New Zealand Police v Casino Bar

JurisdictionNew Zealand
CourtHigh Court
JudgeDobson J
Judgment Date04 February 2013
Neutral Citation[2013] NZHC 44
Docket NumberCIV-2012-485-1491

[2013] NZHC 44

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-1491

BETWEEN

Under the Sale of Liquor Act 1989

In The Matter of a decision of the Liquor Licensing Authority [2012] NZLLA 723 dated 27 June 2012

New Zealand Police
Appellant
and
Casino Bar (No 3) Ltd
First Respondent

and

Cgml Limited
Second Respondent
Earl Forrester Hilton
Third Respondent
Counsel:

T G H Smith & S Kennedy for appellant

M Bendall and B D Jones for first respondent

A G Sherriff for second respondent

Appeal from Liquor Licensing Authority's decision to grant the respondent an on-licence in respect of adult entertainment venue “Calendar Girls” — police and second respondent (which operated competing venue) opposed application on basis that applicant's husband had serious criminal offences — opposition dismissed as applicant undertook that husband would not have a role in the business — second respondent's opposition dismissed on basis it was a trade competitor under s13(2) Sale of Liquor Act 1989 “SLA” — whether the Authority had erred: by applying an incorrectly narrow assessment of “suitability” and by relying on the absence of applications by the Police in different licensing districts to revoke the other licences that had been granted to businesses associated with the applicant — whether reports filed by the appellant under s11 SLA (reports), should have been treated as objections for the purposes of triggering the requirement under s106(2) SLA (procedure) for a hearing to be held.

The issues were: whether the Authority had erred in applying an incorrectly narrow assessment of “suitability”; whether the Authority had erred in relying on the absence of applications by the Police in different licensing districts to revoke the other licences that had been granted to businesses associated with LP; and, whether the Authority had wrongly rejected CGML's objection.

Held: “Suitability” was commonly used and was well understood, so it was unhelpful to draw on the way it might have been applied in different factual circumstances (Re Sheard). “Suitability” was a broad concept and, in the context of an assessment of an application under s13 SLA, it related to the suitability of the applicant to be granted an on-licence to dispense liquor. The decision-maker would run the risk of excluding matters that were relevant to the suitability of an applicant if the analysis focused solely on the applicant's proposals as to how the business was to operate. The decision-maker erred if it excluded indicators of an applicant's suitability or unsuitability that were not reflected in the applicant's proposal as to how the business would operate.

In this case, a significant aspect of any assessment of suitability of CBL distancing itself from an unsuitable person, S, whose involvement in running the licensed operation was implicitly treated as adversely affecting CBL's ability to make out its suitability to be granted a licence. In that context, it would be unrealistic to ignore the extent to which such a presumptively unsuitable individual had been involved in setting up and marketing the business, when assessing the credibility of a claim on behalf of the applicant that he would be excluded from the operation of its licensed business.

There were credible grounds for questioning the efficacy of an undertaking previously given by LP, and the Authority had implicitly recognised that involvement in the business by S, in breach of such an undertaking, would be a ground for the Police to move for cancellation of the licence. Given those issues, the manner in which it had shut down the inquiry and deprived itself of a sufficiently informed basis for a decision as to whether the applicant had discharged the onus, had reflected an unsustainably narrow approach to the assessment of “suitability” and constituted an error of law.

The Police argued that the Authority's decision had wrongly relieved CBL of the onus of establishing suitability once it had been put in issue, While the decision was on terms that did not recognise any onus, this specific criticism of the reasoning did not add to the error of law that was made out of the decision being premised on an unsustainably narrow approach to the assessment of “suitability”.

It could not be said that as a matter of law the Authority could not have regard to the status of other licences that the CBL was associated with. In the course of a contested hearing at which the suitability of the applicant was in issue, it might be appropriate for CBL to support its arguments as to suitability by reference to the history of unchallenged operations of licensed premises managed by associated entities in other centres. It could not be a discrete error of law for the Authority to have regard to CBL's experience with associated licensed businesses, provided that consideration arose in the appropriate context.

As a matter of law, the filing of a report on behalf of the Police that raised matters in opposition did not necessarily give the Police report status as an objection so as to trigger the obligation to convene a public hearing under s106(2) SLA. However, in appropriate cases, the Authority could convene a hearing in the absence of objections. Therefore, it should not ignore the existence of grounds for opposition advanced in a Police report, in deciding whether it can deal adequately with an application without convening a public hearing under s106(1) SLA.

The Authority had not given adequate consideration to the need to convene a public hearing. In assessing the criteria for granting an on-licence, the Authority was required to give meaningful consideration to relevant matters. While there was not a complete abdication for factual analysis, there was an unrealistically confined one following from the error of law in defining the issue of suitability too narrowly. Although the Authority was entitled to exclude the Police reports, it did not have an unfettered discretion to determine the application without convening a public hearing. In the circumstances of this application, the appropriate course was to convene a public hearing. The Authority had erred as a matter of law under s106(1) SLA in deciding that it would determine the application without convening a hearing.

