McDowell v Outboard Boating Club of Auckland Incorporated [2000] NZLLA 576 (26 April 2000)

Last Updated: 2 October 2010

Decision No. PH 576 – 577/2000

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an appeal by RICHARD WARNE McDOWELL pursuant to s.137 of the Act against a decision of the Auckland District Licensing Agency granting an application by Outboard Boating Club of Auckland Incorporated for a special licence in respect of premises situated at 7 Tamaki Drive, Auckland, known as "Outboard Boating Club"

BETWEEN RICHARD WARNE McDOWELL

(Police Officer of Auckland)

Appellant

AND OUTBOARD BOATING CLUB OF AUCKLAND INCORPORATED

Respondent

AND An appeal by GARY SELWYN WHITTLE pursuant to s.137 of the Act against a decision of the Auckland District Licensing Agency granting an application by Outboard Boating Club of Auckland Incorporated for a special licence in respect of premises situated at 7 Tamaki Drive, Auckland, known as "Outboard Boating Club"

BETWEEN GARY SELWYN WHITTLE

(Auckland District Licensing Agency Inspector)

Appellant

AND OUTBOARD BOATING CLUB OF AUCKLAND INCORPORATED

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum:

Chairman: District Court Judge J P Gatley
Member: Mr R J S Munro

HEARING at AUCKLAND on 21 March 2000

APPEARANCES

Sergeant M J Lopdell – NZ Police – appellant
Mr G S Whittle – Auckland District Licensing Agency Inspector – appellant
Respondent – no appearance

DECISION

By application dated 30 November 1999 Outboard Boating Club of Auckland Incorporated (the respondent) made application to the Auckland District Licensing Agency (the Agency) for a special licence pursuant to s.73 of the Act. The particular occasion or event or series of occasions or events in respect of which the special licence was sought was given as "Louis Vuitton Cup and Americas Cup". The days and hours that the occasion or event or series of occasions or events would occur were given as "7.00 – 1.30 pm seven days per week".

The days and hours during which the respondent intended to sell liquor if the licence was granted were give as "7:00 – 1:30 pm seven days per week for six months from 30th November, 1999 to 31st May, 2000".

The applicant was signed "M D Hayes" as applicant. In a covering letter to the Agency in support of the application dated 2 December 1999, on letterhead of "M.D. Hayes C.A. Chartered Accountant, Taxation Consultant the '7:00'" was specified to be 7.00 am and the 1.30 pm to be '1.30 am the following day, seven days per week".

The application was opposed in reports from Constable R W McDowell on behalf of the Police dated 17 December 1999 and in an undated report from Mr G S Whittle as Agency Inspector.

The application was opposed in the Police report on the basis that "the applicant cannot justify a special licence for the days and hours sought. They should be applying (for) a club licence."

In the Inspector's report the application was opposed on the following basis:-

"What is being proposed is the normal business of a Club and the applicant organisation should be lodging an application for a Club Licence.

Not a substitute for a permanent licence. "A Special Licence should not be issued as a substitute for a permanent licence. See re an appeal by the N.Z. Police LLA Decision 1813/92, DORMER SHERRIFF CROOKSTON, 1-151 73.10.""

Agency Hearing

The application was considered at a public (in part) hearing of the Agency held in Auckland on 28 January 2000. The Agency decision appealed against is dated 3 February 2000 and records that the Agency accepted that the application for the special licence had been made by Mr M D Hayes "on behalf of" the respondent Boating Club.

The Agency decision also records that at the hearing Mr J Whiting had given evidence on behalf of the Boating Club:-

1. That both the Louis Vuitton and the Americas Cup regattas were a very special event for them.
   
2. The club had obtained a written agreement with Team New Zealand for Team New Zealand to have their onshore operation headquarters in the Boating Club's clubrooms.
   
3. A sign on Tamaki Drive "states that the club is the Team New Zealand shore base".
   
4. Club members have been invited to attend both the race briefings and post race debriefings.
   

Hours sought by the Boating Club in its application, amended after having regard to the covering letter of Mr M D Hayes, of 7.00 am to 1.30 am the following day seven days a week "were necessary to cover activities associated with this event".

