Thompson v Gorrie [2004] NZLLA 90 (19 February 2004)

Last Updated: 20 February 2010

Decision No. PH 090/2004 -
PH 091/2004

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.132 of the Act for suspension or cancellation of on-licence number 062/ON/1/96 issued to DONALD JAMES GORRIE in respect of premises situated at Pudding Hill, State Highway 72, Methven, known as “Kohuia Lodge”

BETWEEN PETER THOMPSON

(Ashburton District Licensing Agency Inspector)

Applicant

AND DONALD JAMES GORRIE

Respondent

AND

IN THE MATTER of an application by DONALD JAMES GORRIE pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at Pudding Hill, State Highway 72, Methven, known as “Kohuia Lodge”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at CHRISTCHURCH on 11 February 2004

APPEARANCES

Mr P J Egden – for applicant and Medical Officer of Health, and in opposition to application for renewal of on-licence
Mr P B McMenamin – for respondent and applicant for renewal of on-licence

ORAL DECISION OF THE AUTHORITY

[1] In August 2001, the Authority heard an opposed application by Donald James Gorrie for the renewal of his on-licence in respect of the premises situated at Pudding Hill, State Highway 72, in Methven near Ashburton.
[2] The premises are known as “Kohuia Lodge” and comprise a ski lodge, accommodation, restaurant and bar. As was stated in the reserved decision of the Authority, the business is a seasonal type of operation. It has been in existence for at least 10 years. Over that period of time there have been problems with the provision of potable water to the guests.
[3] When the matter came before us in August 2001, the District Licensing Agency and the Medical Officer of Health both opposed the application. The basis of their opposition was in relation to the supply of clean water. We recorded in our decision that Mr Gorrie had given a form of undertaking to the hearing in which he said:

“I am, however, willing at all times to discuss and to undertake any actions which will promote the best quality water I can supply. As evidence of this I attach a copy of a fax I sent to Dr Daniel’s predecessor in 1997. I also attach copies of the clear laboratory tests I have recently received.”

[4] In its decision, the Authority stated that Mr Gorrie must either secure the source of the supply of water, or provide adequate treatment by way of a filtration system on his own land. Given the difficulties experienced with the neighbour, it seemed to us that the latter proposal might have been Mr Gorrie’s best option.
[5] The Authority also commented that it was not necessarily Mr Gorrie’s fault that the water system which he had inherited, had its origins on somebody else’s land. Nevertheless the Authority accepted that in the absence of the neighbour’s co-operation, Mr Gorrie had a duty to fix the problem himself. We indicated that Mr Gorrie should be encouraged and assisted in this task. It was also clearly stated that if Mr Gorrie rejected such encouragement and assistance, then it may be that he would forfeit the right to sell and supply liquor. Subject to those comments, the on-licence was renewed for three years to 27 May 2003.
[6] Now it is abundantly clear that little action has taken place since the time that the decision was released. As a consequence two applications are now before the Authority. The first is an application by the Ashburton District Licensing Agency Inspector to suspend or cancel the on-licence. The grounds for cancellation or suspension are:

• [a] That the licensed premises were being conducted in breach of the condition of the licence.
• [b] That the conduct of the licensee is such to show a lack of suitability.

[7] In the application for suspension or cancellation, reference is made to the undertaken given by Mr Gorrie, with the allegation that it had not been performed. There was also reference to the Food Hygiene Regulations 1974. The second matter before the Authority is an application by Mr Gorrie to renew his on-licence. The matters were duly set down for a public hearing. Mr P J Egden received instructions to act for the Medical Officer of Health and the Ashburton District Licensing Agency Inspector. Mr P B McMenamin received instructions to act for Mr Gorrie.
[8] The Authority is grateful that senior counsel have been instructed. As a consequence, the issue has been able to be resolved notwithstanding difficulties in communication between the respective parties. By way of background, we have been advised that Mr Gorrie’s registration under the Food Hygiene Regulations has now lapsed. His business has effectively stopped trading. This state of affairs will continue until he is able to achieve registration by carrying out the necessary work to ensure the supply of potable water to his guests.
[9] As part of the resolution of the issues between the parties, Mr Gorrie has accepted that a suspension order may be issued against his licence. The period of suspension will be six months. However, if Mr Gorrie is able to obtain resource consent, and attend to the work, (in particular a filtration system) and if he can obtain registration under the Food Hygiene Regulations earlier than six months, then an application can be made to truncate the period of suspension. If possible such application would be by consent so that it can be dealt with on the papers
[10] The remaining applications for cancellation of the licence, and renewal of the on-licence will be adjourned, in effect sine die. Those applications can be brought on at the request of either counsel on giving, say, fourteen days notice to the Authority. The Authority will do its very best to arrange an urgent public hearing.
[11] The reasoning behind the adjournment is to try and ensure that the work that is now to be undertaken by Mr Gorrie will be done. If the work is not completed, and the six-month period is due to expire, it may be that further action will need to be taken. We thank all the parties for being able to reach a compromise.
[12] The Authority makes the following orders:

1. On-licence number 062/ON/1/96 issued to Donald James Gorrie is suspended as from today, 11 February 2004, for the maximum period of six months. That period of time may be reduced by consent, or as a consequence of any further public hearing.
2. The remaining applications for the cancellation of the licence, and for its renewal will be adjourned sine die, and may be brought on for a further public hearing at the request of either counsel by giving fourteen days notice.
   

DATED at WELLINGTON this 19th day of February 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

KohuiaLodge.doc(aw)