|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
Last Updated: 17 April 2018
|
IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
|
|
CIV-2017-409-000773
[2018] NZHC 496 |
|
BETWEEN
|
CANTERBURY MEDICAL OFFICER OF HEALTH
Appellant
|
|
AND
|
BOND MARKETS LIMITED
Respondent
|
|
Hearing:
Further Submissions:
|
19 and 20 February 2018
Appellant – 23 February 2018
Respondents – 28 February 2018
|
|
Appearances:
|
C P Browne for Appellant I J Thain for Respondent
Counsel for Affected Parties:
C F Timbs for General Distributors Limited
M N Zarifeh for Christchurch District Licensing Inspectors
|
|
Judgment:
|
21 March 2018
|
JUDGMENT OF GENDALL J
[1] The appellant seeks to appeal a decision by the Alcohol Regulatory and Licensing Authority (the Authority).1 By that decision, the Authority granted the respondent’s alcohol licence for pragmatic reasons, overturning the earlier decision by the District Licensing Committee (the Committee).
[2] As initially pleaded, the appellant did not seek to overturn the outcome of the Authority’s decision but accepted that the decision to grant the licence was justified. Instead, it wished the Court to make certain declarations about the appropriate method
1 J & C Vaudrey Ltd v Christchurch District Licensing Inspector [2017] NZARLA PH-294-295.
CANTERBURY MEDICAL OFFICER OF HEALTH v BOND MARKETS LIMITED [2018] NZHC 496
[21 March 2018]
by which the Authority should apply the relevant law in making its decisions. Post- hearing of this matter before me, however, the appellant somewhat resiled from this position and at this very late stage it seeks leave to amend its Notice of Appeal to include relief in the form of the Authority’s decision being overturned.
[3] The respondent submits that there is no jurisdiction for the Court to hear such an appeal and that the declaration sought should not be granted. It says, too, that no leave to amend the Notice of Appeal at this late stage is appropriate.
[4] I turn, first, to consider this jurisdiction issue and the appellant’s application seeking leave to amend its Notice of Appeal. If the appellant fails on these two aspects then its present appeal must be dismissed.
The Statutory Position
[5] The only means by which the Authority’s decision can be appealed is under s 162 of the Sale and Supply of Alcohol Act 2012 (the Act):
162 Appeal against decision of licensing authority on question of law
(1) Subject to subsection (3), where any party to any proceedings before the licensing authority (whether the proceedings commenced in a licensing committee or the licensing authority) 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 the question of law concerned.
(2) Subject to sections 152, 153, 161, and 163 to 166, every appeal under this section must be dealt with in accordance with rules of court.
(3) This section does not apply to a decision by the licensing authority to cancel a licence under section 289 or to cancel a manager’s certificate under section 290.
[6] The initial consideration in this jurisdictional issue is what is considered to be the Authority’s ‘determination’ in terms of s 162(1).
[7] The terms ‘decision’ and ‘determination’ were clearly used interchangeably in the Act by the drafters. The heading of s 162 used the word “decision”, while the body of the provision uses the word “determination”. In s 158 of the Act, which deals with
an appeal to the Authority from a Licencing Committee, the position is different with the words “decision under appeal” being used in the body of the provision.
Respondent’s submissions
[8] It is useful to consider, first, the respondent’s arguments on this jurisdiction issue. As to these, Mr Thain, for the respondent, began by submitting that the relevant determination in this case is the Authority’s decision to allow the respondent’s appeal and modify the Committee’s original decision by approving the alcohol area the respondent proposed. Mr Thain suggests that rights of appeal here must “relate to the orders made by the courts and not to a judge’s intermediate reasoning steps”.2 He points to the Supreme Court’s statement in Arbuthnot v Chief Executive of the Department of Work and Income that:3
It is fundamental that an appeal must be against the result to which a decision- maker has come, namely the order or declaration made or other relief given, not directly against the conclusions reached by the decision-maker which led to that result, although of course any flaws in those conclusions may provide the means of impeaching the result. A litigant cannot therefore, save perhaps in very exceptional circumstances, bring an appeal when they have been entirely successful and do not wish to alter the result. The successful litigant cannot seek to have the appeal body overturn unfavourable factual or legal conclusions made on the journey to that result which have had no significant impact on where the decision-maker ultimately arrived. In short, there is no right of appeal against the reasons for a judgment, only against the judgment itself.
