THERMAL BREWING COMPANY LTD v NEW ZEALAND POLICE [2023] NZHC 3113

THERMAL BREWING COMPANY LTD v NEW ZEALAND POLICE [2023] NZHC 3113 [3 November 2023]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECIV-2023-463-80[2023] NZHC 3113UNDER Section 159 and 161 of the Sale and Supplyof Alcohol Act 2012 and the High CourtRules 2016IN THE MATTER OF an appeal against a decision of the AlcoholRegulatory Licensing Authority at RotoruaBETWEEN THERMAL BREWING COMPANYLIMITED and JESSICA LEAMYAppellantsAND NEW ZEALAND POLICERespondentHearing: On the papersCounsel: F Pilditch KC and T Refoy-Butler for AppellantsS Parata for RespondentJudgment: 3 November 2023JUDGMENT OF HARVEY JThis judgment is delivered by me on 3 November 2023 at 2.30 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarSolicitors/Counsel:Holland Beckett Law, TaurangaFletcher Pilditch King's Counsel, Downtown AucklandNew Zealand Police, RotoruaIntroduction[1] Thermal Brewing Co Ltd operates the popular "Pig & Whistle" restaurant andbar on Tutanekai Street in Rotorua. On 22 July 2022, a controlled purchase operationwas undertaken by the Police where two underaged persons were able to buy Coronabeer from the bar. The appellants say that within "15 seconds" of the purchase thebartender, having been directed by Jessica Leamy, the bar manager, then checked theidentifications of the two youths. The appellants further assert that as a result, theyouths did not have the chance to consume their beers.[2] The Police alleged the appellants breached the Sale and Supply of Alcohol Act2012. A hearing was then held before the Alcohol Regulatory Licencing Authority.The Authority imposed suspensions on the company's licence for 48 hourscommencing 8 am, 9 November 2023 to 8 am, 11 November 2023 and on Ms Leamy'smanager's certificate for 28 days from 11 November until 8 December 2023.1[3] On 30 October 2023, an appeal was filed against that decision. The appellantsnow seek a stay pending hearing of the appeal, supported by an affidavit of GregoryBrown, a director of the company. His affidavit annexes the affidavits, filed in theAuthority proceedings, of Margaret Main, who is involved in training for hospitalityindustry staff and Rosie Harding, group operations manager of the company.[4] The Police do not oppose the stay.Legal principles[5] Section 153(3) of the Sale and Supply of Alcohol Act 2012 governs the stay ofthe enforcement of a determination. It is a discretion of a "wide-ranging nature".2 Itis appropriate for the Court to grant a stay of enforcement where the appeal is bonafide, there are no other complaints about the operation of the venue, there would befinancial implications and to decline the stay would render the appeal redundant.3 The1 Parata (NZ Police) v Thermal Brewing Company Limited and Jessica Leamy [2023] NZARLA172–173.2 Cats Niteclub (1991) Ltd v Police [1996] 3 NZLR 581.3 At 584.High Court Rules 2016, r 20.10 is analogous, and in exercising its discretion underthat rule the Court will weigh up the position of both parties.4Discussion[6] The appellants argue that a stay is necessary on several grounds. First, that inthe circumstances, any public safety concern associated with the ongoing conduct ofthe applicants is low. Secondly, if the decision is enforced, the applicants will sufferlosses which cannot be compensated on appeal, namely reputational harm andfinancial hardship. Thirdly, the merits of the appeal are strong. Fourthly, thesuccessful party will not be injuriously affected by the stay. Fifthly, there is a materialrisk that the appeal would be rendered nugatory by the lack of a stay. Finally, theappellants submit that the overall balance of convenience is in favour of granting thestay of the decision until the appeal is determined.[7] For all of the reasons submitted, I agree that, in all the circumstances, a stay iswarranted, pending the hearing of the appeal in due course.Decision[8] The application for a stay is granted._____________________________Harvey J4 Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd [1999] 3 NZLR 239, (1999)13 PRNZ 48 (HC).