Kilikiti [2003] NZLLA 268 (17 April 2003)

Last Updated: 21 July 2010

Decision No. PH 268/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by NEW ZEALAND KILIKITI ASSOCIATION INCORPORATED pursuant to s.55 of the Act for a club licence in respect of premises situated at 2016A Great North Road, Avondale, Auckland, known as “The Kilikiti Club”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr J C Crookston

HEARING at Auckland on 11 April 2003

APPEARANCES

Mrs P Pilitati – representing the applicant
Mr D W Sara – Auckland District Licensing Agency Inspector – to assist
Mr F G Snell – objector

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an application for a club licence by the New Zealand Kilikiti Association Incorporated (hereafter called the Association), for premises situated at 2016A Great North Road, Avondale which will be known as the “Kilikiti Club”. The premises used to be small shop (130 square metres) in a shopping block in Avondale. Kilikiti can be described as a Pacific Island sport which is loosely derived from cricket. It is played by two teams of up to twenty persons a side. It is played in at least seven other countries in the Pacific Basin. By its nature, it is a summer sport. It enjoys an enthusiastic following, particularly in Auckland.

[2] The application has a number of unusual features. It was originally made by a trust incorporated under the Charitable Trust Act, known as "Xpresstrac Support Trust". The Trust had obtained a resource consent to use the premises as an "entertainment facility". The appropriate type of licence for the nature of the business proposed to be operated, would have been a tavern. However, the premises in question are within the boundaries of the Portage Licensing Trust, and therefore a tavern licence could not be granted (s.216(a) of the Act).

[3] The Trust made application for a club licence, but such a licence can only be granted to a club, not a trust (s.54 of the Act). Accordingly, the Kilikiti Association was incorporated. This application for a club licence came about because of the Association’s need to finance its activities. Since it was formed five years ago, it has never received any funding from any government or quasi government sources.

[4] The Association came into contact with a person who was in the business of promoting gaming machines. He set about to find the association a venue. He suggested that with a venue, they could obtain a licence and have clubrooms operating, complete with gaming machines, within four to six months. It was the machines which were the "carrot" which led the Association to become involved with the premises in Avondale. As a consequence, the Association has now been paying rent for the premises for over a year. The premises have been fully renovated, and ready for occupation for over six months. The fact that they have never been used without a licence, or without the gaming machines, speaks volumes for the nature of the proposed activity.

[5] No one who heard the application could fail to be impressed by the sincerity of the Association, and the amazing advances it has made to encourage the sport with very little funding, and the frustrating time it has had at the hands of its various professional advisors. The final frustration emerged at the hearing when it appears that Mrs Pilitati, the Association’s secretary, was made aware that the resource consent allowed a maximum of eighteen persons (including staff) on the premises. As Mr Sara said in his submissions:

“It would be unnatural not to feel sympathy for the applicant which has tried desperately for the past five years to obtain funding for their sport. They have made no secret of the fact that gaming machines are seen as a way of providing funding.”

The Application

[6] The amended application was filed in October 2002. The Association was incorporated under the Incorporated Societies Act in July 2001. The membership was said to be 760 of whom about 20% were under the age of 18 years. At the hearing, this figure was revised to 553 members, of whom 478 were based in Auckland. Approximately half of the Auckland based members reside in West Auckland. The Secretary and Chief Executive of the Association is Mrs Pula’au Pilitati.

[7] The hours sought were Monday to Sunday 9.00 am to 1.00 am the following day. Although these hours were consistent with the resource management certificate, they were hardly consistent with the running of an association devoted to the promotion of the sport of Kilikiti.

[8] Indeed the advertising of the application drew four objections from the public. Of these, only one addressed the criteria set out in s.59 of the Act. This was from Mr F G Snell, who runs his optometrist business some 300 metres down the road at 1958 Great North Road. He suggested that the requested hours were "ridiculous", and were more in keeping with a commercial bar operation, rather than an adjunct to sport. In the event, he was the only objector to appear at the hearing.

[9] By the time of the hearing, the hours had been reduced as follows:

Monday to Thursday 6.00 pm to 10.00 pm

Friday 5.00 pm to 12.00 midnight

Saturdays & public holidays 12.00 midday to 12.00 midnight

Sundays 12.00 midday to 12.00 midnight

[10] These hours are consistent with hours which are operated by other sporting codes, although no allowance has been made for any seasonal activity. As a general rule of thumb summer sports enjoy the hours from 1 October to 31 March, and winter sports from 1 April to 30 September. Another useful indicator can be the daylight saving periods. There are exceptions to the rule, and some clubs trade all year, when they have satisfied the Authority or an Agency, that year round activities take place. We heard no such evidence in this case.