[9] Mr Thain suggests that the appellant’s position was clear (until reply submissions) that it did not consider the Authority’s acts or determination to be erroneous in law, because it accepted that the result was justified (albeit for pragmatic reasons). As the appellant is not dissatisfied with the Authority’s decision to grant the licence, Mr Thain submits it is not in fact appealing the Authority’s decision. Consequently, there is no jurisdiction for the appeal. The mere fact that the appellant considers that the answers to his question would be helpful for the Authority in future cases, does not create jurisdiction where there is none provided by the Act.
2 Colman v Police [2010] NZSC 147 at [9].
3 Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55 at [25].
[10] The respondent’s position is that the appeal is in substance, and not merely technically, an appeal against statements made by the Authority in the course of its reasons, rather than an appeal against the Authority’s decision itself. Mr Thain maintains that the appellant has consistently demonstrated in its submissions that it accepts that the pleaded errors did not affect the result. Thus, he says that the appellant here is merely seeking a general advisory opinion which would be inappropriate and unhelpful for this Court to give.
Appellant’s submissions
[11] In response, Mr Browne, for the appellant, contends that there is jurisdiction for the Court to hear this appeal. He suggests the appellant was the unsuccessful party before the Authority as initially it sought to have the respondent’s application denied. It considers that the Authority made several errors of law in reaching that adverse outcome. The only reason it has not sought from this Court an order that the decision be sent back for reconsideration is a pragmatic one. The appealed decision is in respect of a past period and there would be no practical effect.
[12] In addition to this being an appeal by an unsuccessful party, Mr Browne contends that the circumstances are such that there would be jurisdiction even if that were not the case. The Authority gave its decision, he says, expecting that the Committee would use it as guidance when determining this renewal application and, indeed, in other licence renewal applications. Thus, it is said it constitutes a form of riding instructions. The appellant’s position is that the guidance given by the Authority contains errors of law and it is this that it says it seeks to overturn.
Appellant’s reply submissions of 23 February 2018
[13] Pursuant to a minute I issued in this matter on 20 February 2018 the appellant was to have until 23 February 2018 to file and serve reply submissions. This was because hearing time in this proceeding had run out late on 20 February 2018. In those reply submissions, counsel for the appellant generally for the first time made a formal request that, if this Court was to find there was no jurisdiction for this appeal, leave was sought to amend its Notice of Appeal to include as relief the setting aside of the Authority’s decision. On this aspect, Mr Browne submitted that leave should be
granted because, he says, notice that such an amendment would be sought was signalled as a possibility in a judicial telephone conference on 23 November 2017. Furthermore, he says no party would be disadvantaged by this, as all parties at the hearing fully addressed the substance of the appeal. Finally, Mr Browne contends that allowing such an amendment to cure a technical objection here would be in the broad interests of justice.
Respondent’s reply submissions of 28 February 2018
[14] The reply submissions filed on 28 February 2018 by counsel for the respondent noted the opposition of the respondent to the appellant’s application for leave to amend its Notice of Appeal. In particular, Mr Thain maintained that the appellant had ample warning throughout of the respondent’s arguments about jurisdiction, notice having been given prior to the hearing. He takes issue, as I understand it, with Mr Browne’s suggestion that the possibility of the amendment he now seeks was signalled earlier and he says that, in any event, the Court should not, at this very late stage, grant leave for that amendment. He suggests this changes the entire face of this appeal and the respondents have had no proper opportunity to fully respond on that issue.
Case Law
[15] Mr Thain points to the Supreme Court decision in Independent Fisheries Ltd and Clearwater Land Holdings Ltd v Minister for Canterbury Earthquake Recovery as one which dealt with a similar jurisdictional problem.4 There, the applicants challenged in the High Court two decisions of the Minister for Canterbury Earthquake Recovery. Their judicial review succeeded, and the High Court set aside the Minister’s decisions. The Minister and other local government bodies appealed the decision. The Court of Appeal dismissed the appeal but on the basis of different reasoning from that of the High Court.
[16] The applicants then sought leave to appeal the Court of Appeal’s decision, despite being successful. They preferred the High Court’s reasoning and wanted the Supreme Court to reinstate those reasons. The Supreme Court phrased the applicants
request as seeking “the reversal of some of the Court of Appeal’s reasons for judgment and the restoration of the reasons for judgment of the High Court”.5 The Court considered this to be quite different from seeking the reversal of a decision.
[17] The Court distinguished the facts before it from cases such as R v Gordon- Smith6 and Re Greenpeace of New Zealand Inc,7 the former of which the present appellant seeks to rely on. In R v Gordon-Smith, Ms Gordon-Smith was entitled to seek leave to appeal because she had received a judgment adverse to her in that the Court of Appeal had reversed a favourable pre-trial ruling.
