2.3 Hearing preparation

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.  This section provides guidance and tools to support your preparati

Snapshot of this section

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.

The DLC will already have received your report.  You may need to draft other documents for the hearing:

  • a brief of evidence to establish your credentials and provide your evidence to support your view on the application 
  • an opening submission to introduce your position on the application and the evidence you will provide to support it
  • a closing submission 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 they 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.

Go to toolbox

 

This step covers: 

Legal requirements: what the Act says

Best practice guidance

  1. Working with the other agencies
  2. Writing your brief of evidence
  3. Drafting submissions
  4. Using case law
  5. Preparing for cross-examination
  6. Disclosure and timelines for providing information
  7. Adjournment prior to a hearing
  8. DLC procedures and roles
  9. Hearing etiquette

Legal requirements for Step 3 - what the Act says


Who can make decisions on applications?

A district licensing committee (DLC) may decide any application for a licence (s 104), renewal (s 130) or manager’s certificate (s 221). With the leave of the chair of ARLA, the DLC may refer an application to ARLA for a decision. The DLC must give ARLA the complete file for any application to be decided by ARLA (ss 104, 130 and 221).

 

When hearings are required

Where an objection has been filed, the DLC must hold a hearing unless (s 202):

  • the application is withdrawn, or
  • the DLC believes the objection is vexatious or based on grounds outside the scope of the Act, or
  • the objector does not require a public hearing.

 

The full DLC takes part in the hearing.

A public hearing is not technically required where there is only agency opposition but no public objection to an application for a licence or manager’s certificate. However, an agency can appeal any subsequent decision if they feel that their right to be heard was not given.

 

Notification of hearings

The DLC must give at least 10 working days’ notice of the hearing to the applicant, each objector, the Police, the inspector and the Medical Officer of Health.

 

Selection of the DLC for the hearing

Each DLC is made up of a chairperson (who can be either a councillor or a commissioner) and two members appointed from a list of members approved by the council (s 189). 

The committee members must have experience relevant to alcohol licensing matters and can include elected members of the council (s 192(2)). A commissioner is someone who is not a councillor but has the required knowledge, skill and experience relating to alcohol licensing, and is appointed under the Act (s 193(1), (2) and (3)).

For each hearing, there is a process to check that none of the committee members has any conflict of interest (s 192(5)).

Each council decides a process for determining which list members will sit on each DLC for each of its hearings (s 192).

 

Objectors

A person may object to the granting of a new licence or licence renewal if they have a ‘greater interest’ in the application than the public generally (s 102(1)). The DLC determines who is a valid objector based on the information that the objector provides. 

The toolbox sets out the sections of the Act that are relevant to this step.

 

Best practice guidance for Step 2
2.3.1       Working with the other agencies

It is 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.

 

Each agency has independent obligations

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.

 

But you can work together

While each agency has its own views on the application, you can work together to share information and discuss your assessment of an application. 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?
    • what order will you present in?
  • discussing the documentation disclosed by the applicant and other parties
  • sharing any relevant information arising from any ongoing monitoring.

 

2.3.2       Writing your brief of evidence

What is a brief of evidence?

The evidence you give to the committee as a witness is your 'evidence in chief'. This evidence must also be presented in written form - this is your 'brief of evidence'.

Your brief of evidence has three main purposes.  It establishes your credentials.  It provides detailed explanations of the reasons for your position. Finally, it outlines your evidence to support your view on the application.

Generally, you will be required to read your evidence in chief, though this is at the discretion of the chair of the committee.

 

How does your brief of evidence differ from your report?

You will already have lodged your report on the application with the DLC. 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.

 

What should your brief of evidence include?

It 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.

 

What should your brief of evidence not include?

It shouldn’t 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.

 

Can it introduce new information?

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.

 

What is the format?

The format for evidence is subject to some conventions (for more information see Part 1.2 Gathering and using information and evidence). However, the DLC may accept any evidence that is clearly set out, shows the identity and role of the witness (including who they represent), and what case it relates to (see section 207 of the Act).

