Fitzsimons v Holtham [2010] NZLLA 824 (28 July 2010)

Last Updated: 30 July 2010

[2010] NZLLA PH 824

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by pursuant to s.135 of the Act for cancellation of General Manager's Certificate number 051/GM/59/07 issued to SHARN ROSS HOLTHAM

BETWEEN MICHAEL PATRICK FITZSIMONS

(Police Officer of Nelson)

Applicant

AND SHARN ROSS HOLTHAM

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Dr J Horn

HEARING at NELSON on 23 July 2010

APPEARANCES

Sergeant M P Fitzsimons - NZ Police - applicant
Mr S R Holtham - respondent
Ms T A Waddington - Tasman District Licensing Agency Inspector - to assist

DECISION OF THE AUTHORITY

[1] This decision relates to an application for the cancellation of the General Manager's Certificate issued to the respondent. The application alleges that the conduct of the respondent is such as to show that he is not a suitable person to hold the certificate - s.135(3)(b) of the Act.

[2] In particular it alleges that on 18 December 2007 the respondent received diversion as a result of his facing a charge of possession of cannabis. As a result his manager’s certificate was suspended for three weeks.

[3] On 12 May 2009 the respondent was convicted of possession of cannabis and possession of utensils under the Misuse of Drugs Act 1975.

[4] At the hearing the respondent admitted that he had had his certificate suspended for three weeks as a result of his being charged with possession of cannabis. He indicated that on that occasion the cannabis belonged to his father rather than himself. He also admitted the conviction of 12 May 2009 and did not offer any excuse in respect of that offence.

[5] At the hearing the respondent indicated that while he was presently applying for a job which involved his having a General Manager's Certificate, he was not presently working in the industry.

[6] The Authority agrees that the drug abuse history, the May 2009 conviction and the fact that the respondent is not working in the industry together indicates that he is presently not a suitable person to hold a General Manager's Certificate and in the circumstances it is desirable to cancel the certificate - s.135(6)(b) of the Act.

[7] The Authority notes that the offences giving rise to the convictions on 12 May 2009 occurred on 25 February 2009. Given the Authority’s decision in G L Osborne NZLLA 2388/95 the Authority considers that it is unlikely that a new application for a General Manager's Certificate would be granted until at least two years have elapsed since the date of the offence and provided that no further problems have arisen. Of course, as previously indicated, the Authority will not grant a General Manager's Certificate to a person who is not working in the industry.

[8] One further matter requires comment. At the hearing the Police endeavoured to adduce evidence in support of the application for cancellation about matters not alleged in the application. Sergeant Fitzsimons indicated that he had spoken to the respondent who was aware of the allegations. In the Authority’s opinion such an oral discussion would normally be insufficient if matters not contained in the application are to be raised at the hearing. Written notice is required.

[9] Section 27 of the Bill of Rights Act 1990 states:

Right to justice -

(1) Every person has the right to be observance of the principles of natural justice by any Tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.

A fundamental principle of natural justice is the right to know the opposing case. As is stated in Administration Law 10th edition by H W R Wade and C F Forsythe at page 426:

“A proper hearing must always include a “fair opportunity to those who are parties in the controversy for correcting or contradicting anything prejudicial to their view”.

Commenting on the principle, Lord Denning stated:

“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them”. (Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322).

At page 428 of Administrative Law the authors note:

“Disclosure of the charge or of the opposing case must be made in reasonable time to allow the person affected to prepare his defence or his comments”. (R V Thames Magistrates Court EXP. Polemis [1974] 1 WLR 1371; Brentnall v Free Presbyterian Church of Scotland 1986 RSLT 471.”

Further comments supporting this principle are to be found in Mahon v Air New Zealand Ltd [1984] AC808.

[10] For the reasons set out in this decision the respondent’s General Manager's Certificate is cancelled.

DATED at WELLINGTON this 28TH day of July 2010

B M Holmes
Secretary

Sharn Holtham.doc(aw)