[18] In Re Greenpeace, Greenpeace was granted leave to appeal the Court of Appeal’s decision as it was only partly successful before it. The Court of Appeal had given ‘riding instructions’ to the original decision maker for it to apply when reconsidering its decision. The Supreme Court in Independent Fisheries considered that, as the Minister in that case had not been ordered to reconsider his decision, Re Greenpeace did not apply.
[19] The Supreme Court in Independent Fisheries decided that:8
In so far as the Minister or the other respondents may subsequently make decisions which rely on reasoning in the Court of Appeal’s judgment, the applicants, if they are adversely affected by those decisions, will be able to challenge them in the normal way.
[20] But, the Supreme Court considered in that case that the applicants were merely seeking an advisory opinion on the Minster’s powers. It held that it did not have jurisdiction to give such an opinion and, in any case, it would be inappropriate to do so as:9
When in the future the Minister makes decisions under the Canterbury Earthquake Recovery Act 2011, it is much more appropriate that any challenge to such decisions be made and considered in the normal way, in light of the facts and circumstances underlying such decisions.
5 At [3].
6 R v Gordon-Smith [2008] NZSC 56, [2009] 1 NZLR 721.
7 Re Greenpeace of New Zealand Inc [2013] NZSC 12.
8 At [6].
9 At [7].
[21] And, the Supreme Court had stated earlier in R v Gordon-Smith10 that, in general, advisory opinions are not appropriate for the following reasons:
...first, the importance of the adversarial nature of the appellate process in the determination of appeals, secondly the need for economy in the use of limited resources of the appellant courts and, thirdly, the responsibility of the courts to show proper sensitivity to their role in the system of government.
Analysis
Is the appellant appealing a “determination” of the Authority?
[22] Section 162 of the Act clearly limits appeals to situations where the appellant is “dissatisfied with any determination of the Licensing Authority in the proceedings as being erroneous in point of law...”
[23] As I have noted above, the term “determination” as well as the term “decision”, both of which it seems have been used interchangeably, refer to the result of a judgment. When that result is appealed, this will necessarily require the appellate Court to consider the reasons by which the result was arrived at. However, the Court’s analysis of those reasons is tied towards its consideration of whether the resulting judgment was correct or not. As the decision in Arbuthnot v Chief Executive of the Department of Work and Income11 noted, the law is clear that “there is no right of appeal against the reasons for a judgment, only against the judgment itself.”
[24] I consider that this appeal, as initially pleaded, is unquestionably one against the reasons for the Authority’s decision rather than the decision itself. Any judgment I give would therefore be in the nature of an advisory opinion which is not appropriate here.
[25] And, as to the appellant’s argument that the Authority in setting out its reasons has effectively given riding instructions to the Committee for when it is to hear the respondent’s renewal application, I am not entirely persuaded that its decision goes this far. Mr Browne for the appellant in particular points to the Authority’s express invitation at [77] where it stated:
10 R v Gordon-Smith, above n 6 at [18].
11 Arbuthnot v Chief Executive of the Department of Work and Income, above n 3 at [25].
...the [Committee] could, if it was so minded, decline to take into account the s 112(1) purpose for this limb of the test...
[26] Although it is not strictly necessary for me to decide this point, I comment that the statement noted above, at one level, does not equate to the riding instructions given by the Court of Appeal in Re Greenpeace.12 The Authority, in my view, has not endeavoured to constrain the Committee into following its approach as it used terms such as “could” and “may”. The Committee is not bound by that suggestion. Furthermore, this case differs from Re Greenpeace because the Authority here, in making its decision, did not remit the matter back to the Committee to remake the decision in light of the Authority’s explanation of the law. Instead, the Authority substituted its own decision for the Committee’s. Indeed, it may be that the Committee might use the Authority’s decision to guide its own but it would be making a separate decision on a different, albeit reasonably similar, set of facts.
[27] In Independent Fisheries,13 however, the applicant was the successful party in the decision it sought to appeal. While the appellant in the present case was unsuccessful before the Authority I consider that the present appeal is similar to that advanced in the judicial review application in Independent Fisheries because of the nature of what the appellant is asking the Court to do here. The substance of the present appeal relates to the way in which the Authority determined whether to grant the respondent an alcohol licence. The appellant has expressly stated that it does not seek to overturn the result. This is a key factor which differentiates this case from a true appeal against a decision.
[28] Overall, I am satisfied that what the appellant is seeking here is simply a general advisory opinion which it is not appropriate for the Court to give in these circumstances. I conclude that therefore there is no jurisdiction for the Court to hear this appeal as presented.
