Horne and Surrey v Mathieson [2003] NZLLA 831 (31 October 2003)

Last Updated: 23 January 2012

Decision No. PH 831/2003 –
PH 833/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of applications pursuant to s.135 of the Act for suspension of General Manager’s Certificate number GM 1181/2000 issued to LEIGH MATHIESON

BETWEEN ANDREW JOHN HORNE
(Police Officer of Queenstown)

AND TANYA JAYNE SURREY
(Queenstown-Lakes District Licensing Agency Inspector)

Applicants

AND LEIGH MATHIESON

Respondent

AND an application by THE GIBBSTON VALLEY CHEESE COMPANY LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at Gibbston Valley Winery, State Highway 6, Gibbston Valley, Queenstown-Lakes District known as “Gibbston Valley Cheese”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at QUEENSTOWN on 15 October 2003

APPEARANCES

Ms T J Surrey – Queenstown-Lakes District Licensing Agency Inspector
– applicant and in opposition to application for renewal of on-licence
Mr S Stamers-Smith – for respondent and applicant for renewal of on-licence
Sergeant P Stratford – NZ Police – applicant and in opposition to application for renewal of on-licence

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority are three applications. The first two relate to applications brought by the Police and the District Licensing Agency Inspector for suspension of a General Manager’s Certificate issued to Leigh Mathieson. The applications were brought on the basis that the conduct of the manager was such as to show that he was not a suitable person to hold the certificate.

[2] Both applications, which were filed in May 2002, were brought on the basis that Mr Mathieson had been convicted for driving with excess breath alcohol.

[3] The third application relates to an application by the Gibbston Valley Cheese Company Limited for the renewal of its on-licence which expired on 20 December 2002.

[4] It is acknowledged that there has been a delay in the hearing of the applications, in particular the applications for suspension. The matters were set down for an earlier hearing but could not proceed as Mr Mathieson was overseas. It is also accepted that the number of times that the Authority will sit in an area such as Queenstown is limited.

[5] The evidence is that Mr Mathieson has held a General Manager’s Certificate for some years. Up until now, the certificate has been used in an exemplary way. The evidence is that on 4 May 2002, Mr Mathieson was apprehended for driving with excess breath alcohol content. He was convicted in the District Court at Queenstown two days later. The level was shown to be 768 micrograms of alcohol per litre of breath. This is nearly twice the allowable limit. As a consequence Mr Mathieson was convicted, fined and disqualified.

[6] As has been stated, the applications for suspension of the General Manager’s Certificate were filed shortly afterwards. No issue was taken with the facts, and no further evidence was called other than evidence of the conviction. Mr Mathieson was present, and elected not to give evidence, although Mr Stamers-Smith said that he was available for questioning.

[7] Mr Stamers-Smith emphasised that this was an isolated offence. He submitted that to suspend the manager’s certificate would be unreasonable, and would create considerable inconvenience to the company. He also raised the issue of double jeopardy but clearly that is a matter which is permitted by the Act.

[8] The Authority’s position was set out in the case of Alastair Robert Lyon PH 57/2003. Because of the way this case has been argued, it is appropriate to set out the Authority’s reasoning. In the decision it was stated:

One of the ways of establishing a reasonable system of control over the sale of liquor to the public with the aim of contributing to the reduction of liquor abuse is to ensure that all managers have high standards on both sides of the bar. They are the people who are on duty at all times when liquor is being sold. They are ultimately responsible for compliance with the Act and the conditions of the licence.

When Parliament passed the Sale of Liquor Amendment Act 1999 it amended s.115(1) to emphasise the fact that a manager must be on duty at all times when liquor is being sold or supplied to the public. All managers would be responsible for ensuring that the premises comply not only with the Act but also with the conditions of the governing licence. The reasoning behind the amendment was to raise the standards of those charged with the responsibility of supplying liquor to the public. The expectation was that management of licensed premises would be conducted only by persons of integrity committed to supervising the sale and supply of liquor and to give a new meaning to the term host responsibility. The ultimate aim was to achieve the Act’s objective of reducing the incidence of liquor abuse.

At issue in this and other cases is the example set by managers of licensed premises. For example how can it be possible to impose on others the virtue of self restraint when the lack of it is not regarded as seriously by others.

New Zealand’s drinking culture has become defined by many factors and social changes. Its manifestation is often seen in binge drinking or drinking harmfully. If the object of the Sale of Liquor Act is to be taken seriously then eventually standards of good drinking behaviour will have to be set. Because people are inclined to be tolerant of alcohol abuse then the focus must inevitably fall on the law. If the law becomes tolerant towards such behaviour then the object of the Act will lose credibility. If managers of licensed premises are shown to lack discipline then why should patrons take the issue seriously. The behaviour currently exhibited by younger drinkers is but a symptom of the malaise.

Nevertheless it is our view that if manager’s are guilty of breaches of the drink driving provisions of the Land Transport Act, they must expect their certificates to be suspended for a period. The length of the period should represent a balance between the seriousness of the offending and the maximum term of six months. In the majority of cases such a result could be seen by the Authority as a desirable step towards the promotion of the Act.

[9] Mr Stamers-Smith has submitted that this case can be seen in a different light because of the delay of some 17 months since the event. On the other hand the applications were brought shortly afterwards, and the matter is still very much at large. We see no particular reason to make an exception of Mr Mathieson, notwithstanding the fact that we accept that he has an unblemished record, and that he helps to run a company which has no problems with management or liquor abuse issues.

[10] As far as the renewal of the licence is concerned, there are no objections to the renewal at all other than the fact of the conviction. At the time when the application was opposed, Mr Mathieson owned approximately 40% of the shareholding of the company. He was one of four directors. We understand that his percentage of shareholding has now been reduced to below 15%. He is still one of four directors, and although he has a managerial role, we are satisfied that he is not the guiding hand or ‘alter ego’ of the company. We do not believe that it would be reasonable to reflect his personal offending against the company for whom he works. Had he been the ‘alter ego’ or guiding hand it may be that there would have been some merit in the submission made by the Inspector that a reduced term of renewal would be appropriate.

[11] As was stated by the Court of Appeal in the recent decision known as the Karara decision dated 13 June 2003:

The object of the Act is to establish a reasonable system of control reflects that legislative perception. It also implicitly recognises that if the administration of the Act’s licensing system become too heavy handed so that it unreasonably inconveniences those wishing to purchase and consume liquor in a manner not giving rise to abuse that result would be inconsistent with the statutory object.

[12] It is our view that to reduce the period of renewal would be heavy handed in the light of the circumstances. Accordingly the decision of the Authority is to renew to on-licence for the period of three years.

[13] As far as Mr Mathieson is concerned, we have not heard as to whether there may be any issue with liquor abuse. Notwithstanding the high level, we accept that it is an isolated offence. We believe that a period of suspension is not only appropriate, but consistent with other decisions of the Authority.

[14] For the reasons that we have given General Manager’s Certificate number GM 1181/2000 issued to Leigh Mathieson will be suspended for one month as from Wednesday 5 November 2003.

DATED at WELLINGTON this 31st day of October 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Mathieson.doc(afw)