Submissions at the hearing in opposition to the application being granted were made by Mr Whittle as Inspector and Sergeant Lopdell for the Police.

Mr Whittle submitted that the event was the actual racing in the Hauraki Gulf and that watching the race on television at the club was part of normal club type activity. The club should therefore apply for a club licence.

The Agency decision does not record any submissions in opposition on behalf of the Police.

The Agency concluded that "the application meets the requirements of the Act". Quoting from the Agency decision:-

"In summary, the reasons are:

• This is a particular event for the applicant due to the presence of the Team New Zealand onshore operations base and the unique opportunity for members to interact with Team New Zealand Officials
  
• The spread of hours have been amended to be more in line with the briefing/debriefing process and are less than the hours that might be sanctioned by the Authority under a club licence;
  
• The issue of building non compliance can be dealt with conditionally
  

The Agency therefore determine:

That the Special Licence Application by the Outboard Boating Club of Auckland Incorporated ("the Club") for a Special Licence pursuant to Section 73 of the Sale of Liquor Act 1989 be approved to sell and supply liquor on the subject premises to any person attending the following occasions or events:

Team New Zealand briefings/debriefings associated with the Louis Vuitton and Americas Cup Regatta, and associated activities, through to 9th March 2000."

The Agency decision described the licence being issued subject to seven conditions of which we quote three:-

"4. Only members of the Outboard Boating Club Inc. of Auckland, their guests and Team New Zealand personnel will be allowed entry.

5. 5. The hours of the licence will be restricted to 12.00 noon through to 10.30 pm on any one day for the duration of the licence being from the date of this decision through to 9th March 2000.
6. 6. The applicant shall meet the Building Act requirements prior to the issue of this licence."
   

The Agency decision was dated 3 February 2000. Notices of appeal were filed by the Police on 8 February 2000 and by the Inspector on 9 February 2000. The Agency decision included a further condition:-

"7. The licence shall not issue until the expiry of ten working days after the date from which the notice of the decision is given to any party to the proceedings. That period is the time provided by s.137(1) of the Act for the lodging of a notice of appeal."

Section 137(8) provides:-

"(8) Except in a case to which subsection (9) of this section applies, the effect of the decision under appeal shall be suspended pending the outcome of the appeal."

Subsection (9) is not relevant to this appeal.

In consequence, the special licence approved by the Agency never issued.

Subsection (6) of s.137 of the Act provides that every appeal to the Authority against a decision of a District Licensing Agency shall be by way of rehearing. Mindful of that fact the Police sought from the Agency a transcript of the evidence given by and cross-examination of Mr John Whiting who gave evidence on behalf of the Boating Club at the hearing for the Agency. The Police were advised that although evidence was recorded, it had not been transcribed.

On 1 March 2000 Mr M D Hayes, as agent of the Boating Club, advised our Secretary that he would attend the hearing of the appeal. By letter dated 13 March 2000 Mr Hayes further advised our Secretary:

"I have now been instructed by my Client Club that they do not wish to continue the appeal. Accordingly I ask that you accept this letter as a request to abandon the fixture and the Outboard Boating Club of Auckland Incorporated original request to proceed with the matter."

The appellants were the Police and the Inspector. It was not open to the club to "abandon" the appeal.

As the respondent chose not to appear or be represented at the hearing of the appeal, the only material upon which this Authority can determine the appeal is:-

1. The Agency decision appealed against.

2. Minutes of a meeting of the Agency held on Friday 28 January 2000 commencing at 9.30 am. These Minutes were annexed to submissions of Mr G S Whittle made at the hearing of the appeal.
3. Submissions from Sergeant M J Lopdell of the Police.
   

Police Submissions

Sergeant Lopdell reminded the Authority that s.78(1) of the Act obliges the Secretary of the Agency on receiving an application for a special licence to send a copy of it, and of each document filed with it (our emphasis) to the Police and an Inspector. Sergeant Lopdell pointed out that the covering letter of Mr Hayes dated 2 December 1999 in support of the application was not included with the copy application forwarded to the Police. The omission was significant in that the trading hours mentioned in Mr Hayes letter as being sought by the respondent considerably exceeded those stated in the application for a special licence.