12 Re Greenpeace, above n 7.
Should leave be granted for the appellant to alter its Notice of Appeal?
[29] As I have noted above, the appellant at this very late stage has now sought leave to amend its Notice of Appeal to include an order sought to set aside the Authority’s decision itself. Mr Browne for the appellant, contends that allowing such a cure to what he describes as a mere technical objection would be in the interests of justice here. He has suggested, too, that the fact such a possible amendment would (if necessary) be sought was signalled at a judicial telephone conference on 23 November 2017, although Mr Thain for the respondent takes issue with this. Furthermore, Mr Browne says no parties would be significantly disadvantaged by this as all have had the opportunity to fully address the substance of the appeal at the hearing before me.
[30] The respondent opposes the application for leave to amend. It does so partly because of the late stage in the proceedings where this has been raised and what it says is the failure of counsel to give formal notice of such an application earlier. Mr Thain repeats that the appellant’s purported appeal is in substance an appeal against statements made by the Authority in the course of its reasons, rather than an appeal against the Authority’s determination itself. The proposed amendment, he says, seeks to hide this true nature of the appeal.
[31] In order to obtain leave to take such an amending step, not only after the close of pleadings date but also after what is effectively the close of the trial here, it is necessary for the appellant to “surmount the three formidable hurdles” of showing that doing so would be in the interests of justice and it would not significantly prejudice other parties or cause significant delay.14 The Court must weigh these constraints against the principle that parties should have every opportunity to ensure that the real controversy between them is determined.15
[32] Whilst it is possible that at the earlier judicial telephone conference he refers to Mr Browne may have mentioned the possibility of a leave application of this type, what is clear is that Mr Browne did not highlight the possibility again during written
15 Shanton Apparel Ltd v Thornton Hall Manufacturing Ltd [1989] NZCA 159; [1989] 3 NZLR 304 (CA) at 309.
submissions or at trial. It is true that during the two day hearing in this proceeding before me, the parties to some extent addressed the substance of the appeal. There are possible arguments therefore, first, that no party would be unduly disadvantaged by leave being given now and, secondly, that the alteration might cause no real delay. However, I must still consider whether it is in the interests of justice to grant leave in light of what the true nature of the dispute between the parties is here. As to that aspect, in my view, the true nature of the appellant’s dispute relates to the way in which the Authority interpreted the Court of Appeal’s judgment in J & C Vaudrey Limited v Canterbury Medical Officer of Health.16 This appears to have been its focus throughout submissions and in the questions of law it has submitted. This is also clear from the appellant’s repeated acknowledgment that the Authority was entitled to come to the decision it did for pragmatic reasons.
[33] A further possible factor pointing towards allowing the amendment is to ensure that the time spent by the Court and the parties to date in providing and considering argument on the substantive issues of the appeal is not wasted. Furthermore, the proper application of the Act in light of the previous High Court and Court of Appeal decisions is important. The Authority’s decision will likely be used, to an extent, to guide future decisions by the Committee on applications by the respondent and in other cases. There would be some benefit in having the law clearly set out now so those decisions can proceed on a correct basis.
[34] However, considering all the overall circumstances here, on balance I consider that it would not be in the interests of justice to grant leave in this case to the appellant to amend the relief it seeks. Some delay would be likely to occur as the respondent and the related parties have had no real opportunity to present full submissions on this leave to amend application, given it was not raised until after conclusion of the hearing. And, in any event, I am of the view that, even with the appellant’s amendments, this appeal is not likely to result in the alteration of the Authority’s decision, because any errors were not material to its conclusion reached essentially for pragmatic reasons.
16 J & C Vaudrey Limited v Canterbury Medical Officer of Health [2016] NZCA 539.
[35] I consider, too, that the Supreme Court’s reasoning in Independent Fisheries17 applies here. The appellant will be able to challenge any future decision that relies on the Authority’s reasoning in the normal way. It is more appropriate, as I see it, for the Authority’s reasoning to be tested in such a case in light of the facts and circumstances underlying that particular decision. After all, the Court’s role is to apply the law to a specific set of facts. It would be inappropriate for this Court to merely give what is in essence an advisory opinion on how its previous decision should be applied. Such an opinion could easily prove unhelpful to decision-makers. It also does not reflect this Court’s role.
[36] For all these reasons I decline leave to the appellant to amend its Notice of Appeal.
Could the pleaded errors of law have affected the Authority’s ultimate decision?
