Venus NZ Ltd

• Jurisdiction: New Zealand
• Judge: Heath J
• Judgment Date: 18 June 2015
• Neutral Citation: [2015] NZHC 1377
• Docket Number: CIV-2014-419-420
• Court: High Court
• Date: 18 June 2015

Under ss 138 and 139 of the Sale of Liquor Act 1989

In the Matter of an appeal of a decision of the Alcohol Regulatory and Licensing Authority by VENUS NZ LIMITED, a duly incorporated company having its registered office at 7 Dugald Court, Rototuna, Hamilton 3210

[2015] NZHC 1377

CIV-2014-419-420

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

Appeals against a decision of the Alcohol Regulatory and Licensing Authority declining an application to operate an off-licence (a bottle store) — Authority considered the factors in s105(1) Supply of Alcohol Act 2012 (Criteria for issue of licences) and had concerns about the suitability of the applicant and the number of off licences and on licences in the area and the suitability of the applicant — said that applicant had shown a lack of candour — Authority concluded that on the evidence it was difficult to reach any conclusion as to how the amenity and good order of the locality would be affected by the addition of one off-licensed premises — Authority held there was an “onus” on the applicant to satisfy it that there would be no likely reduction to the amenity — licence was declined — what was the set for determining whether to grant an off-licence — whether the onus had been on the applicant to satisfy the Authority that there would be no likely reduction to the amenity — what factors were relevant to the assessment of the suitability of the applicant.

Counsel:

J B Forret and K F Shaw for Appellant

No appearance by or on behalf of any other party

REASONS FOR JUDGMENT OF Heath J

CONTENTS

Outcome	[1]
Procedural issues	[3]
The appeal	[5]
The legislative framework	[13]
The proceedings before the Authority
(a) Introduction	[21]
(b) The Authority's decision
(1) The “suitability” issue	[35]
(ii) The amenity and good order” criterion	[40]
The s 139 appeal: Was there an “onus” on Venus?	[51]
The s 139 appeal: “Suitability”	[63]
Conclusions	[73]
Result	[76]

Outcome

1 Venus NZ Ltd (Venus) appeals against a decision of the Alcohol Regulatory and Licensing Authority (the Authority), given on 15 October 2014. 1 Despite a lack of opposition from the Police, and the appearance of only one of 64 members of the public who had written letters of objection, the Authority declined an application from Venus to operate an off-licence from proposed business premises in Raglan. The appeal was served on affected persons. 2 No steps have been taken by any of them. The Authority, as is customary, abides the decision of the Court. 3

2 On 15 June 2015, I gave judgment allowing the appeal, setting aside the Authority's refusal to grant an off-licence and directing the Authority to issue an off-licence on conditions set out in the judgment. 4 These are my reasons for doing so.

Procedural issues

3 The appeal was called before me on 26 November 2014, so that directions could be given to ready the appeal for hearing. I raised with Ms Shaw (who appeared on that occasion for Venus) whether there might be a need for the Court to appoint a Contradictor. I directed the Registrar to refer submissions, when filed on behalf of Venus, to a Judge to determine whether a Contradictor should be appointed

to present argument to support the Authority's decision. 5 On 27 February 2015, Brewer J directed that the appeal should proceed in the absence of a Contradictor. 6 On 2 June 2015, I heard the appeal on that basis. In addition, I heard briefly from counsel in chambers on 12 June 2015 on questions of relief. 7

4 Although the Authority made its substantive decision under the Sale and Supply of Alcohol Act 2012 (the 2012 Act) the appeal is brought under ss 138 and 139 of the Sale of Liquor Act 1989 (the 1989 Act). Because Venus filed its application before the 2012 Act received the Royal Assent, s 407 of the 2012 Act is engaged. While the sections of the 2012 Act to which s 407 refers required the substantive application to be decided by reference to them, appeals remain to be determined under the 1989 Act.