At the hearing of the appeal before us, Sergeant Lopdell referred to "an alleged involvement by Team New Zealand in this club for the duration of the yacht racing" and called Constable R W McDowell to give evidence on this point. Constable McDowell said:-

"On 28 January 2000 the Auckland District Licensing Agency heard an application for a Special Licence by the Outdoor Boating Club of Auckland Incorporated.

The Agency ruled in favour of the applicant, decision no 1/2000.

A witness for the applicant club John Braidwood Whiting stated in evidence Team New Zealand's on shore operations were based at the club. He said Team New Zealand have a pre racing briefing at 9am and a debriefing at 4.30pm. Boating club members were invited to these meetings.

On 7 February 2000 I served a notice of appeal on the executive officer of the club, Lois Badham. I questioned Badham in relation to Mr Whitings evidence.

I asked Badham if Team New Zealand had their on-shore base at the club. She replied no, AC2000 have their on-shore base at the club. She explained that AC2000 were responsible for course management, setting the marks for racing.

I asked Badham if Team New Zealand had race briefings and de briefings at the club. She replied no, AC2000 held a short briefing about 8.am prior to going out on the course. They would return in the afternoon around 4pm and have a de briefing. I asked Badham if the club provided breakfasts, lunches and dinners. She replied no, AC2000 race committee had usually eaten at home prior the morning briefing. A packed lunch was provided which the committee take onto the course. Badham said she was not aware of any intention to provide meals at the clubrooms.

When leaving I noticed a large sign situated at the entrance to club. It read Americas Cup 2000 Shore Base."

From Companies Office searches either produced by Constable McDowell or obtained by the Authority, we learnt that although the Directors of Team New Zealand Limited and AC2000 Limited are the same, the shareholders vary. The shareholders in Team New Zealand Limited are Team New Zealand Trustee Limited as to 99 shares and Richard Harkle Green as to 1 share. Sir Thomas Clark and Messrs G R W France, R A Green, R J O'B Hoare and J O Lusk each hold 2 of a total of 10 shares in Team New Zealand Trustee Limited. The only shareholder in AC2000 Limited is Team New Zealand Limited as to 1,000 shares.

Authority's Conclusion and Reasons

The events in respect of which the special licence was sought having passed, it would have been open to the Authority to comment that determination of this appeal has become of academic interest only with no practical result and therefore should be dismissed. However, the Police and the Inspector have both expressed a desire that the Authority's view on the factual situation be made known.

On the limited material upon which the Authority is able to "rehear" the application, our conclusion is that the granting of the special licence was not warranted on the evidence presented to the Agency. Events since the Agency hearing confirm our view.

If regard is had to Mr Hayes' letter of 2 December 1999 as forming part of the application, statements in it are not borne out by evidence given to the Agency and subsequent events.

Mr Hayes said that from early December 1999 "Team New Zealand will be utilising the club's premises as its operational headquarters". In giving evidence at the Agency hearing Mr Hayes modified this to the club hosting "the Team New Zealand support team". In response to questions from Councillor J M Yates as Chairman of the Agency, Mr Whiting had said that the club premises were:

"the on-shore base of the Team New Zealand operation. Everything that happens for the operations other than the sailing boats." (our emphasis)

On being asked by Councillor Yates how many Team New Zealand officials might be in attendance at the club premises during the America's Cup Mr Whiting replied "2-4 people in attendance all the time apart from the briefing and debriefing".

In response to a question from Sergeant Lopdell as to where the America's Cup races were taking place Mr Whiting said "on the Waitemata Harbour about 3 or 4 kms from the club".

The fact that Team New Zealand's on-shore base was not at the club was confirmed in the evidence of Constable McDowell quoted earlier in this decision.

