Taradale Club Inc v Police HC Auckland CIV-2011-441-571, [2011] NZHC 1233; [2012] NZAR 107 (27 October 2011)

Last Updated: 27 October 2011

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

_{CIV-2011-441-571}

BETWEEN TARADALE CLUB INCORPORATED Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 25 October 2011

Counsel: J Krebs for Appellant

C R Walker for Respondent

Judgment: 27 October 2011

_{JUDGMENT OF BREWER J}

This judgment was delivered by me on 27 October 2011 at 12 noon pursuant to Rule 11.5 High Court Rules.

_{Registrar/Deputy Registrar}

SOLICITORS

Langley Twigg (Napier) for Appellant

Elvidge & Partners (Napier) for Respondent

COUNSEL Jonathan Krebs

TARADALE CLUB INCORPORATED V POLICE HC NAP CIV-2011-441-571 [27 October 2011]

Introduction

[1] The appellant appeals against a decision of the Liquor Licensing Authority of New Zealand (“the Authority”), dated 15 August 2011, ordering that its club licence be suspended for 26 days. The ground of appeal is that the period of suspension is manifestly excessive. The appellant concedes that a period of suspension was justified in the circumstances but contends that no more than 14 days was justified.

Factual background

[2] The appellant is an incorporated club operating premises in a suburb of Napier. It has a membership in excess of 3000 and does not operate for profit. It has been established for many years.

[3] In 2010 a member of the appellant club who worked for a local firm of engineering contractors booked a private function room at the appellant’s premises for the firm’s Christmas function. The reservation was for the period 3 pm to 6 pm.

[4] At about midday the club member went to the appellant’s premises and received 60 guest passes. Her name was on each as the club member responsible for the guests.

[5] The member’s guests began to arrive at about 3 pm. Each was given a guest pass and four $5 drink vouchers which could be used at the bar in the function room. The function room also had a door leading directly outside to an area which was not part of the licensed premises.

[6] Unfortunately for all concerned, one of the persons who entered the club was Mr Akuhaka. He arrived with a group of guests but he was not entitled to attend the function and he was not given a guest pass. However, he was permitted to enter the premises.

[7] A meal was served in the function room between 4 pm and 5 pm. Between

4 pm and 6.30 pm a club employee served liquor in the same room. After 6.30 pm

the function room bar was closed; persons attending the function were permitted to remain in the function room and elsewhere in the club premises. The function room remained unattended by club staff. Thereafter:[1]

[12] Between 6.30 pm and 9.30 pm many of the function attendees drank in the function room and outside areas. At one table they were seen to be drinking straight whisky shots and mixed shots. Liquor was brought into the function by Mr Akuhaka and it was this liquor that comprised the shots.

[13] Mr Binner [the duty manager] only once attended the function room between 7.45 pm and 9.00 pm.

[14] Some of the function attendees became intoxicated. A male and female were seen to be lying on the floor groping each other. Another attendee, named “Ray” was so drunk that he lay on the floor for about an hour. He was unable to stand up. Ultimately he was helped into a wheelchair by other attendees.

[15] At about 9.30 pm a serious assault occurred outside the licensed premises. It is alleged that Mr Akuhaka perpetrated the assault upon a Mr Mitchell. As a result of the assault Mr Mitchell was seriously injured.[2]

The law

[8] The first issue is the basis upon which the appellant may bring the appeal.

[9] Section 132(1) of the Sale of Liquor Act 1989 (“the Act”) permits a member of the Police to apply to the Authority for an order suspending a licence. Section 132(3) provides:

The grounds on which an application for an order under this section may be made are as follows:

(a) That the licensed premises have been conducted in breach of any of the provisions of this Act or of any conditions of the licence or otherwise in an improper manner:

(b) That the conduct of the licensee is such as to show that he or she is not a suitable person to hold the licence:

(c) The licensed premises are being used in a disorderly manner so as to be obnoxious to neighbouring residents or to the public.

[10] In this case, a member of the Police, Sergeant Formosa, applied to the Authority to suspend or cancel the appellant’s licence. His grounds were both that the appellant’s licensed premises had been conducted in breach of provisions of the Act and in breach of a condition of the licence, but also on the ground that the conduct of the appellant as licensee was such as to show that it is not a suitable person to hold the licence; the particulars for the latter being given as failing to conduct the premises in a proper manner.

[11] The basis upon which the Authority decided the application is important. If the Authority in suspending the appellant’s licence did so on the ground of the suitability of the appellant to hold its licence then, pursuant to s 138 of the Act, the appellant has a right of appeal to this Court by way of rehearing. It is on that basis that the appellant advances its appeal. That is to say, it invites the Court to reconsider the merits of the case and arrive at its own view as to whether or not the suspension period was justified in the circumstances.

[12] However, if the Authority did not suspend the appellant’s licence on the ground of its suitability to hold its licence then s 139 of the Act limits the appellant’s right of appeal to a question of law:

(1) Where any party to any proceedings before the Licensing Authority under this Act 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 that question of law.

[13] Mr Krebs for the appellant accepts that its appeal cannot proceed if s 139 of the Act applies. The appellant’s quarrel is not with the Authority’s finding on any point of law but with the Authority’s assessment of the appropriate period of suspension of the appellant’s licence.

Decision of the Authority

[14] The decision of the Authority does not specify the basis upon which it suspended the appellant’s licence. However, I am satisfied that it did so on the basis of s 132(3)(a) of the Act, namely that the appellant’s premises were conducted in breach of various provisions of the Act and of a condition of the licence.

