Thurston v Russell [2009] NZLLA 864 (11 August 2009)

Last Updated: 24 January 2012

Decision No. PH 864/2009

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 the cancellation of General Manager’s Certificate number 049/GM/344/2002 issued to KIRK ANDREW RUSSELL

BETWEEN JASON RONALD THURSTON
(Police Officer of Wellington)

Applicant

AND KIRK ANDREW RUSSELL

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Dr J Horn

HEARING at WELLINGTON on 4 August 2009

APPEARANCES

Sergeant J R Thurston – NZ Police – applicant
Mr G Reeves – for respondent
Mr R S Putze – Wellington District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] This is an application by the Police for the cancellation of a General Manager’s Certificate issued to Kirk Andrew Russell.

[2] Mr Russell has held his manager’s certificate since 2002. The evidence indicated that he has not used his certificate to control licensed premises for approximately two years.

[3] Mr Russell came before us in January 2007. At that time his certificate was the subject of a renewal application. There was opposition to the renewal based on an incident that had occurred in Auckland. Liquor consumption was involved. Mr Russell was convicted on a charge of disorderly behaviour and was subjected to a nominal fine. In the event we truncated the period of renewal.

[4] On this occasion the Police seek cancellation for three particular reasons. The application is based on the ground that Mr Russell’s conduct has been such as to show a lack of suitability. The first issue relates to a matter that occurred on 21 September 2008. This was a Sunday afternoon. Mr Russell was driving in Vivian Street, where there are a lot of pedestrians and a number of people on the footpath. Mr Russell drove his vehicle onto the footpath on the right hand side in order to pass traffic that was driving at a slower pace. He drove towards two pedestrians who apparently had to leap to safety. He then left the footpath and rejoined the traffic about 30 metres further on. The members of the public were concerned enough to follow him and alert the Police.

[5] Mr Russell was apprehended and acknowledged that he was in a hurry. He was charged with reckless driving and was subsequently taken before the District Court in May 2009 (some eight months later), when he was ordered to carry out community work and disqualified from driving for six months. Mr Russell was in fact a bus driver at the time and consequently lost his employment.

[6] The second incident could be described as less serious, although it still resulted in a relatively major charge under the Transport Act. At 11.00 pm on a Sunday, Mr Russell was observed driving a motor vehicle with a female riding on the bonnet. The concern was that the female had no means of holding on, and the combination of speed and turning, meant that the person could easily have been injured. Mr Russell said at the time when he was stopped that the person had jumped on the bonnet some distance down the road and he was not certain why.

[7] We have had the benefit of a letter from this person who said that she did jump on the bonnet without Mr Russell’s knowledge. She thought that he continued to drive at a slow speed until she could get off. She accepted full responsibility for what had happened. Mr Russell was charged with driving in a dangerous manner and was eventually convicted and ordered to do a further 50 hours’ community service and was disqualified from holding a driver’s licence for another six months.

[8] The final matter is that Mr Russell has acknowledged that he is what is known as a “Dumpster Diver”. We understand that this a group of people who check skip bins in areas such as restaurants, supermarkets and other food retail outlets looking for items that are close to or just past their expiry dates. Apparently it is brought about by peoples’ concern about the amount of waste of food products and the fact that there is a problem with poverty in the city.

[9] There is nothing that we can see that is necessarily illegal about the activity. However, we take the view that if Mr Russell was using his certificate on a regular basis, then that would be the sort of activity which would bring his suitability into question. He might at some stage have to make a decision about whether he has a future in the hospitality industry or in charitable work.

[10] Mr Reeves appeared for Mr Russell and argued that cancellation in these circumstances would be draconian or unreasonable taking into account the object of the Act. We are inclined to accept his argument. Mr Russell has not shown much maturity in the way he has driven. On the other hand there were no liquor abuse issues involved. He is not currently working in the industry, but that was not a ground for suspension or cancellation of the certificate. On the other hand that is an issue that is relevant on renewal.

[11] After hearing from Mr Russell and balancing as best we can the fact that he has had little involvement with the industry, and the fact that these were two incidents showing considerable immaturity, we have come to the view that his manager’s certificate will be suspended for 12 weeks.

[12] Accordingly, and for the reasons that we have stated, General Manager’s Certificate number 049/GM/344/2002, issued to Kirk Andrew Russell, will be suspended for 12 weeks commencing on Tuesday 4 August 2009.

DATED at WELLINGTON this 11th day of August 2009

B M Holmes
Deputy Secretary

Kirk Russell.doc(jeh)