MEGA TRADE (AKL) LIMITED AND ANOR V THE COMMISSIONER OF POLICE HC AK CIV 2009-404-5128 [2009] NZHC 1169 (3 September 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                             CIV 2009-404-5128



              BETWEEN                  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 2009


                           JUDGMENT
OF ALLAN J



Solicitors/counsel :
J Wiles PO Box 941, Auckland
Crown Solicitor, Auckland




MEGA TRADE (AKL) LIMITED AND ANOR V
THE COMMISSIONER OF POLICE HC AK CIV 2009-
404-5128 3 September 2009

[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 this

experienced
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