Angas PK Cellars v Nuriootpa Vine Inn H/M & Mahelp No. Scgrg-00-417

[2000] SASC 302

ANGAS PARK CELLARS PTY LTD v
NURIOOTPA VINE INN HOTEL MOTEL PTY LTD and
 MAHELP PTY LTD
[2000] SASC 302

Full Court:  Prior, Lander and Bleby JJ

1................ PRIOR J:....................... This is an appeal by leave from a decision of the Licensing Court. 

1. On 17 April 2000, the appellant’s application for a retail liquor merchant’s licence in respect of premises at a shop in the Barossa Regional Shopping Centre, Nuriootpa was refused.  This application was not the first of its kind.  An acting judge of the Licensing Court refused an earlier application by the same applicant in September 1999.  There was no appeal against that refusal.  Within 14 days of the refusal a fresh application for the same form of licence, at the same site, was lodged.  The Court was told that a different type of case would be presented by the applicant.  The Licensing Court judge accepted that assurance and refused to dismiss the application as an abuse of process.  Leave to appeal from that decision was refused by a judge of this Court[1].

   [1]      Nuriootpa Vine Inn Hotel and Motel Pty Ltd & Anor v Licensing Court [1999] SASC 512

2. In giving his reasons for refusing the application, the judge of the Licensing Court described the latest application as “one which relates to a different proposed trading operation”.  His Honour said that there was, “to some extent, different evidence … called”.  However, the Licensing Court judge said that the case “essentially confirmed” the findings of the court in the earlier application.  The Licensing Court judge referred to the acting judge’s comments as to population, and his findings with respect to the history of the earlier application, the discussion about various premises, “parking and other perceived inconveniences”, the size of the proposed store, the “description of the supermarket and so on”. 

3. The earlier application was refused upon a finding by the acting judge that the evidence did not satisfy him that the demand for liquor by persons living in the locality was not adequately catered for by other existing facilities.  The three facilities then particularly considered by the acting judge were the bottle shop of the Vine Inn at Nuriootpa, and Tanunda Cellars and the Weintal Hotel, both at Tanunda.  A limitation upon the Tanunda Cellars’ facilities was such that had that been the only facility available the acting judge may have found that the applicant had made out its case.  However, the bottle shop at the Vine Inn was seen by him to be one providing a range of liquor quite adequate to meet the demand for liquor by persons living in the locality.  The Vine Inn Bottle Shop was said to be comparable to that of the applicant’s premises.

4. Section 58(2) of the Liquor Licensing Act 1997 provides:

   “An applicant for a retail liquor merchant’s licence must satisfy the licensing authority that the licensed premises already existing in the locality in which the premises or proposed premises to which the application relates are, or are proposed to be, situated, do not adequately cater for the public demand for liquor for consumption off licensed premises and the licence is necessary to satisfy that demand.”

On the present application the Licensing Court judge found that the Tanunda Cellars’ premises had been improved, with a change of management.  His Honour found that those premises were now “of more than acceptable contemporary standard”.

1. The Licensing Court judge was critical of the evidence coming from two persons, he described as the promoters of the current application.  He identified their current plans as of very recent origin and invention, “hatched” by them subsequent to the decision of the acting judge “to overcome or avoid the consequences of that judgment”.  His Honour found that these two witnesses had “put their heads together to hatch a tourist information centre/premium wine/every wine of the Barossa Valley plan, which they thought might overcome the drawbacks of the first effort”.  His Honour said that that attempt “well and truly failed”.

2. The Licensing Court judge found that the public want a reasonably comprehensive range of liquor from most areas of Australia and some from overseas. His Honour said he had never heard of a case where there was a demand for an entire range of a region’s product. This was one of the bases for the current application. His Honour said that he was prepared to find that ,in this particular area, there was a high demand for premium wines and a higher demand for Barossa products than one might find elsewhere. However, His Honour said he did not detect a demand of the kind promoted by the applicant in this case. On the evidence before him, the Licensing Court judge said that the witnesses did not demonstrate any significant inadequacy in terms of s 58(2). In particular, His Honour’s finding was that the Tanunda Cellars was meeting the needs of the local area. In concluding his reasons for decision, the Licensing Court judge said he was unconvinced that the applicant had made out its case. His Honour said:

