Module 3: Hearing preparation

Alcohol licensing & hearings guide for regulatory agencies

Good preparation will save you time, contribute to good hearing outcomes, and help to achieve the objective of the Sale and Supply of Alcohol Act 2012 (the Act).

Snapshot of this module

It's good practice to work with the other statutory agencies when preparing for hearings.

You will generally have at least ten days' notice of a hearing.

Your brief of evidence establishes your credentials and provides your evidence to a District Licensing Committee (DLC) to support your view on the application. 

An opening submission can introduce your position on the application and the evidence you will provide to support it.

Closing submissions are an opportunity to summarise your case and provide case law to support your evidence.

Use case law where it is relevant to the application and the grounds for your opposition.

Prior to the hearing prepare for cross-examining witnesses and being cross-examined as a witness.

Any evidence prepared for the hearing must be disclosed to all parties prior to the hearing so that the parties have an opportunity to prepare a response to it.  

While DLCs follow the same basic processes, each operates slightly differently.   

There is standard etiquette that you should follow when taking part in a hearing.

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This module covers: 

    Working with the other agencies

    Inspectors, the Police and the Medical Officer of Health all have independent statutory obligations in relation to licences and hearings. Each agency must assess an application and come to its own view on whether, if granted, it would meet the objectives of the Act. While each agency will have its own views on the application, you can work together to share information and discuss your assessment of an application.

    You will generally have at least ten days' notice of a hearing.

    It is good practice to work with the other statutory agencies when preparing for hearings. This ensures you understand one another's positions and are familiar with the arguments and evidence each agency will present. You can also work together to identify who will do what at hearings, consider how your evidence and submissions relate, limit the duplication of information and questioning, and reduce the length of hearings.

    Consider working with other agencies to prepare for the hearing by:

    • sharing your reports
    • sharing your briefs of evidence
    • discussing your thoughts on submissions. Although you won't have heard all the evidence until the hearing, you can begin to prepare your submission prior to the hearing. This is the point where you start to consider relevant case law
    • discussing your approach to the hearing:
      • What evidence will each agency give?  Is there any duplication?  How does the evidence relate to the arguments put forward by the other agencies?
      • Will one agency lead cross-examination?
      • Will you make joint submissions at the hearing?
    • discussing the documentation disclosed by the applicant and other parties
    • sharing any relevant information arising from any ongoing monitoring.

    Writing your brief of evidence

    Your brief of evidence is the written version of the evidence in chief you present to the committee at a hearing.

    The purpose of your brief of evidence is to establish your credentials, provide detailed explanations of the reasons for your position, and outline your evidence to the committee to support your view on the application.

    You will already have lodged your report on the application with the DLC. In your report you will have set out your views on the application and the basis of any opposition under the Act. You may also have alluded to evidence to support your views. Use your report as the basis for your brief of evidence. The brief of evidence is your opportunity to present that evidence to the committee. It must be factual and set out the specific details of your evidence – who, what, when and where.

    If your report was extremely detailed, you may not need to draft a brief of evidence as well. You will need a brief of evidence if you want to provide the committee with more detail than is included in your report.

    DLCs have the flexibility to consider any information they deem relevant but they must provide for natural justice. You cannot introduce any new objections in your brief of evidence that were not included in any previously disclosed report. You may be able to introduce new information gathered after you wrote your report, provided it relates to your objections.

    Your brief of evidence should include:

    • the application details and sections of the Act under which the application has been lodged – refer to the Notification of Hearings to get the correct names, spellings and hearing/licence references
    • your full name
    • your role and how long you have been in that (or a similar) role
    • reference to your report lodged with the committee and your view on the application (ie, if you oppose the application in its entirety or only aspects of the application)
    • any discussions held with the applicant since your report was lodged with the committee and any changes to your position as a result
    • the basis of your opposition under the Act (with reference to specific sections)
    • your reasons for opposing the application under these sections
    • reference to specific evidence that you will produce to the committee.