[37] If this appeal was to be allowed to proceed (and I have decided otherwise), in order for it to be successful, any errors of law needed to have been material to the Authority’s decision.18 Although given my decisions noted above, both on the lack of jurisdiction here and refusing leave to amend the Notice of Appeal, it is not strictly necessary for me to address this aspect, for completeness it is useful that I add certain comments which I now do.
[38] In his earlier written submissions for the appellant, Mr Browne acknowledged throughout that the Authority’s decision was justified based upon pragmatic considerations relating to the passage of time relative to the licence renewal. In this regard, Mr Browne stated in his submissions:
This appeal on questions of law does not seek to reverse the decision to grant the off-licence...The appellant accepts that the passage of time taken by the series of appeals has meant that the time period of both the licence and its first renewal has almost expired (July 2018) and that that consideration justified approval of the status quo until the next consideration.
(Emphasis added)
18 Manos v Waitakere City Council [1996] NZRMA 145.
[39] It seems now, subsequent to closure of the hearing in this proceeding, that the appellant is endeavouring to argue that this statement, however, might not accurately set out its position. As best I can tell, the appellant appears to contend now that the Authority’s decision was wrong in points of law and that errors of law were made in reaching the decision. The appellant might seem now to recognise that correcting the legal errors would not necessarily determine the outcome but it argues that there is a possibility the Authority would have reached a different decision if it had approached the s 112(1) purpose correctly. (This provision relates to the need to limit the exposure of shoppers to displays, promotion and advertising of alcohol). On this aspect, Mr Browne submitted:
Although the final decision involved balancing competing considerations, the appellant argues that the balancing must be presumed to have been affected by legal errors affecting assessment of one of the mandatory considerations (the s 112(1) purpose).
[40] In his reply submissions, Mr Thain for the respondent maintains that the appellant’s actual view, as revealed by the bulk of Mr Browne’s submissions, was that it considered the Authority properly made its decision to grant the licence for pragmatic reasons, despite what it may have found when applying the test under s 112(1). On this, the respondent points to the following statements advanced for the appellant:
The decision to grant the licence on the basis proposed was for pragmatic reasons, rather than because the single area proposed by the [respondent] was consistent with the express purposes of the single area provisions set out in s 112(1).
And:
In fact, although [the Authority] said that it was declining to take that s 112(1) purpose into account, it appears not to have done so but rather to have decided to grant the licence despite its assessment of the consistency of the proposed area with the s 112 purpose, because of timing pressures on the licensing process arising from the delays associated with the appeals.
And:
All that the passage in the [Court of Appeal] decision can have been intended to mean is that the assessment is not determinative and, in some circumstances, there may be reason to impose a single area condition that is not consistent with the s 112(1) purpose. That appears to be what happened in this case, where the delays arising as a result of the appeals mean that the current licence will shortly expire...
(Emphasis added)
[41] These statements by the appellant would seem to acknowledge what is clear from the decision of the Authority. This is to the effect that, even if the Authority had misstated or misapplied the correct legal position, any errors did not impact on its ultimate decision that, simply because of pragmatic reasons, a licence should be granted for the now expired period. The Authority considered it was not reasonable or in the interests of justice for the decision to be remitted back to the Committee for further reconsideration. Therefore, even if this Court were to find that the Authority had made errors of law, as the appellant submits, it is unlikely in my view that those errors affected its ultimate decision. In that case this Court would not overturn the Authority’s decision because the errors were not material.19
Result
[42] For reasons outlined above, I have found that there is no jurisdiction here for the appellant’s appeal because it does not properly challenge the determination made by the Authority. In terms of s 162 of the Act an appeal is allowed only against the Authority’s ultimate determination or decision and the appellant here is unable to appeal the reasons for the Authority’s decision. As the appellant does not challenge the decision itself there is no jurisdiction for this Court to hear the appellant’s appeal.
[43] Further, and for those particular reasons which are also outlined above, I decline leave to the appellant to amend its Notice of Appeal.
[44] This appeal is therefore dismissed.
19 This approach was upheld in Manos v Waitakere City Council, above n 18.
Costs
[45] As to costs here, they are reserved. No submissions on costs were advanced to me. Counsel instead have requested they might now have an opportunity to do so.
[46] Accordingly, I now direct that all counsel are to file and serve submissions on costs (sequentially) which are to be referred to me and, in the absence of any party indicating they wish to be heard on the matter, I will decide the question of costs based upon the memoranda filed and all the material before the Court.
.................................................
Gendall J
Wilson Harle, Auckland
DLA Piper New Zealand, Auckland Berry Simons, Auckland
Raymond Donnelly & Co, Christchurch
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2018/496.html