Attachment 1

Code of Practice - District Licensing Committee 2017

 

 

Code of Practice – District Licensing Committee

2017

 

1.    Scope

1.1     This is a code of practice for the District Licensing Committee of Hutt City Council (the DLC).  This code is not a set of inflexible rules, but is a guide to the practice of the DLC and will be followed unless there is good reason to do otherwise.[1]  Legislative references are to the Sale and Supply of Alcohol Act 2012.

a)      The DLC should have reference to the following sources (in addition to this code of practice):
Sale and of Alcohol Act 2012.

b)      Commissions of Inquiry Act 1908.

c)      Local Government Official Information and Meetings Act 1987, other than Part 7.

d)      Any practice directions from the Alcohol Regulatory and Licensing Authority.

1.2     However, the DLC is primarily bound by the Sale and Supply of Alcohol Act 2012 and the provisions of that Act should prevail where there is any qualifier in the Act or conflict with other instruments. 

2.    Powers and Functions

2.1     While a committee of Council,[2] the DLC operates as a Commission of Inquiry will be performing a quasi-judicial function.[3] 

2.2     The functions of the DLC are to consider and determine applications for licenses and manager’s certificates, renewals of those, variations of licenses and special licenses, amongst other things.[4]

2.3     The DLC and has all the powers conferred under the Act and necessary to perform its functions.[5]  These include broad powers to:

a)      Issue witness summons.

b)      Require the production of documents.

c)      Require any other act preliminary or incidental to the hearing.

d)      Maintain order at its inquiry.

e)      Allow evidence in chief and cross examination.

f)       Accept any evidence, whether or not that evidence would be admissible in a court (but subject to the provisions of the Evidence Act 2006).[6]

g)      The power to rehear any matter it has decided.[7]

2.4     Subject to the provisions of the Act, the Committee may regulate its procedure as it thinks fit.[8]

3.    Pre-Hearing Matters

3.1     Witness summonses

3.1.1    The DLC should ensure that all parties to the process are aware of the need to advise the DLC of any witnesses that need to be summonsed, in advance.  The Act requires that parties are given at least 10 working days’ notice of a hearing,[9] but this should be extended by a reasonable period where witnesses need to be summonsed.  

3.1.2    To avoid unreasonableness through the belated summonsing of witnesses, and to allow reasonable opportunity for statements of evidence to be prepared (if required), the DLC expects witness summonses to be served no later than 10 working days before the date of hearing. Except when a witness is agreeable to attend the hearing in circumstances where the issue of a summons is effectively a matter of form, the DLC will not normally issue a witness summons less than 10 working days before the hearing.

3.2     Evidence

3.2.1    The DLC will ordinarily require statements of evidence to be prepared, and an exchange of evidence, prior to the date of the hearing.

3.2.2    If the DLC does not consider it necessary to require statements of evidence, it will direct the parties accordingly.

3.2.3    The DLC may or may not require copies of a lay witness's statement of evidence (including photographs and other visual presentations other than models) to be provided to all other parties, prior to the hearing of the proceedings.

3.2.4    The DLC will ordinarily give directions about the time when statements of evidence are to be delivered to the other parties. Parties should be advised that, in every case where no special direction has been given as to the timing of any required exchange, statements of evidence are to be delivered not less than 12 working days before the hearing date. If copies of a statement of evidence are not delivered in time, leave will need to be sought to call the witness, and the failure to comply will need to be explained. Leave to call the witness may be refused, or the party in default may be ordered to pay the costs of adjournment incurred by other parties and by the DLC.

3.3     Exhibits

3.3.1    All exhibits, including photographs and other visual presentations, should be required to be presented in a practical and manageable form.