[11] The Association had hoped that by reducing the hours so significantly, the application could be granted on the papers. The amended hours with a later opening time should not have inconvenienced any patrons of other shops and businesses. However, Mr Snell continued with his objection. He produced a letter from the "Avondale Business Association" which had discussed the application at a meeting, and decided that a grant of a licence would not be conducive to the area. Mr Snell and the Business Association were concerned about increased consumption of alcohol in central Avondale. The Business Association was in the process of asking the Council to impose a liquor ban.

[12] Mr Snell’s business is located 300 metres away from the proposed premises. It is doubtful that he would obtain some advantage if his objection succeeded. Nor, given the hours of operation, could he establish that he was likely to suffer some disadvantage, other than a sense of grievance if his objection failed. It could have been argued that Mr Snell did not have status under s.56(1) of the Act which reads:

Any person who has a greater interest in the application than the public generally may object to the grant of a club licence.

[13] In Cayman Holdings Limited LLA PH 145/2001 the Authority stated:

“The Authority’s approach has been to satisfy itself that the applicant is suitable and will uphold the law. The Police or District Licensing Agency Inspector is empowered to apply to vary, suspend or cancel a licence pursuant to s.132 of the Act if problems arise. Apprehension of problems alone is not sufficient to prevent a suitable applicant, particularly one supported by a District Licensing Inspector and the Police from exercising rights granted by the District Council.”

[14] In the majority of on-licence applications, the essential issues to be determined by the Authority will relate to the suitability of the applicant, and the days and hours of operation. The tailoring of conditions in each licence to meet each particular factual situation is the responsibility of the Liquor Licensing Authority, or if unopposed, the District Licensing Agency.

[15] For these reasons we have discounted the objection by Mr Snell. As we will attempt to explain, the application is essentially flawed at any event.

[16] The application for a club licence enclosed a certificate under s.55(1)(e) of the Act. This is a prerequisite for any licence application. The certificate must state that the proposed use of the premises meets the requirements of the Resource Management Act 1991 and the building code. The certificate was issued under s.9(1)(e) of the Act, but the effect was the same. It confirmed that a licensed entertainment facility was permitted because of a resource consent granted on 26 September 2002. That consent had no less than 10 conditions relating to such matters as noise, parking, signage, hours of operation, and intensity.

[17] It is the latter matter that effectively undermined the application. Condition (9) reads:

"The consent holder shall ensure that no more than 18 persons (inclusive of staff) are accommodated within ‘Unit A’ on the site at any one time."

[18] The reports which accompanied the resource consent, noted that the premises were relatively small at 130 square metres. The expected maximum number of people was expected to be 24, although the facility had been designed to accommodate a maximum of 36 people. How the actual consent had ended up with a maximum of 18 (including staff), we do not know, although it may have had something to do with the 18 machines and the two pool tables which the Association intended to install. Mr D W Sara, the Auckland District Licensing Agency Inspector suggested that it was caused by the lack of car parking spaces.

[19] When Mrs Pilitati gave evidence, she set out the history of the Association since it was set up in February 1998. The Association has run regular national tournaments every year since 1999. In 2001, it facilitated and hosted the first Kilikiti World Cup in which seven nations participated. The second World Cup was hosted earlier this year. The Association hopes to have dedicated home ground status in West Auckland later in the year. Mrs Pilitati acknowledged that such grounds would be about 10 kilometres away from the proposed club premises in Avondale.

[20] The Association has spent four years liasing with SPARC (formerly the Hilary Commission) trying to get national body recognition. It has unsuccessfully sought funding from the New Zealand Sports Foundation, SPARC and other government agencies. Of the 30 applications for funding made by the Association, 26 have been declined. The Association has the enthusiastic support of the Mayor of Waitakere City Council. The Council recently hosted and sponsored the 2003 World Cup.

[21] As the Secretary and Chief Executive of the Association, Mrs Pilitati has her offices in Henderson. This is where Association meetings are currently held, including the last annual meeting of the Association. In a letter dated 18 March 2002, she had suggested that the reasons for the clubrooms were twofold. One was to have a place where the players and umpires could meet, hold meetings, socialise and have a meal together. The second reason was to have gaming machines, so that the sport could receive a much needed cash injection. At the hearing, it was not stated how often the meetings would take place.