   “Rightly or wrongly I have gained a picture of the two promoters trying to set upon a scheme, come what may, to overcome the flaws evident in an earlier attempt.  I just say this generally.  You cannot get a Retail Liquor Merchant’s Licence simply by showing there are a number of small wineries unrepresented in a locality.  Or indeed that there is some smallish lack of overseas wines or boutique beers.  Or showing that the whole range of one particular area is not available in a locality.  In my view much more than this is required.  Demonstration of a lack of a wide range, a lack of variety, a lack of popular items, a lack of premium liquor and so on is the proper approach.  Not the approach adopted by this applicant.”

3. In this appeal it is said that the court should have found that the provisions of s 58(2) of the Liquor Licensing Act had been satisfied and that the application should be granted.  In particular, it is said that the judge erred in that he failed to refer to and apply to the evidence before him reasoning of the Full Court in Nepeor Pty Ltd v The Liquor Licensing Commission & Ors[2]. 

   [2] (1987) 46 SASR 205 at 207, 208 - 209, 219 - 220

4. It was not in dispute before the court that the locality for the purposes of the application was the whole of the Barossa Valley.  That was the view of the acting judge in the earlier application.  It is complained that whilst the finding that the Tanunda Cellars met acceptable contemporary standards, it was not a proper finding that the public demand in the area was adequately catered for in view of the fact that persons from Nuriootpa would have to make a 20 - 30 minute special round trip in order to fulfil their liquor demands at Tanunda Cellars. 

5. That submission also overlooks the Vine Inn at Nuriootpa.  In that respect the judge adopted the findings of the acting judge whose view was that the Vine Inn offered a range of lines with little to choose between them and those proposed by the applicant.  The objector’s case was stronger this time than last in that Tanunda Cellars, as a consequence of the change of management, was no longer the subject of earlier criticism.

6. In Nepeor[3] King CJ said that in determining whether demand can be met by existing facilities it is necessary to have “primary, although not exclusive, regard to facilities in the general locality of the proposed licensed premises”.  His Honour said that the distances which many people in the locality had to travel “in busy traffic conditions and across arterial roads, to satisfy their …. liquor needs” were quite unreasonable.  Bollen J was less emphatic.  He said he doubted whether the distance to go and the difficulties in travelling to the existing premises was unreasonable[4].  However, when other factors were taken into account, particularly the stock available and the state of the premises, the refusal of the licence in that case was not justified. 

   [3] (1987) 46 SASR 205

   [4] see (1987) 46 SASR 205 at 208

7. Von Doussa J made a clear distinction between circumstances in the metropolitan area of Adelaide and the country.  The need to travel 6 kilometres in the north-eastern suburbs was seen as going beyond mere inconvenience, so that the demand for liquor by members of the public required to so travel could not be met by the existing facilities in a reasonable and realistic sense[5].  However, as for country areas, His Honour said a trip of equivalent distance, usually on roads carrying a light volume of traffic could frequently be considered reasonable and indeed, unexceptional.  Such travel was described by His Honour as “an ordinary incident of country living”. 

   [5] (1987) 46 SASR 205 at 220

8. A question in this case is whether the judge was entitled to hold the view that he did that the existence of the Tanunda Cellars facility, in particular, meant that the applicants had not established that existing facilities did not adequately cater for the public demand.  The judge referred to the evidence of a particular witness, who had to make a 20 - 30 minute round trip to have his needs met at the Tanunda Cellars.  As to that, His Honour said that he was dealing with a very mobile population and that a 20 - 30 minute round trip in the area did not involve a particularly inconvenient drive.  His Honour said that the roads, whilst busy at times were generally pretty good.  His Honour referred to feelings of inconvenience in the minds of some persons who would have to do that.  His Honour spoke of it not asking much of such a person to make “this special trip”.  In this particular part of his reasons, His Honour was obviously considering the principles discussed in Nepeor.  A failure to specifically refer to the reasons in Nepeor does not mean that His Honour ignored the authority of that case. The remarks made seem consistent with the reasoning in that case. It was open to His Honour to find that the need to travel some distance to Tanunda Cellars from within the Valley did not go beyond mere inconvenience. We do not think it is appropriate for this Court to interfere with the finding of the specialist tribunal with respect to the evidence led in an effort to discharge the onus on the applicant imposed by s 58(2).