    Your brief of evidence should not include:

    • case law – you can present case law, but not as part of your brief of evidence. This would be more appropriate as part of your closing submission
    • your opinion on what should happen with the application – the brief of evidence should contain only factual information. Your opinion on the application and how it should be dealt with should be included in your closing submission.

    The format for evidence is subject to some conventions though the DLC may accept any evidence that is clearly set out and shows the identity and role of the witness (including who they represent) and what case it relates to (click here for more detail in section 207 of the Act). Note that you will need a minimum of eight copies of your evidence for the hearing.

    The Toolbox contains examples of Briefs of Evidence.

    Drafting submissions

    Submissions sum up your position and can include persuasive arguments based on the facts which will be presented in evidence. You can prepare your submissions before the hearing.

    Opening submissions

    While there is no legislative requirement to prepare an opening submission, it is always helpful to do so, at least as part of your preparation of the case.

    An opening submission can introduce your position on the application and the evidence you will provide. Members sitting on the committee generally like to have a short synopsis of why a public hearing has been called and what everyone's position is. It will be relevant to briefly outline the type of licence and type of premises, who the company is, grounds for the application/suspension etc and who the witnesses are.

    A short, succinct opening will usually signal to the DLC that they are going to hear relevant and clear evidence. For example, the following paragraph relating to enforcement signals to the committee that the submissions have been carefully thought out:

    “The Police work collaboratively with the Licensing Inspector and Medical Officer of Health in this area. We receive information about licensed premises from a variety of sources. We apply that information in a graduated response. The premises before the committee today have reached a stage where they are now monitored regularly.”

    Click here for an opening submission template.

    Click here for an example of an opening submission.

    Closing submissions

    This will be the opportunity to summarise your case and provide case law to support your evidence. Any submissions should also be presented in writing.

    Click here for an example of a closing submission.

    Using case law

    Use case law where it is relevant to the application and the grounds for your opposition. Case law is the law created by judges when deciding individual disputes or cases. It includes the common law (areas of law that rest mainly or entirely on court decisions) and also decisions interpreting and applying statutes (Acts).

    In every case, it is important to keep the case preparation relevant to the issue. If an opposition has been lodged because of an applicant's character, keep this relevant to this point. Find case law on this point and be succinct in your argument. If there is insufficient evidence to frame an argument around it, do not persist with the argument.

    If you are referring to case law, ensure you have read the whole case rather than referring to other people's summaries of those cases. While there are cases which have general statements of law, there may be other cases that are relevant only on their facts. (This is known as ‘distinguished':  legal terminology meaning that a court can decide that the reasoning of the precedent case will not apply due to materially different facts between the two cases.)

    You will need to canvas all of the case law and decide whether it is relevant to the point you're trying to make or whether it can be distinguished on its facts. You will need to know those facts so that if you are challenged you can tell the court why you are distinguishing that case or submitting it to be relevant. You cannot ignore case law that doesn't support your position, but you will have to consider whether the facts make it materially different from what your view is.

    You can refer the committee to case law that supports your view, and also advise them of any contrary case law. For example, “I refer you to Smith v Jones, in which it was decided that all hotels be painted red. There are 25 other judgments in support and one in opposition, which states that all hotels should be painted blue.”

    Where you are seeking to distinguish a precedent case (particularly one which is binding ie, a High Court decision), you will say to the court: “The [agency] submits that the indication in [case] does not apply in this instance. This is because [cite reasons].” 

    Ensure that you have your case law properly bound or neatly available and indexed for committee members. Provide copies for each of the people hearing the case, as they do not want to be looking over each other's shoulders at submissions, case law, exhibits etc.

    Use case law sparingly and use commonly known precedent decisions.  Use recent case law where possible.

    The New Zealand Legal Information Institute has case law online, including in its databases for Liquor Licensing Authority decisions up until 21 December 2012 and Alcohol Regulatory and Licensing Authority decisions from 2013.

    Consider subscribing to an online case law guide to the Sale and Supply of Alcohol Act 2012, such as Westlaw http://training.thomsonreuters.co.nz/products/westlaw-nz/, which provides daily updates on case law.

