Campbell v Cooney [2007] NZLLA 12 (11 January 2007)

Last Updated: 15 February 2010

Decision No. PH 12/2007 –
PH 13/2007

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension or cancellation of General Manager’s Certificate number 039/GM/26/2002 issued to PATRICK JAMES COONEY

BETWEEN MICHELLE LEE CAMPBELL

(Liquor Licensing Administrator of Palmerston North)

Applicant

AND PATRICK JAMES COONEY

Respondent

AND

IN THE MATTER of an application by PATRICK JAMES COONEY pursuant to s.123 of the Act for renewal of a General Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Ms P A Ballard

HEARING at PALMERSTON NORTH on 18 December 2006

APPEARANCES

Sergeant S M Oram – NZ Police – applicant and in opposition to application for renewal of certificate
No appearance by or on behalf of respondent
Miss S C Mitchell – Palmerston North District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] There are two applications before the Authority. The first is an application for the renewal of a General Manager’s Certificate by Patrick James Cooney. Mr Cooney was first granted his General Manager’s Certificate on 15 April 2002. The certificate fell due for renewal in April 2006.

[2] When he made his application Mr Cooney disclosed that he had been convicted of driving with excessive breath alcohol content in December 2005. Accordingly there was not only opposition to the renewal, but subsequently an application was made for the suspension or cancellation of his General Manager’s Certificate.

[3] Both matters were called on Monday 18 December 2006. When there was no appearance made by Mr Cooney attempts were made to make contact with him without success.

[4] The evidence shows that Mr Cooney was apprehended on 28 October 2005 and convicted on 2 December of that year in the Palmerston North District Court. He had a breath alcohol level of 781 micrograms of alcohol per litre of breath. Mr Cooney was fined $750 with costs and was disqualified for a period of six months. The matter was aggravated by a historical conviction for similar offending in 1987.

[5] The ground for the application for suspension or cancellation of the certificate is that Mr Cooney’s conduct has been such as to show a lack of suitability. The evidence shows that pending the hearing Mr Cooney was stopped by the Police on 18 November 2006. He underwent an evidential breath test which gave a positive result of 504 micrograms of alcohol per litre of breath. He acknowledged consuming about seven bottles of beer in his home address.

[6] Mr Cooney has been remanded to appear on 11 January 2007 to answer the charge. There has been no recorded conviction. Any such conviction in our view could well affect the period of time that the General Manager’s Certificate is suspended or even raise the issue of whether or not there should be an order for cancellation. Normally speaking if applicants fail to appear in support of any application then it is unlikely that that application will be granted. Mr Cooney’s employment was contacted just to confirm that he was still employed at the liquor wholesale business where he had been employed.

[7] In all the circumstances it seems to us that these matters should be dealt with at a date in the New Year following disposal of the third conviction against the drink driving provisions of the Transport Act. Mr Cooney needs to be aware that if he fails to appear then there is the distinct probability that the application for renewal will be declined, or alternatively, that an order for cancellation of his General Manager’s Certificate will be made. It is noted that Mr Cooney does have a current Licence Controller Qualification. It may also be to Mr Cooney’s advantage to obtain a reference from his employer if he is still interested in retaining his certificate.

[8] The application will be adjourned for a period of six months although it may be brought on prior to that time with appropriate notice.

DATED at WELLINGTON this 11th day of January 2007

Judge E W Unwin Ms P A Ballard
Chairman Member

Patrick Cooney.doc(aw)