The appeal

5 Sections 140 and 141 of the 1989 Act govern the way in which appeals from the Authority are instituted and rights to appear and to be heard on appeals. A copy of the Notice of Appeal must be served, either personally or by post, on every other party to the proceeding before the Authority. 8 Service by post under's 140(2) must be by registered letter which is deemed, in the absence of proof to the contrary, to have been effected at the time when the letter would be delivered in the ordinary course of post. 9 If a party wishes to appear on the appeal it is required to give notice to the Registrar of this Court and to serve a copy on the appellant. 10 On appeal, this Court may direct the Authority to lodge additional documents or to provide a report if any documents have not been transmitted to the High Court or there are relevant issues of concern on appeal that are not set out in the Authority's decision. 11

6 Counsel for Venus confirmed, by memorandum dated 26 November 2014, that the Notice of Appeal was served on 29 October 2014 on the Authority, the

Waikato District Council's Licensing Inspector (the Inspector), the Waikato District Health Board and 19 objectors, being those whom the Inspector had confirmed had standing before the Authority. As indicated earlier, none of those persons took any steps to oppose the appeal

7 Section 138 of the 1989 Act deals with general appeals to this Court against decisions of the Authority. Section 138(7) states that every such appeal is by way of rehearing. Unless this Court exercises a discretion to the contrary, the appeal is conducted on the basis of the material before the Authority. 12

8 Venus seeks to adduce further evidence on appeal. That evidence is in the form of affidavits sworn by Mr Thangavadivel (Vel) Gnanasundaram and Mr Chandrasekar (Sekar) Gnanasundaram, both of which are directed to the question whether Venus is a “suitable” licensee. 13 A finding to the contrary was made by the Authority. 14 That finding is challenged on appeal. Section 138(8) of the 1989 Act gives this Court “full discretionary power to … receive further evidence on questions of fact, either by oral evidence or by affidavit”. I decided to exercise my discretion to receive the additional evidence because it was relevant, cogent and responded to concerns expressed in the Authority's decision that were not put directly to Mr Vel Gnanasundaram when he gave evidence. 15

9 This Court has power to “confirm, modify or reverse” the decision against which the appeal is brought. Its decision “shall be final and binding on all parties”. 16 Venus accepts that the principles set out in the judgments of the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar 17 and Kacem v Bashir 18 apply to appeals brought under's 138 of the 1989 Act.

10 Section 139 of the 1989 Act is directed to appeals on questions of law. 19 Ms Forret, for Venus, adopted the approach articulated in Berry v Blackbull Liquor Hastings Ltd, 20 in which Collins J said:

• [19] In Bryson v Three Foot Six Ltd the Supreme Court discussed what amounted to a question of law for appeal purposes. The Supreme Court has revisited this topic on other occasions such as in R v Gwaze and Vodfone New Zealand Ltd v Telecom New Zealand Ltd. From these authorities, and for present purposes I note that an error of law may arise if the Authority has:

  • (1) misdirected itself when making a decision pursuant to the requirements of the Act;

  • (2) reached a factual finding that is “so unsupportable — so clearly untenable — as to amount to an error of law.

• (footnotes omitted)

11 The s 138 appeal challenges the Authority's decision on “suitability”. Ms Forret submits that there was no evidence on which the Authority could properly find that the persons proposed by Venus were not suitable to manage the proposed off-licence business. Alternatively, she contends that any deficiencies in the evidence that might have justified that finding have been remedied by the additional evidencefiled on appeal. 21

12 The s 139 point is that the Authority erred in law in holding that there was an “onus” on Venus to satisfy the Authority that there would be no likely reduction to the amenity and good order of the locality if the off-licence were granted. 22 Ms Forret submits that issue ought to have been determined (as a matter of fact) by the Authority on the basis of the evidence actually provided, rather than on the footing that Venus had failed to discharge an onus of proof.

The legislative framework

13 There are four kinds of licence that may be issued under the 2012 Act: on-licences, off-licences, club licences, and special licences. 23 The difference between an on-licence and an off-licence is that the former authorises the licensee to sell and supply alcohol for consumption at the place from which the business is carried on, 24 whereas an off-licence allows a licensee to sell alcohol for consumption somewhere else. 25 The type of premises for which an off-licence may be granted includes a retail bottle store of the kind that Venus proposes to operate. 26 The application stated that the sale of liquor was intended to be the principal purpose of the business.

14 The 2012 Act does not articulate a specific test for the Authority to apply when determining whether to grant an off-licence application. Rather, a series of criteria are identified in s 105(1) of the 2012 Act that the Authority must take into account in determining whether to issue a licence:

105 Criteria for issue of licences

• (1) In deciding whether to issue a licence, the licensing authority or the licensing committee concerned must have regard to the following matters:

  • (a) the object of this Act:

  • (b) the suitability of the applicant:

  • (c) any...