3.4     Citation of Court decisions

3.4.1    Where the citation of authorities is necessary, parties should be advised that a considered and discerning approach needs to be adopted, with particular emphasis on:

a)      Citation of the most recent or authoritative statement on a point rather that a plethora of cases (remembering however that some points are not amenable to simple or straightforward answers).

b)      Identification of relevant passages by paragraph and/or page number.

c)      Identification of official report citations where such exist.

d)      Succinctness and avoidance of needless repetition.

4.    Procedure at Hearings

4.1     Hearings will be held in public and open to any member of the public, in accordance with the provisions of section 203 of the Act, unless the DLC exercises its discretion in section 203(3) of the Act to hold part of the hearing in private.[10]

4.2     The DLC will introduce its members and may briefly address the following matters:

3.4.2    An introduction of the applicant and other parties present.

3.4.3    Advise that the DLC members may ask questions at any time.

3.4.4    Remind the parties of the matters to be dealt with at the hearing, by reference to the Act.

3.4.5    Remind the expert witnesses that they are acting as experts, assisting the DLC,

3.4.6    Outline any procedural requirements it may have for the hearing.

4.3     Order of parties

4.3.1    The DLC will normally call first upon the applicant to state his or her case, and then to call the evidence in support of it - followed, in turn, by the cases of those who support the grant. 

4.3.2    Then the DLC will call upon those parties who oppose the grant to present their cases.

4.3.3    Then the DLC will call upon any Reporting Authorities to present their submissions and evidence.

4.3.4    Then the DLC will call upon Licensing Inspector to present their submissions and evidence. 

4.3.5    The applicant will then be allowed a right of reply, to address any matters which have been raised.  No cross examination will be allowed following the right of reply.

4.4     Cross examination of witnesses will be allowed in all cases, except following the applicant’s right of reply.

4.5     Witnesses will not generally be subject to a time restriction, unless evidence is being unnecessarily repeated.

4.6     The DLC has power to regulate its procedure in such manner as it sees fit. It may therefore modify its procedure in particular cases if the interests of justice, and the orderly and logical presentation of evidence, so require.

5.    After the Hearing

5.1     Communication with the DLC

5.1.1    Any communication on any matter relating to the merits of the case or its outcome, outside of the hearing, must be by way of a memorandum lodged with the Secretary of the DLC and served on other parties, so that other parties may have the opportunity to respond. It is generally inappropriate to seek to communicate with the DLC after a hearing has concluded and prior to the issue of the DLC’s decision.

5.2     The Decision of the DLC

5.2.1 The DLC will give a decision in accordance with the requirements of s211 of the Act.[11]

5.2.2 The DLC will issue its decision as soon as reasonably practicable, but will endeavour to ensure that this is no later than 20 working days from the date of the closing of the hearing.

 


[1] Process or Proceedings of the DLC will not be invalided by reason of a failure to adhere to this Code of Practice.

[2] Section 200

[3] Section 201

[4] Section 187 - Functions of licensing committees

[5] Section 188

[6] Section 207

[7] Section 201(4)

[8] Section 203(9)

[9] Section 202(4)

[10] 203 Proceedings of licensing authority and licensing committees

(1)           Whenever the licensing authority meets for the purpose of hearing any appeal, or the authority or any licensing committee meets for the purposes of exercising or performing any power or function that it is required by this Act to exercise or perform at a public hearing, the meeting must, except in a case to which section 202(1) applies and subject to the provisions of subsections (3) and (4), be held in public.

…

(3)           Whenever the authority or committee holds a public hearing it may in its discretion hold any part of the sitting in private if, having regard to the interests of persons appearing and being heard and to the public interest, it thinks it proper to do so.

(4)           The authority or committee may in any case deliberate in private as to its decision on any matter or as to any question arising in the course of any proceedings.

 

[11] 211 Decisions to be given in writing

(1) The licensing authority and every licensing committee must give its decision on an application in writing, and must state in it—

(a) the reasons for the decision; and

(b) what reports on the application were received; and

(c) the attitude towards the application of every report.

(2) The statement of the attitude towards an application of any report may be in general terms only.

…