    Visit the Toolbox for links to a case law companion for alcohol licensing.

    Preparing for cross-examination

    You can prepare for cross-examining witnesses and being cross-examined as a witness before the hearing.

    The work you did on identifying the grounds for your position will be particularly helpful in preparing for cross-examination. In your preparation you considered the following questions:

    1. What are the grounds for your opposition under the Act?
    2. What does the application lack?
    3. Why are you opposing this application?
    4. What evidence do you have?
    5. What are the contrary facts and arguments?
    6. How will you counter the applicant's arguments?

    You can use the answers to these questions to help you develop your questions for cross-examination, and your responses for when you are cross-examined.

    You will also need to look at the evidence (both yours and that of other parties) and identify any weaknesses or limitations that may be exploited during the hearing. If there are gaps in your evidence, is there a witness that could fill these gaps?  For example, you might know that an applicant has previously failed a Controlled Purchase Operation, but you might not know the circumstances. You could ask the applicant to explain what happened.

    Disclosure and timelines for providing information

    It is important to keep the need for disclosure in mind from the outset because it may influence decision making with regard to evidence.

    The need for disclosure

    Any evidence prepared for the hearing must be disclosed to all parties before the hearing so the parties have an opportunity to prepare a response to it.

    If this opportunity is denied, parties may seek an adjournment. Rather than leave the door open for an appeal, the DLC could, at best, adjourn the matter or, because they may be reluctant to adjourn, discount the evidence.

    The decision of Challenge Enterprises ‘The Mix' NZARLA PH 1107/2013 at paragraph [22] onwards gives the Alcohol Regulatory Licensing Authority's guidelines on disclosure by the agencies and the underlying principle of ‘natural justice' and how it underpins the hearing process.

    It is helpful for briefs of evidence that are prepared and disclosed well before the actual hearing to be clearly labelled ‘DRAFT' to allow for minor changes without risking a claim that the licensee or their representative has been misled.

    For complex cases or when there is a lot of evidence, disclosure can be done in stages but always include a covering letter listing the documents disclosed. Keep a copy of this letter on file for reference. This also avoids risk if there is some contention about what documents have been disclosed.

    Visit the Toolbox for resources and examples

    Timeframes for disclosure

    Timeframes for disclosure are not set in legislation. They are more a matter of convention. It is helpful if the timeframes can be set locally by agreement (as part of a wider hearings policy or protocol) or as directed by the relevant DLC. The committee will always have discretion to waive any such requirements or alter procedure as it thinks fit.

    The following timeframes could be adopted as a matter of good practice:

    • All briefs of evidence and any other documentary material that the agencies seek to introduce into evidence must be disclosed to the applicant, the other reporting agencies, and the secretary of the committee 10 working days before the scheduled hearing.
    • Final submissions may be disclosed 10 days prior to the hearing but they can also be presented on the day of the hearing. If they are more than a few paragraphs, submissions should be type written and handed up to all parties on the day of the hearing.
    • If exceptional circumstances exist, the committee may allow an extension of time to file, but this should be no later than five working days before any hearing.

    New information

    Your report should comprehensively identify any matters raised in opposition to an application and your brief of evidence should flesh out the evidential basis of your opposition (see Module 2 for more information). Your brief will simply build upon arguments that you have raised in your report and will not introduce new grounds for opposition or new arguments under grounds that have been identified. This is appropriate, given the requirements of natural justice.

    That said, it is possible that in preparing your report you may have overlooked grounds for opposition or arguments. It is also possible that grounds of opposition or arguments come to light or evolve only after your report has been filed. In such situations, committees do have discretion to allow you to advance those grounds or arguments. Supplementary reports can be filed if the applicant or opposing agencies have new information that needs to be before the DLC.  The responsibility of a DLC is to evaluate applications in light of the criteria contained in the Act. If the points you wish to make are essential to that, the committee should permit them to be made but it may be required, in the interests of natural justice, to grant an adjournment of the hearing or to postpone the commencement or continuation of the hearing so that the applicant has a proper opportunity to respond.