Decision

[22] Section 59(1) and (2) sets out the criteria to which the Authority must have regard in considering any application for a club licence. These criteria are:

(a) The suitability of the applicant:

(b) The days on which and the hours during which the applicant proposes to sell liquor:

(c) The days on which and the hours during which the premises are used for the club’s activities:

(d) The areas of the premises, if any, that the applicant proposes should be designated as restricted areas or supervised areas:

(e) The proportion of the membership of the club who are prohibited persons:

(f) The steps proposed to be taken by the applicant to ensure that the requirements of this Act in relation to the sale of liquor to prohibited persons are observed:

(g) The applicant’s proposals relating to –

(i) The sale and supply of non-alcoholic refreshments and

food; and

(ii) The sale and supply of low-alcohol beverages; and

(iii) The provision of assistance with or information about

alternative forms of transport from the licensed premises:

(h) Any matters dealt with in any report made under section 57 of this Act.

Before granting an application for a club licence, the Licensing Authority shall require to be satisfied that the predominant purpose for which the premises are or will be used is other than the consumption of liquor.

[23] There are no concerns about the suitability of the Association. At the hearing, the Authority received no detailed evidence about the use of the premises for the club’s activities. The application form stated that the Association met monthly. No request was made for any designation. Approximately 20% of the Association’s membership are under 18, however with the limitation on the numbers, it seems to us that they may not be welcome at the premises.

[24] It will be noted that the Authority must be satisfied that the consumption of liquor would not be the predominant purpose for which the premises will be used. The evidence satisfied us that this was unlikely to be the case, particularly if the machines were installed. In our view the machines are the predominant purpose for which the premises will be used. In our experience, if there are 18 machines and a limitation of 18 patrons, then very little money will be spent on liquor. On the other hand, without the machines, it could well be that the consumption of liquor would receive greater emphasis, given the regular hours requested.

[25] There is one other significant factor that must be considered by the Authority when assessing the days on which, and the hours during which, liquor may be sold. Section 60(4)(a) of the Act requires us to have regard to “the days on which the premises are being used in good faith for any of the purposes of the club, or the maintaining, upgrading, managing, and administering of the club’s premises and facilities.” It will be noted that the premises must be used in good faith for the purposes of the club. The question has to be asked, how can there be all year use of the clubrooms when the grounds are so far away? Clearly it would be impossible to socialise after a game. The premises could not even cater for one of the teams. Apart from the machines, one of the main reasons for setting up the premises was said to be, to enable the members to socialise with each other.

[26] Herein lies the dilemma for the Association and the Authority. How can premises which have a maximum capacity of 18, possibly cater for an Association with nearly 500 Auckland based members? It is noted that the quorum for general meetings of the Association is 10% of the membership. Accordingly, the premises could not be used for these purposes. The evidence is that the committee continues to meet at the Association’s rooms in Henderson, despite paying rent for a building in Avondale.

[27] If the money is supposed to come from the machines, how can a limited number of members continue to play them on a daily basis? It seems to us that the Association is hoping to be funded by a minority of its members. We are also very concerned as to how the resource consent will be monitored. If the predominant purpose of the premises is the playing of machines, there will inevitably be a temptation either to allow members of the public to be present, or more people than permitted by the resource consent.

[28] Applying the evidence to the law, we can see little justification for the requested days and hours of opening. If we were to restrict the days and hours of opening to the summer, and allow occasional days during the winter, then an already risky club licence could not possibly succeed.

[29] It is up to the Association to satisfy the Authority as to the criteria, and the other matters referred to above. The Association has regrettably failed to do so. In its present form, and based on the evidence, the application is effectively, to run a small tavern, which will be strongly supported by the Association. For the majority of the time, it seems to us that the premises will not be used for the club’s activities. The Authority would have no issue with such an application, if made for a site which was not established in a licensing trust area. Other sporting codes have entered into commercial licensing arrangements to ensure regular funding (see Sporting Investments Limited LLA PH 486/2002). To grant the present application would create a precedent, which would have far reaching consequences. In summary, we have not been satisfied that the application is for the purposes provided for in Part III of the Act.

[30] For the reasons we have tried to articulate, the application must be refused.

DATED at WELLINGTON this 17th day of April 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

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