to add to the categories of persons identified in s 206(2) would be to disregard the obvious inconsistency between the types of persons who have rights of audience under each Act and to disregard the enjoinder in s 201(1) to recognise the language of the Sale and Supply of Alcohol Act as being paramount where there is any inconsistency between each Act. The appellants would have me do the very opposite of what Parliament has provided.[35] The other legislative provisions and case law which Mr Chambers cited in support of his points are not helpful in this case. The legislative provisions in the Human Rights Act, Real Estate Agents Act and Lawyers and Conveyancers Act21 If the phrase were to be read conjunctively it would apply only to persons who were both counsel and agents, which of course is what counsel is.either explicitly provide for the parties to be represented by an agent or leave the parties to determine the matter for themselves by providing that they may berepresented "by counsel or otherwise." Section 206(2) of the Sale and Supply ofAlcohol Act does not fall into either of those categories.[36] As was noted by the respondent, s 203(9) of the Sale and Supply of Alcohol Act confers power on the Authority to regulate its procedure in such manner as it thinks fit. On occasion, it seems that the Authority may have used this provision to allow another class of persons to appear before it.22 This explains why, as noted by Mr Chambers, there have been a number of decisions by the Authority where appearance by agents has been permitted. However, there is no authority to suggest that this translates into a right to be heard by persons who fall outside the scope of s 206(2).[37] It may be that the Authority's use of s 203(9) to give leave for personsappearing before it to be represented by agents exceeds the limits of this provision. The express and explicit language of s 206(2) may preclude reliance on the more generally worded language of s 203(9) for any extension of the categories of persons specified in s 206(2). On the other hand, s 206(2) may only apply to rights of audience and the Authority may be able to look to some other statutory provision available to it for discretionary authority to permit agents to appear as well. In this regard I note that the present appeal has focussed only on rights of audience. It follows that, whether the Authority has discretionary power to allow persons other than counsel to represent the parties appearing before it or not is a separate question that I do not need to determine now.[38] The second appellant also raised an argument based on natural justice. No authority was advanced in support of this submission and it is unclear whether theAuthority's decision can impact on natural justice considerations given the clearlegislative direction regarding representation. However in any case, it is importantto note that the Authority's decision would not prevent the appellants frompresenting their case, either in person or through a lawyer, so it is hard to see how the22 See Applications by Minerva Bar Ltd & Hong [1995] NZAR 215.decision to refuse Mr Hart a right of audience can amount to a breach of natural justice.[39] The final argument raised by the appellants was that the Authority erred in law by giving weight to s 48(2) of the Lawyers and Conveyancers Act in determining whether or not an agent was entitled to appear before it. The relevant section of the decision states:[8] Barristers and solicitors are generally entitled while their qualification continues, to practise before any court or tribunal (section 48(2) of the Lawyers and Conveyancers Act 2006). In our view the same entitlement does not apply to agents.[40] The Authority's reference to this section is puzzling, since s 48(2) does notappear to add anything of value over and above the express provision in s 206(2) of the Sale and Supply of Alcohol Act regarding representation by counsel in these proceedings. However, the statement of law is correct and does perhaps illustrate the difference between the right of a lawyer to appear versus the right of some other type of agent.Conclusion[41] Section 206(2) of the Sale and Supply of Alcohol Act clearly states that persons who are involved in proceedings under ss 280 and 285 of that Act mayappear and be heard "personally or by counsel". Mr Hart falls into neither category;he is someone who purported to be no more than an agent for the appellants and as such he was not entitled to appear on their behalf.[42] The appeal is dismissed.[43] Leave is granted for the filing of memoranda on costs.