     

    Adjournment prior to a hearing

    All parties can seek an adjournment prior to a hearing if there are valid reasons, such as a lack of disclosure or unavailability of key witnesses. This must be done in writing and the committee must issue a Minute in response, either granting the adjournment or refusing to do so with reasons.

    DLC procedures and roles

    Procedures

    DLCs can formulate their own proceedings in accordance with the Act and their powers under the Commission of Inquiry Act 1908. A Commission of Inquiry is an inquisitorial system. This means that the committee is involved in investigating the facts of the case. This differs from an adversarial system, where the court acts as an impartial referee between the parties.

    DLC powers allow them to require documents to be produced and to summon witnesses. For example, committees may ask council staff to provide assistance at hearings about an application's consistency with a local alcohol policy.

    While all committees follow the same basic processes, each operates slightly differently. Some are less formal, operating more like a meeting, while others are more formal and operate more like a court.

    Roles

    The DLC has roles before, during and after the hearings.

    Before the hearings the committee members should have:

    • read the application
    • read all reports, submissions and evidence from agencies
    • read submissions, evidence or papers from objectors
    • conducted a site visit where appropriate
    • checked for any conflicts of interest (among committee members)
    • prepared a list of questions
    • developed an agenda (click here for an example hearing agenda)
    • determined whether an audio recording of the hearing will be made (ARLA will require a trancript of hearings that are appealed and suggests DLCs make provision for audio recordings - see Practice Note 10 March 2017)

    The chairperson of the committee is responsible for running the hearing. This includes:

    • creating and maintaining an environment with the appropriate level of formality
    • making sure people are introduced
    • identifying the applicant, reporting agencies and objectors
    • being clear about the process – who will present first, who will follow etc – and communicating this to those present
    • following the format of examination in chief followed by cross-examination and re-examination
    • ensuring other committee members have had the opportunity to ask any questions
    • calling an adjournment during the hearing if required
    • considering whether any part of the hearing needs to be held in private
    • considering when to use a reserved decision option
    • ensuring that all parties treat each other with respect and follow the correct procedures.

    During the hearing, all committee members are responsible for:

    • asking questions for clarification
    • ensuring they have all the information they need to make a decision before closing the hearing (if the committee later finds that it needs more information, it must reconvene the hearing with all the parties.)

    After the hearing, the DLC is required to:

    • provide a decision in writing that must include the reasons for the decision, the reports received, and the views of those reports on the application
    • give a copy of the decision to the applicant, any objectors, and the Police, Inspector and Medical Officer of Health.

    Click here for an example of a script for a committee chair which outlines the procedure and processes for a hypothetical hearing.

    Who attends hearings?

    Those likely to attend a hearing include:

    • the applicant, and their representatives, lawyers and witnesses
    • objectors and any associated representatives, lawyers and witnesses
    • the committee chairperson, members and advisors
    • the Medical Officer of Health or their delegate
    • representatives of the Police
    • the council's Licensing Inspector
    • other council officers, to give reports or technical advice to the committee
    • members of the public
    • news media representatives.

    Hearing etiquette

    The standard etiquette you should follow when taking part in a DLC hearing is to:

    • be professional and courteous at all times
    • ensure you bring all the documentation you need
    • follow the direction of the chairperson
    • be direct and to the point; focus on the facts and not personalities or emotions
    • remember that everything you say is part of the public record; all evidence and submissions given at a hearing can become public and are made available at the hearing.

    Click here for a detailed guide to hearing etiquette.

    Disclaimer
    The information contained in this online guide is intended as a general guide.
    While reasonable measures have been taken to ensure that the information is current and accurate as at October 2017, the Health Promotion Agency cannot accept any liability for any inaccuracy, omission or deficiency in relation to the information. It is not legal advice and you should not rely on anything contained in this guide in any legal proceedings. The information provided does not replace or alter the laws of New Zealand, and you should consult the legislation and obtain your own legal and professional advice, as appropriate. The Health Promotion Agency will not accept liability for any action taken in reliance on anything contained in this online guide.

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