Mole v Copa [2012] NZLLA 1414 (17 December 2012)

Last Updated: 11 January 2013

[2012] NZLLA PH 1414

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 069/ON/13/2012 issued to BIG FISH DUNEDIN LIMITED in respect of premises situated at 324B George Street, Dunedin, known as “Copa”

BETWEEN ANTONY STEWART MOLE

(Dunedin District Licensing Agency Inspector)

Applicant

AND BIG FISH DUNEDIN LIMITED

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Mr D E Major

HEARING at DUNEDIN on 12 December 2012

APPEARANCES

Mr A S Mole – Dunedin District Licensing Agency Inspector – applicant
Mrs S E Griffiths – for respondent

DECISION OF THE AUTHORITY

[1] The enforcement application which is the subject of this decision alleged pursuant to s.132(3)(c) of the Act that on various dates the licensed premises were used in a disorderly manner so as to be obnoxious to neighbouring residents or to the public. The application then detailed various alleged breaches of excessive noise directions.

[2] In respect of enforcement applications, the burden of proof is on the applicant.

[3] The standard of proof is a civil standard applied flexibly according to the seriousness of the allegations and consequences of them having been proved. Serious allegations must be proved by evidence having sufficient probative force which in enforcement proceedings (as here) will give proper protection to the person who is the subject of the process and who faces penalties and stigma if the allegations have not been proved. The standard of proof is not as high as the criminal standards (see Z v Dental Complaints Assessment Committee [2009] 1NZLR1 – paragraph 112 and 113 per McGrath J).

[4] Whilst s.109(1) of the Act gives the Authority power to receive evidence that would not otherwise be admissible in a Court of law, s.109(2) of the Act provides that subject to the provisions of the section the Evidence Act 2006 applies. In accordance with the principle expressed in Z, s.109(1) is of limited application in enforcement proceedings.

[5] Two witnesses gave evidence for the applicant. The evidence of Mr W A Boss, the senior environmental health officer for the Dunedin City Council detailed the receipt by the Council of various noise complaints and how they were dealt with. However, none of the alleged complainants gave evidence. Given the standard of proof that applies in enforcement proceedings, this was a fatal flaw in the applicant’s case.

[6] However, notwithstanding the evidential matter raised in the preceding paragraph, there was no evidence indicating that the premises on any of the dates referred to in the application were “used in a disorderly manner”. In enforcement applications, all the ingredients of the grounds of the application must be proved. This did not occur in this case.

[7] The application is declined.

DATED at WELLINGTON this 17th day of December 2012

B M Holmes
Secretary

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