[15] In para [2] of its decision, the Authority sets out the scope of its examination:

The application for the suspension or cancellation of the club licence alleges pursuant to s 132(3)(a) of the Act that on 17 December 2010 the licensed premises were conducted in breach of the following provisions of the Act: s 53 (club licences), s 165 (unauthorised sale or supply), s 167 (allowing persons to become intoxicated on licensed premises), and s 168 (allowing drunkenness or disorderly conduct on licensed premises). In addition it is alleged that the licensed premises were conducted in breach of Condition (i) of the licence which reads:

The club committee must ensure that the provisions of the Act relating to the sale and supply of liquor to prohibited persons are observed.

Finally, in terms of section 132(b) of the Act it was alleged that the conduct of the licensee is such as to show that it is not suitable to hold the club licence.

[16] The examination which then followed focused on each of the allegations of breach of the Act and of the licence. Each allegation was found to be proved. The Authority did not address the s 132(3)(b) allegation – presumably because it considered the allegation redundant. However, passages in its decision show that it did turn its mind to the point.

[17] At para [21] of its decision, the Authority criticised submissions made on behalf of the appellant at the hearing, observing:

... Both attempts to dilute its own responsibility simply add to the club’s own culpability (in each instance) and raise serious issues in respect of its suitability to hold a club licence.

[Emphasis added]

[18] The Authority never went on to hold that the case went beyond the raising of serious issues.

[19] From para [30] onwards the Authority addressed the significance of the actions taken by the appellant after the incident to ensure that there would be no repetition. The inference I draw from those paragraphs is that the Authority accepted that the appellant continued to be a suitable entity to hold its licence. But it made it clear that, although on this occasion the appellant’s failures would be dealt with by a suspension, that might not be the case in the future:

[32] The Authority wishes to record, however, that despite all the efforts being made to improve the club’s performance and compliance with the Act, it is not satisfied that everything is being done that should be done. This club has a membership of approximately 3,400 persons. It is a large operation and requires sophisticated management. The club needs to make certain that its management is capable and will proactively regulate compliance with the Act. The Authority notes that in general terms the same management structure existed in respect of both the 2009 incident and the 17

December 2010 incident. The latter was similar to (if not worse than) the

2009 incident. The club does not seem to appreciate its precarious position should further breaches occur.

[Emphasis added]

[20] Having concluded that a suspension of the appellant’s licence for 26 days was appropriate, the Authority then delayed the commencement of the suspension until

2 November 2011 to enable the appellant to meet commitments between the date of the decision and 1 November 2011. It would not have done so had it found that the appellant was not a suitable person to hold its licence.

Decision

[21] I find that the only avenue of appeal open to the appellant is on a point of law pursuant to s 139 of the Act. No point of law has been identified, as Mr Krebs has properly conceded. It follows that the appeal must fail.

[22] For the sake of completeness, I should say that even if this were an appeal by way of rehearing I would not hold that the period of suspension was manifestly excessive. That is to say, I would not hold that it was outside the proper range of suspension available to the Authority. My reasons would be as follows:

(a) There were clear and serious breaches of the Act and of the club’s

licence. These were accepted by the appellant.

(b) This was the second time in recent years that failures to abide with the terms of the Act and of its licence with regard to supplying alcohol to

unauthorised persons were proved against the appellant. A period of suspension of four days was imposed on the first occasion.[3]

(c) The maximum period of suspension is six months.[4] A suspension of

26 days is less than one-sixth of the maximum available to the

Authority.

(d) Importantly, there is nothing before me against which I could measure the impact on the appellant of the period of suspension. I was asked by counsel to have regard to the non-profit nature of the appellant and I note that the Authority had before it the affidavit of Tony Wall, Vice President of the appellant, who deposed:

17. The Taradale Club has been serving the local community for

40 years. Bar sales are an important factor in underwriting the provision of facilities and services to our members, but

the Club now has a much wider focus than simply a place to

go for a drink with mates. We pride ourselves on having the widest range of sporting and recreational activities of any

community club in Hawke’s Bay. We have developed a

major lawn bowls facility, are home for the Taradale Bridge Club, developed a very popular youth talent quest, providing sporting facilities for use of local high school groups and local aged care facilities (Princess Alexandra and Somerset Villages).

18. We are now working in partnership with Sport Hawke’s Bay and a range of local disability services to provide facilities and activities for the participation of disabled people in the wider community.

19. The provision of such wide ranging facilities and services to our community is not directly dependent on the sale of liquor across our Club bar, but any interruption of the revenue flows from bar sales would affect our very precarious financial position and would thus be a cause of real concern in the ongoing financial resourcing of such community activities.

That would not of itself establish an adequate factual foundation for the submission that the period of suspension was clearly excessive.

(e) The Authority is a specialist tribunal acting in furtherance of its statutory purpose and within its statutory jurisdiction. I would need a proper basis for contradicting it and I would not think it proper to do so on an exercise of intuition.

Conclusion

[23] The appeal is dismissed.

[24] I note from the Minute of Miller J of 19 September 2011 that no costs are sought by the Authority. Accordingly, costs will lie where they fall.

Brewer J

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[1] _{Formosa (Napier Police) v Taradale Club Inc [2011] NZLLA PH886-887, 15 August 2011.}
[2] Mr Akuhaka has subsequently been convicted of the assault and has been sentenced.

[3] Hunt (Napier District Licensing Agency Inspector) v Taradale Club Inc PH1072/2009, _{21 September 2009.}

[4] Sale of Liquor Act 1989, s 132(6)(c).