9. When this application was the subject of an application for leave in this Court in December 1999.  Perry J said that lay evidence of demand,

   “…tends to be very subjective and coloured by the natural leaning of many people to support any new facility however marginal the real case as to need might be.  More important than evidence of that kind are the objective features of the locality and its demographics, coupled with the Licensing Court’s own expertise as to what the reasonable requirements of contemporary demand may be, considered in the light of a very stringent test for the grant of a retail liquor licence which is still a feature of the legislation.”

His Honour also observed that, in the interests of the proper and orderly dispatch of its business,

“the court should be reluctant to part from its earlier ruling … unless it is a clear case where some important feature has been overlooked in the earlier application, or in circumstances where the fresh application relates to a completely different trading operation.”[6]

[6] [1999] SASC 512 at [15], [17]

1. We respectfully agree with those observations.  The objective features of the locality and its demographics had not changed.  There was no evidence before the Licensing Court in this case to suggest that it should adjust its views as to what were the reasonable requirements of contemporary demand in the locality.

2. The only material difference between this application and the previous one was the proposal to stock a greater range of wines, concentrating in particular on wines of the Barossa Valley, to provide within the same licensed premises a tourist information service, and to provide some wine promotions within the store. It is pertinent to refer to the observations of the Chief Justice on s 58(2) of the Act in South-Eastern Hotel Pty Ltd v Woolies Liquor Stores Pty Ltd[7].  Speaking on behalf of the Court he said:

   “The language used by Parliament suggests that, as before, the focus of s 58(2) is upon the demand for liquor and the availability of liquor, whereas the focus of s 58(1) is on the needs generally of the public in the locality, although of course those needs are to be considered in relation to the facilities that might be provided by a hotel licence. That broader focus in relation to a hotel licence is apt to enable more emphasis to be given to the wishes and preferences of the public in relation to matters of style of premises, the availability of choice and of a variety of outlets, matters of preference, matters of convenience and so on. The language used in relation to a retail liquor merchant’s licence focuses attention more closely on the demand for and availability of liquor. Matters of the type just adverted to by me are not wholly irrelevant in that context. However, they are to be given less weight because the court is concerned with the demand for liquor and its availability, and not with the wider concept of the needs of the public....

   . As was the case under s 22(2) of the Licensing Act 1967 (SA), and s 38(1) of the Liquor Licensing Act 1985 (SA), mere inconvenience in getting liquor from an existing outlet is not enough to justify the grant of a new licence. Nor is a mere preference to shop at a particular place, or a preference for ‘one‑stop shopping’ enough to establish that existing premises do not adequately cater for the public demand. The fact that the public wish to purchase liquor at a proposed new outlet, or would prefer to be able to purchase their liquor at that outlet, does not of itself establish that existing premises do not adequately cater for the public demand. The court is required to assess that wish or preference by reference to contemporary standards to determine whether, if the demand for liquor is to be met at existing premises, it can be said that those premises do adequately cater for the public demand.”

   [7] (1998) 71 SASR 402 at 404 ‑ 405

3. The additional amenities being proposed by the applicant on the present application were matters which, in an application for a retail liquor merchant’s licence, carry much less weight than they do in assessing the needs of the public under s 58(1) as in the case of an application for a hotel licence.  They were certainly insufficient to justify a departure from the determination made in the earlier application.

4. Taking these observations into account against what was before the Licensing Court judge in this case and the findings he made, there are no proper grounds for this Court to interfere.  The Licensing Court judge rejected the case sought to be made out.  Nothing of importance could be said to have been overlooked in the earlier application.  The objections taken in the various grounds of appeal are not made out.  We therefore dismiss this appeal.  The appellant is to pay the respondent’s costs.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

1. (1987) 46 SASR 205 at 207, 208 - 209, 219 - 220

2. (1987) 46 SASR 205

3. see (1987) 46 SASR 205 at 208

4. (1987) 46 SASR 205 at 220

5. [1999] SASC 512 at [15], [17]

6. (1998) 71 SASR 402 at 404 ‑ 405