You must provide copies for each of the main participants at the hearing - a minimum of eight copies.

The Toolbox contains example Briefs of Evidence

 

 

2.3.3       Drafting submissions

What is a submission?

A submission sums up your position.  It can include arguments based on the facts which will be (or have been) presented in evidence. You can prepare submissions before the hearing.

 

Opening submissions

There is no legislative requirement to develop an opening submission. But it is helpful to do so, at least as part of your preparation.

DLC members appreciate a summary of why a public hearing has been called and what everyone's position is.  An opening submission can introduce your position on the application and the evidence you will provide.  It can also outline:

  • the type of licence and type of premises
  • the company
  • grounds for the application/suspension etc
  • the witnesses.

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.”

The toolbox contains an opening submission template

The toolbox contains an example of an opening submission

 

Closing submissions

The purpose of the closing submission is to summarise your position on why the licence or certificate should not be issued. This can include responding to any arguments made during the hearing; however, no new evidence can be introduced at this stage.

This is the time to introduce case law if it would be helpful to the committee. You need to say how it relates to your case and the evidence you have brought. You must have copies of the case law available for the committee members to refer to.

The toolbox contains an example of a closing submission

 

2.3.4       Using case law

Use case law where it is relevant to the application and the grounds for your opposition.  Use it sparingly.  Use commonly known precedent decisions.  Use recent case law where possible.

 

What is case law?

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). Section 1.5 contains more background on case law.

 

Use relevant case law

Keep any use of case law relevant to the issue. If you oppose an application because of an applicant’s character, make sure that any case law you quote is relevant to this point. 

If you are referring to case law, read the whole case rather than other people's summaries of those cases. Some cases have general statements of law which apply to all cases.  However, others only apply in certain circumstances. (This is known as ‘distinguished' on the facts:  legal terminology meaning that a court can decide that the reasoning of the precedent case does not apply due to materially different facts between the two cases.)

If you are seeking to distinguish a precedent case (particularly one which is binding ie, a High Court decision), you will need to set out why it does not apply in this instance. For example, you need say to the court, “The [agency] submits that the finding in [case] does not apply in this instance. This is because [cite reasons].”   

Check whether the quoted decision was appealed.  Has the decision had other negative comment even if it was not appealed? What was the status of the decision – was it an interim or final decision? What was the result?

 

You can’t ignore relevant case law

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.

 

Presenting your case law

If you are citing case law, be wary of paraphrasing in case you inadvertently change the meaning. It is usually better to quote the words of the case directly.

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.

 

Accessing case law

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 which provides daily updates on case law.

 

2.3.5       Preparing for cross-examination

Before the hearing you can prepare for cross-examining witnesses and being cross-examined as a witness yourself.

 

Use your previous work

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.

 

Look at your evidence

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 or the Police to explain what happened.

 

2.3.6       Disclosure and timelines for providing information

Disclosure of evidence and information is a key principle of natural justice.

Natural justice requires that people must be allowed an opportunity to present their case where their interests and rights may be affected by a decision maker. The decision maker must give people the opportunity to prepare and present evidence, and to respond to arguments presented by the opposing side. 

 

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 doesn’t happen, parties may seek an adjournment. Rather than leave the door open for an appeal, the DLC could adjourn the matter. Or, because they may be reluctant to adjourn, they may discount the evidence.

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

 

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 DLC 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.

You can use a ‘DRAFT’ label on briefs of evidence that are prepared and disclosed well before the hearing.  This allows for minor changes without risking a claim that the licensee or their representative has been misled.

 

Staged disclosure

For complex cases or when there is a lot of evidence, disclosure can be done in stages.  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.

The Toolbox contains an example disclosure list

 

Introducing new information

New information is not normally introduced at the hearing.  The requirements of natural justice mean that the applicant should know all the grounds for opposition before the hearing. 

Your report should adequately cover any matters intended to support your opposition to an application.  Your brief of evidence should expand on the evidential basis of your opposition.  The brief should build upon arguments raised in the report. It should not introduce new grounds for opposition or new arguments under grounds that have not been previously identified.