The approach of both the Inspector and the Police in their reports in opposition to the special licence application being granted, and in submissions to the Agency, was that the respondent should have been seeking a club licence; in accordance with previous decisions of the Authority and s.96 statements a special licence should not be granted as a substitute for a club licence. The material before the Authority records that the respondent was unable to obtain a club licence because of its inability to obtain a certificate by the local authority in terms of s.55(1)(e) of the Act that the proposed use of the premises met requirements of the Building Code. The minutes of the hearing before the Agency record that Mr Whiting was asked "to explain the non-compliance". Quoting from the minutes:-

"Mr Whiting ... stated that the handrail around the deck did not meet the one metre requirement. The handrail had cris-crosses on it that could allow a small child or baby to crawl through the gaps and fall into the water. Mr Whiting advised that this will be fixed very quickly as now the issue has been pointed out it is considered a safety risk to the Club.

Mr Whittle confirmed for the committee that if the work was done the building would then be given approval in terms of the Building Code requirements."

The Agency dealt with this point by making the grant of the special licence conditional on the applicant meeting "the Building Act requirements prior to issue of this licence".

We can assume that the Agency had regard to the following statement in Mr Hayes' letter of 2 December 1999 which formed part of the application:-

"Although this Cup series extends for a longer period than the special licence application covers (being a six month period) as the Club has also requested that I lodge an application for a club liquor licence it is anticipated that this matter would be concluded prior to the expiry of the special licence period."

A special licence was originally sought by the respondent for the period ending 31 May 2000. That date was amended at the hearing to 31 March 2000. The special licence approved by the Agency included an expiry date of 9 March 2000. As at 18 April 2000 no application has been made by the respondent for a club licence.

We accept the submissions of the Inspector and Sergeant Lopdell that in seeking trading hours of 7.00 am to 1.30 am the following day, seven days a week, for a period of six months, albeit reduced at the hearing before the Agency, the respondent was seeking a special licence in place of a club licence for hours well in excess of those that would normally be authorised for a sporting club. Faced with such an application the Authority would not consider the grant of a special licence to be warranted.

As at the date of the application and Agency hearing, s.73 of the Act provided:-

"73. Special licences – A special licence shall authorise the holder of the licence to sell and supply liquor, on the premises or conveyance described in the licence, for consumption on the premises or conveyance, to any person attending any particular occasion or event or series of occasions or events described in the licence."

There was no evidence before the Agency that persons present on the respondent's club premises would be attending the Louis Vuitton Cup or the America's Cup. It follows that the evidence did not warrant the issue of a special licence in terms of s.73.

Section 80(3)(a) requires the Agency, when setting hours in a special licence, to have regard to the days on which and the times at which persons will be participating in the occasion or event. There was no evidence before the Agency that during the trading hours approved, i.e. "12.00 noon through to 10.30 pm on any one day for the duration of the licence being from the date of this decision through to 9th March 2000" people attending the respondent's club premises would be participating in the occasion or event stipulated in the application as the "occasion or event or series of occasions or events" for which the licence was sought.

The Agency decision appealed against includes at page 2:-

"The club had obtained a written agreement with Team New Zealand for Team New Zealand to have their on-shore operation headquarters in their clubrooms. A sign on Tamaki Drive states that the club is the Team New Zealand shore base. Club members have been invited to attend both pre-race briefings and post-race briefings."

On this point Sergeant Lopdell submitted:-

"It appears that the Agency accepted these statements as fact although these issues were challenged by both the Police and Mr Whittle. The Police sought that a copy of the agreement be made available. That was declined. Constable McDOWELL will give evidence that the sign referred to indicates that the Club is the shore base of AC2000. He will give evidence that there were no Team New Zealand officials at the club. He will give evidence that AC2000 had briefings and debriefings at the club, not Team New Zealand. He is able to give evidence that both the Team New Zealand shore base and Administration offices are situated in premises adjacent to the Viaduct Basin. It is my submission that those statements as recorded are factually incorrect. I would submit that most New Zealanders would know that Team New Zealand's shore base was at the Viaduct basin."

We accept that submission.

It follows from the above that the appeals by the Police and the Inspector against the decision of the Auckland District Licensing Agency are allowed.

DATED at WELLINGTON this day of April 2000

_____________________________
Judge J P Gatley
Chairman

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