Patel v Commissioner of Police HC Auckland CIV 2011-404-007257 [2011] NZHC 1976 (9 December 2011)

Last Updated: 6 February 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV 2011-404-007257}

UNDER the Sale of Liquor Act 1989

IN THE MATTER OF an appeal against a decision of the Liquor

Licensing Authority at Papakura

BETWEEN TANMAY RAMBHAI PATEL Appellant

AND THE COMMISSIONER OF POLICE First Respondent

AND AUCKLAND DISTRICT LICENSING AGENCY

Second Respondent

Hearing: (On the papers)

Counsel: J H Wiles for the Appellant

C Bradfield-Williams for the Commissioner

P Radich for the Second Respondent

Judgment: 9 December 2011

JUDGMENT OF WYLIE J (Application for a Stay)

Distribution:

J Wiles: [e-mail]

_{C Bradfield-Williams: [e-mail]}

PATEL V THE COMMISSIONER OF POLICE & ANOR HC AK CIV 2011-404-007257 9 December 2011

Introduction

[1] I refer to my minute of 6 December 2011.

[2] Mr Patel has appealed against a decision of the Liquor Licensing Authority given on 7 November 2011, cancelling his General Manager’s Certificate under the Sale of Liquor Act 1989, as from 14 November 2011. That appeal is to be heard on

19 April 2012.

[3] In the interim, Mr Patel has sought a stay under s 147A of the Sale of Liquor

Act.

[4] The first respondent, the Commissioner of Police, initially indicated that he intended to oppose that application. I put in place a timetable for the filing of a notice of opposition, any supporting affidavits, and any affidavits in reply and indicated that the application would be heard on Friday, 16 December 2011.

[5] I have received a memorandum from Ms Bradfield-Williams on behalf of the Commissioner of Police. She advises me that the application has been considered further, and that the Commissioner will not be advancing any opposition to the stay application.

[6] The second respondent, the Auckland District Licensing Agency, does not wish to be heard in relation to the appeal, and it has taken no stance in regard to the stay application.

Analysis

[7] Section 147A(1) provides that where an appeal is filed against any decision of the Licensing Authority, other than a decision to which s 147 applies, the decision shall continue in force and shall have effect pending the final determination of the appeal. This section is subject to subs 2 and 3, and subs 2 provides that this Court may, of its own motion, or on an application made for the purpose, order that the

decision shall cease to continue in force and shall have no effect pending the final determination of the appeal.

[8] Notwithstanding that there is no opposition, I must still be satisfied that a stay is appropriate.

[9] I have read the Authority’s decision. Mr Patel was the duty manager of an off licence situated in Mangere. He made two sales of alcohol to minors – one aged

15, and the other aged 17 years. Neither customer was asked his age or date of birth, nor was identification sought. Mr Patel accepted that he made the sales. He was unable to offer any explanation for his failure to check the age of the customers. He did state that he had asked for identification on numerous occasions in the past, and that he had previously refused service to other underage customers. When Mr Patel was asked when he should ask for identification, he prevaricated. The Authority was unimpressed with what it considered were self-serving answers Mr Patel gave to questioning in that regard. The Authority took the view that Mr Patel did not adequately appreciate his statutory responsibilities, and that he had no idea whom he should ask for identification and when. The Authority considered that Mr Patel was totally unsuitable to act as a duty manager. It therefore made the decision to cancel his certificate, rather than suspend it.

[10] Mr Wiles on Mr Patel’s behalf has applied for a stay. He submits as follows:

(a) the appeal is meritorious;

(b) Mr Patel is 33 years of age and has held a General Manager’s

Certificate since early 2009;

(c) that at the time, Mr Patel was distracted and worried about family issues. Mr Patel supports his wife and a two year-old son, and also remits money to his parents in India. He is in the process of overseeing their application for residency. He accepts that it is inexplicable that he did not think to check and ask for identification with regard to the second controlled purchase. He says that both

customers were large Polynesian boys, who looked older than they were, but he does not offer that as an excuse. He has instructed Mr Wiles that he is really angry with himself, and was in something of a panic, and that he has “blotted his copybook”.

[11] There is no supporting affidavit from Mr Patel, but in the circumstances, and given the absence of opposition, I am prepared to accept the “evidence” from the bar contained in Mr Wiles’ memorandum.

[12] Mr Patel’s notice of appeal asserts:

(a) that suspension rather than cancellation would have been a fairer outcome;

(b) the licensee’s history was not good and that this coloured the

Authority’s approach when it was dealing with Mr Patel, and

(c) evidence as to what Mr Patel said to a constable did not justify an inferential finding made by the Authority.

[13] In my view, it is appropriate to grant a stay. I reach that conclusion for the following reasons:

(a) The appeal is to be heard relatively promptly – in April 2012;

(b) The appeal is not obviously unmeritorious. The Authority, in part, relied on a statement made by Mr Patel to a constable. The Authority considered that that statement justified an inferential finding that when he affected the second sale, Mr Patel “deemed it safe to make the sale without seeking identification”. I have not seen the transcript and I do not know whether or not this matter was dealt with in the evidence. There may be other explanations for Mr Patel’s alleged comment to the officer. Further, it is arguable that suspension of Mr Patel’s General Manager’s Certificate may have been an alternative outcome.

(c) Mr Patel is now without employment, and he is unable to support his family;

(d) Mr Patel holds a General Manager’s Certificate. Either the Authority or the District Licensing Agency must have had regard to his experience and training when the certificate was issued to him in

2009. To obtain the certificate Mr Patel would have been required to successfully complete a training course or hold a relevant qualification. Mr Patel should be aware of his statutory responsibilities.

(e) Given the present situation, I consider it highly unlikely that Mr Patel will commit any further breaches of the Act. Obviously, if he were to do so, it would have extremely serious consequences for him.

[14] Accordingly, I make an order under s 147A(2) that the decision of the Authority cancelling Mr Patel’s manager’s licence is to cease to continue in force and shall have no effect pending the final determination of the appeal.

[15] It is not appropriate to make any costs orders on the present application and I

_{decline to do so.}

_{Wylie J}

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