However, you may be able to introduce new information in some limited circumstances.  It is possible that:

  • you may have overlooked grounds for opposition or arguments when preparing your report, or
  • grounds of opposition or arguments come to light or evolve only after your report has been filed.

In such situations, the DLC has discretion to allow you to advance those grounds or arguments via supplementary reports. These should be disclosed as soon as possible. The secretary should check with the parties to ensure that they have had enough time to consider the material.

The responsibility of the DLC is to evaluate applications having regard to the criteria contained in the Act and the evidence produced on the day. If the points you wish to make are essential to that, then the DLC should permit them to be made. But, in the interests of natural justice, the DLC may grant an adjournment of the hearing or postpone the commencement or continuation of the hearing so that the applicant has a proper opportunity to respond.

 

2.3.7       Adjournment prior to a hearing

Any of the 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. 

A request for an adjournment must be made in writing to the secretary. The DLC must issue a minute in response, either granting the adjournment or refusing to do so with reasons. The minute will usually be written by the chair and issued by the secretary.

 

2.3.8       DLC procedures and roles

Procedures

A DLC can regulate its own procedure, subject to the provisions of the Act and the regulations made under it (s 203(9)), and the Commissions of Inquiry Act 1908. The DLCs procedure must follow the principles of natural justice and, in particular, must ensure that every eligible person is given an opportunity to be heard.

DLCs have an inquisitorial role. This means that they are actively involved in investigating and assessing the facts of the case. This differs from an adversarial role, where the court acts as an impartial referee between the parties.

DLCs have powers under the Commissions of Inquiry Act 1908.  These powers allow them, for example, to require documents to be produced and to summon witnesses. 

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 hearing

Before the hearings the committee members should have:

  • read the application, reports, submissions and evidence from all parties, including agencies and objectors
  • conducted a site visit where appropriate
  • prepared a list of questions or issues to flag
  • checked for any conflicts of interest (among committee members)
  • identified any administrative or procedural matters that need to be dealt with at the beginning of the hearing.
  • developed an agenda (view an example hearing agenda)
  • determined whether an audio recording of the hearing will be made (ARLA will require a transcript of hearings that are appealed and suggests DLCs make provision for audio recordings – see Practice Note 10 March 2017)

 

During a hearing

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
  • taking comprehensive notes of any evidence that is not provided in written form
  • 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

After the hearing, the DLC is required to:

  • deliberate in private, consider the evidence that has been presented, and decide whether they have sufficient information to make a decision
  • provide a decision in writing that includes: 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 (in practice the secretary does this).

View an example script for DLC chair which outlines the procedure and processes for a hypothetical hearing.

 

2.3.9       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.

View a detailed guide to hearing etiquette


Toolbox

Template for an opening submission

Example of an opening submission

Example of a closing submission

Example Brief of Evidence to ARLA

Example disclosure list

Example witness list

Example document coversheet/checklist

Detailed guide to hearing etiquette

 

Step 3 – Hearing preparation

Sale and Supply of Alcohol Act 2012 references

99          Applications to be made to licensing committee

105        Criteria for issue of licences

106        Considering effects of issue of renewal of licence on
              amenity and good order of locality

131        Criteria for renewal

136        Temporary authorities: on-licences and off-licences

140         Objections to applications

186         Territorial authorities to appoint district licensing
               committees

187         Functions of licensing committees

188         Powers of licensing committees

189         Composition of licensing committees

190         Meetings of licensing committees

191         Quorum

192         Territorial authority to establish and maintain list of
               licensing committee’s members

193         Appointment of commissioners

194         Resignation or removal

200         Application of Local Government Official Information and
               Meetings Act 1987

201         Licensing authority and licensing committees have
               powers of commissions of inquiry

202         Procedure 
               202(3) when a hearing is required

203         Proceedings of licensing authority and licensing
               committees

204         Right of certain persons to appear in proceedings