The standing to bring an objection under s10(1) SLA required the objector to have a greater interest in the application than the public generally. Section 13(2) SLA (must not take into account any prejudicial effect that the grant of the licence may have on the business conducted pursuant to any other licence) did not disqualify a competitor from objecting, but merely excluded grounds of objection that amounted to a complaint of adverse impact on the objector's licensed business. The Authority had wrongly treated the whole of CGML's objection as reflecting concerns at a prejudicial effect on the licensed businesses with which it was associated.

That approach had failed to have regard to the grounds actually raised on behalf of CGML which focused on the unsuitability of the applicant given S's connection. CGML was not the licensee of either of the two Wellington premises that CBL's venture would compete with. The alter egos controlling all of them, the Chow brothers, represented the common link. Organisationally, it appeared that CGML undertook overall management and initiatives such as pursuit of the objection in the proceedings, in the interest of the group of companies overall.

Had the Authority not peremptorily excluded CGML, and CBL had raised the issue of standing, then it seemed likely that the inter-connection between various companies in the Chow Group could have been the subject of evidence which could establish that CGML did indeed have an interest greater than members of the public generally. The lack of merit in CBL's technical objection to standing was highlighted by its reliance on the argument that it was appropriate for the Authority to have regard to the other licensed entities of which LP was the alter ego, in support of the suitability of CBL in the present case. LP's status as the alter ego of those entities was comparable to the Chow brothers' position in respect of the second respondent and other licensed premises that competed with CBL. CGML did have standing to object to the application.

In the circumstances, s147(1) SLA operated to defer the decision to grant the licence until the time allowed for filing an appeal had expired.

The appeal was granted. The decision of the Authority was quashed and the licence was revoked

RESERVED JUDGMENT OF Dobson J

Contents

Background to the appeal

[1]

First alleged error of law: incorrectly narrow assessment of “suitability”

[28]

Second alleged error of law: failure to acknowledge status of Police reports.

[42]

Third alleged error of law: LLA wrongly rejected CGML objection

[57]

Consequential error: immediate issue of the licence

[70]

Outcome

[78]

Costs

[79]

Background to the appeal
1

On 27 June 2012, the Liquor Licensing Authority (LLA) issued a decision in which it granted an application by the first respondent (CBL) for an on-licence under the Sale of Liquor Act 1989 (the Act) in respect of an adult entertainment venue in central Wellington known as “Calendar Girls”. 1 Its decision was to have immediate effect.

2

On the basis of serious concerns about the suitability of the applicant, the Police had opposed the grant of the licence. The second respondent (CGML), a member of the Chow Group of companies, also opposed the application. Its objection acknowledged that it was a competitor of CBL, but sought to pursue grounds of objection unrelated to the adverse effects of competition from CBL on its own operation. The third respondent (Mr Hilton) also lodged an objection to the application. The LLA treated that objection as having no status because it had been...

To continue reading

Request your trial
5 cases
  • Venus NZ Ltd
    • New Zealand
    • High Court
    • 18 June 2015
    ...159. 34 With reference to Page v Police HC Christchurch CP84/98, 24 July 1998 (Panckhurst J), New Zealand Police v Casino Bar (No 3) Ltd [2013] NZHC 44, at para [36] and Re Sheard [1996] 1 NZLR 751 (HC) at 758. 35 Ibid, at para [11]. 36 Ibid, at para [17]. 37Re Venus NZ Ltd [2014] NZARLA PH......
  • Lower Hutt Liquormart Ltd v Shady Lady Lighting Ltd
    • New Zealand
    • High Court
    • 28 November 2018
    ...22 Page v Police HC Christchurch AP 84/98, 24 July 1998 at 9. 23 Re Sheard [1996] 1 NZLR 751 at 755. 24 Police v Casino Bar (No 3) Ltd [2013] NZHC 44, [2013] NZAR 267 (citation 25 Shady Lady Lighting Ltd v Lower Hutt Liquormart Ltd, above n 6, at [126], quoting from Re Nischay's Enterprise......
  • 1377
    • New Zealand
    • High Court
    • 15 June 2015
    ...PH 159. With reference to Page v Police HC Christchurch CP84/98, 24 July 1998 (Panckhurst J), New Zealand Police v Casino Bar (No 3) Ltd [2013] NZHC 44, at para [36] and Re Sheard [1996] NZLR 751 (HC) at 758. Ibid, at para [11]. [14] [Mr Vel Gnanasundaram’s sister-in-law] obtained her Gener......
  • Utikere v I S Dhillon and Sons Ltd
    • New Zealand
    • High Court
    • 25 February 2014
    ...1406 , [2012] NZAR 717. 18 Augier v Secretary of State for the Environment (1978) 38 P&CR 219 (QB) . 19Police v Casino Bar (No 3) Ltd [2013] NZHC 44, [2013] NZAR 267 at 20Re Sheard [1996] 1 NZLR 751 (HC) at 755. 21Police v Casino Bar (No 3) Ltd [2013] NZHC 44, [2013] NZAR 267 at [34]. 2......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT