Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing - [2012] WASC 463

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: AUSTRALIAN LEISURE AND HOSPITALITY GROUP PTY LTD -v- DIRECTOR OF LIQUOR LICENSING [2012] WASC 463

CORAM: HALL J

HEARD: 30 AUGUST 2012

DELIVERED : 30 NOVEMBER 2012

FILE NO/S: GDA 19 of 2011

BETWEEN: AUSTRALIAN LEISURE AND HOSPITALITY GROUP PTY LTD
Appellant
AND
DIRECTOR OF LIQUOR LICENSING
Respondent

ON APPEAL FROM:
Jurisdiction : THE LIQUOR COMMISSION OF WESTERN AUSTRALIA
Coram :DEPUTY CHAIRMAN E WATLING

MEMBER G JOYCE
MEMBER S RAFERTY

File No :LC 47 of 2011

Catchwords:

Liquor licensing - Appeal from Liquor Commission - Question of law - Application for redefinition or alteration of liquor licence - Whether incorporation of a new building was redefinition in the circumstances - Whether new building contiguous - Meaning of contiguous

Legislation:

Liquor Control Act 1988 (WA), s 3, s 5, s 25, s 33, s 38, s 41, s 77, s 80

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr G D Crocket
Respondent: Mr P D Spragg

Solicitors:

Appellant: Cullen Babington Macleod
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

CIC Insurance v Bankstown Football Club [1997] HCA 2; (1997) 187 CLR 384
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280
Executive Director of Public Health v Woolworths Ltd [2002] WASCA 108
Hancock v The Executive Director of Public Health [2008] WASC 224
High Moon Pty Ltd v City of Fremantle [2006] WASCA 21
Minister for Immigration and Citizenship v Shay [2011] FCA 37
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Paradis v The Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Austotel Management Pty Ltd (1991) 8 SR(WA) 65
Re Corcorans Geraldton Beach Hotel; Palmerville Pty Ltd v PNG Hotel Investments Pty Ltd [2001] WALLC 8
Tapp v ALH Group Pty Ltd [2000] SASC 123; (2000) 76 SASR 397
Trensilk Holdings Pty Ltd v Ettamogah Pub (Morley) Pty Ltd [2000] WASCA 254

HALL J:

Introduction

This is an appeal from a decision of the Liquor Commission made on 21 October 2011. The decision of the Commission was to affirm a decision made by a delegate of the Director of Liquor Licensing refusing an application by the appellant for a redefinition of licensed premises operated by the appellant.
The appellant is the operator of licensed premises in Chalgrove Avenue, Rockingham, known as the Leisure Inn, Rockingham. Those premises operate under a hotel licence. The appellant proposed to build an additional building on the land on which the Leisure Inn is built. The new building was intended to accommodate a Dan Murphy's liquor outlet. Rather than seeking a new licence for the liquor store the appellant sought a redefinition of the licensed premises such that the existing hotel licence would be extended to cover the new store.
A delegate of the Director of Liquor Licensing refused the application and the appellant then sought a review of that decision in the Liquor Commission pursuant to s 25(1) of the Liquor Control Act 1988 (WA) (the Act). On such a review the Commission must consider the application on its merits based on the materials that were before the Director or his delegate: Hancock v The Executive Director of Public Health [2008] WASC 224 [53] ‑ [54] (Martin CJ).
Before considering the merits of the application the Commission needed to consider two preliminary issues. They were, first, whether the application constituted a 'redefinition' of licensed premises. Secondly, whether the new building represented an area that was not contiguous with the existing licensed premises. Those two issues arise from the relevant provisions of the Act.
Section 77(4) of the Act provides that:
On application in writing being made by the owner or occupier of the licensed premises, or by the licensee with the consent of the owner and any lessor, the licensing authority may approve -
(a)a proposed alteration of licensed premises; or
(b)unless section 80 applies, the redefinition of the licensed premises as defined in the licence.
Section 77(5a) of the Act provides that:
An application for the alteration or redefinition of licensed premises as defined in a licence that seeks to include in those licensed premises an area that is not contiguous with those licensed premises shall not be approved by the licensing authority unless section 80 applies or the premises -
(a)are entered in the Register of Heritage Places compiled under the Heritage of Western Australia Act 1990; or
(b)are of a prescribed type or class.
As regards the redefinition issue, the Commission concluded that what was proposed was not a redefinition. In this regard, the Commission said:
The application in this instance involves the construction of a new building that at its closest point is 20.75 metres from the existing licensed premises. The building at that closest point is the existing motel units. The application does not involve any change to the buildings constituting the existing licensed premises and as such, as a matter of commonsense the construction of a new building separate to the existing buildings cannot be a redefinition of the licensed premises [11].
As regards the issue of whether the new building was contiguous with the existing licensed premises the Commission referred to a dictionary definition of the word 'contiguous'. The Commission also referred to the second reading speech of the Minister for Racing and Gaming on the introduction of s 77(5a). The Commission then concluded by saying:
The proposed Dan Murphy's store could not be considered contiguous with the existing licensed premises in any way having regard to the ordinary meaning of the word. As stated, the nearest point to the existing licensed premises is 20.85 metres. Further, in considering the Minister's Second Reading Speech and the intent of the legislature, it was the granting of licenses such as that applied for in this instance that led to the enactment of s 77(5a) of the Act, so as to stop satellite outlets from being attached to existing licences. In the Commission's opinion, the proposed Dan Murphys would constitute a satellite outlet by virtue of the distance between the proposed new building in which it would operate and the existing buildings.
The submission that the Leisure Inn Rockingham and Dan Murphys would be linked in a business sense is irrelevant to the determination of this application as the focus of s 77(5a) of the Act is on the physical aspect. In that respect, the buildings do not have a common border or are not next to each other. To the contrary they are separated by a car park and a roadway for the use of patrons within the hotel complex [19] - [20].
It is to be noted that either of the findings on these two issues was sufficient in itself to defeat the appellant's application in the Commission. Accordingly, the appellant must establish an error of law in the way in which the Commission dealt with each of those issues if it is to succeed on this appeal.

Grounds of appeal

The grounds of appeal, as amended, are as follows:
1.(a) The Liquor Commission of Western Australia (Commission) erred in law by misconstruing the meaning of 'contiguous' in section 77(5a) of the Liquor control Act 1988 (Act) as not encompassing, when it does encompass the right under the Act to include a new building or structure on the site of the existing licensed premises.
(b)The Commission erred in law by misconstruing the meaning of redefinition and alteration within Section 77(4) and 77(5) of the Act by wrongly holding a new building separate to the existing buildings cannot constitute a redefinition of licensed premises when Section 77(3)(4) and (5) contemplate for a licence to be redefined so that the premises are varied to so as to be able to include new buildings within licensed premises.
2.The Commission erred in law by misconstruing the meaning of 'contiguous' in Section 77(5a) by wrongly holding:
(a)The proposed new building for its Dan Murphy's packaged liquor facility constituted a satellite outlet, by virtue of its physical distance from the closest licensed building of the licenses premises (being 20.85 metres).
(b)It is 'irrelevant' to a Section 77(5a) application that the new premises are linked to the existing business of a liquor licence.
(c)The (existing) buildings do not have a common border, or are not next to the proposed new building.
(d)A car park and a roadway for the use of patrons within the hotel complex separated the existed buildings from the new facility.
3.The Commission erred in law by failing to take into account and to find, and should have found in accordance with the proper construction of the Act:
(a)Section 41(2)(b) commands the holder of a hotel licence to sell packaged liquor on or from the 'premises' to any person;
(b)Sections 5(1)(c) and 5(2)(a) requires facilitating the use and development of licensed facilities to reflect the diversity of consumer requirements;
(c)Section 33(1) and (2) read with Section 38 require the application to be determined on its merits and having regard to the public interest.
and by applying these provisions to Section 77(5a) it is permissible for the holder of a hotel licence to establish new buildings on a site.
4.The Commission erred in law by misconstruing the meaning of Section 77(5a) of the Act too narrowly, when on a proper construction of the section, the Act manifests an intention for premises, to become licensed premises provided the premises are in close proximity to the approved licensed premises, and are part of the business operation.

Question of law

Section 28 of the Act provides that a party to proceedings before the Commission who is dissatisfied with the decision of the Commission may appeal. In the case of a decision of the Commission constituted by three members, as was the case here, the appeal lies to the Supreme Court on a question of law.
In Paradis v The Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] ‑ [57] Buss JA considered what constituted a question of law for the purposes of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The relevant provision of the SAT Act also uses the phrase 'on a question of law' in regards to appeals. Accordingly, his Honour's comments in Paradis are relevant here:
An appeal 'on a question of law' is narrower than an appeal that merely "involves a question of law". Where an appeal lies 'on a question of law' the subject matter of the appeal is the question or questions of law. If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law. A question of mixed law and fact is not a question of law within s 105(2). See, in the context of s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the observations in TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (Cth) (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 58 ‑ 60 [10] - [18]; Comcare v Etheridge (2006) 149 FCR 522 at 527 [13] - [17]. Section 44(1) of the Administrative Appeals Tribunal Act provides that an appeal from a decision of the Administrative Appeals Tribunal may only be made 'on a question of law'. That provision is not materially different from the provisions of s 105(1) and (2) of the Western Australian Act.
A ground of appeal which asserts that a decision is against the evidence and the weight of the evidence does not raise a question of law. See Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407, where Fox, Deane and Morling JJ said, at 410:
[T]he concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses … An appellant who attacks a conclusion of the [Administrative Appeals Tribunal] because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based.
Also see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ (with whom Brennan J agreed) at 355 ‑ 356; Comcare Australia v Lees (1997) 151 ALR 647 at 652 - 653; Townsend v Minister for Immigration and Multicultural Affairs [2001] FCA 492 at [4] - [7]; Hill v Repatriation Commission (2005) 218 ALR 251 at 268 [92] - [93].
A tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis. See Waterford v Commonwealth (1987) 163 CLR 54 at 77; Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 257 [146].
A ground of appeal that a tribunal has made a finding which is manifestly unreasonable, in the sense that no reasonable tribunal could have made that finding, alleges an error of law. See Federal Commissioner of Taxation v McCabe (1990) 21 ALD 740 at 742.
A ground of appeal that a tribunal has failed to take into account a consideration which, in the circumstances, it was bound to take into account, alleges an error of law. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 - 40. It is not sufficient, however, if the consideration is merely one that may properly be taken into account, or that many persons may have taken into account. See CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 at 183; Walsh v Department of Employment, Education, Training and Youth Affairs (1998) 51 ALD 690 at 692. There is a distinction between failing to take into account relevant considerations which a tribunal is obliged to take into account, on the one hand, and failing to take into account a particular piece of evidence, on the other. In Xie Mian Shen v Minister for Immigration and Ethnic Affairs, unreported; Fed C of A; 9 August 1995, French J said, at 15 - 16:
There is a distinction to be drawn between taking into account relevant considerations and taking into account particular pieces of evidence - Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225. In the present case the primary relevant considerations are those factors which are sufficient or necessary to characterise a person as a refugee for the purposes of the Migration Act 1958 and the provisions of the Convention and Protocol which are incorporated by reference into the Act.
The allegations that the tribunal failed to take into account relevant considerations in this case are, on the face of the application, founded upon the failure of the tribunal to take into account particular pieces of evidence. None of the grounds in this respect is capable of sustaining a case that the tribunal failed to take into account relevant factors [53] - [57].
In High Moon Pty Ltd v City of Fremantle [2006] WASCA 21 Pullin JA noted that an amendment changing the wording of the relevant appeal provision from one that did not allow an appeal unless it 'involved a question of law' to one that referred to appeals not being open 'except upon a question of law' appeared to have occurred in order to exclude appeals being brought on a mixed question of fact and law: [34] ‑ [36].

Ground 1(a) - What does 'contiguous' mean?

This ground asserts that the Commission erred in law by misconstruing the meaning of the word 'contiguous' in s 77(5a) of the Act. In particular, it is said that the Commission erred by construing that section as not encompassing 'the right' under the Act to include a new building or structure on the site of an existing licensed premises.
The first thing that must be said about this ground is that s 77 of the Act does not confer upon any person a right of the type described. What the appellant appears to be asserting is that the Commission adopted an unduly narrow approach in that it only considered the separate nature and proximity of the new building. The appellant suggested that other factors, including common management, should have been taken into account.
The meaning of a statutory provision should be determined by having regard to the words used in the context of the Act as a whole. The objects of an Act, the existing state of the law and the mischief which the statute was intended to remedy are relevant to the interpretation of a provision: CIC Insurance v Bankstown Football Club [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381.
Section 18 of the Interpretation Act 1984 (WA) provides that in the interpretation of a provision of a written law 'a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object'. Section 19(2)(f) of the Interpretation Act permits consideration of a second reading speech in order to confirm that the meaning of the provision is the ordinary meaning or to determine a meaning where the provision is ambiguous or obscure or where the ordinary meaning leads to a result that is manifestly absurd or unreasonable.
There is no definition of 'contiguous' in the Act. In these circumstances, it is appropriate to first have regard to the ordinary meaning of that word.
The Macquarie Dictionary gives the definition of 'contiguous' as '(1) touching; in contact (2) in close proximity without actually touching; hear'. The Shorter Oxford definition is similar: '(1) touching, in contact; adjoining (2) ... (3) loosely neighbouring'.
The Commission noted in its reasons that it was conceded on behalf of the appellant that the proposed liquor store 'was not physically contiguous with the existing licensed premises': [14]. The transcript of proceedings before the Commission shows that counsel for the appellant did not make a concession in those terms. However, counsel did concede that the proposed liquor store was 'physically separated' from the existing licensed premises: (ts 19 ‑ 20).
The Commission did not accept the argument by the appellant that a linkage in a business sense was relevant to determining whether the proposed liquor store was contiguous with the existing licensed premises for the purposes of s 77(5a). See the Commission's decision at [14] and [20].
The word 'contiguous' generally connotes the concept of physical proximity. This is borne out by the dictionary definitions. The suggestion by the appellant that in determining whether buildings are contiguous it is necessary to consider factors which have nothing to do with physical proximity, such as common management, requires that the word be used in a way that is markedly different to its ordinary usage. If it is intended that a word in a statute will be used in a specific way that may not accord with ordinary usage such an intention is generally reflected in a definition in the statute. Absent such a definition, the ordinary meaning should prevail unless there is something in the context to suggest that another meaning is intended: Statutory Interpretation in Australia, Pearce & Geddes, (7th ed) [4.8] and the cases there cited.

The exemptions in s 77(5a) are also consistent with contiguity being used in its ordinary meaning. An application for redefinition or alteration to include an area that is not contiguous cannot be approved unless s 80 applies or the premises are on the heritage register or are of a prescribed class. Section 80 is concerned with temporary redefinitions where premises have been destroyed by fire or the like or are being repaired or rebuilt or are required for public purposes. This is clearly a circumstances in which a physically non‑contiguous building may be appropriate. The heritage exemption is likely included to recognise that there may be limitations on changing the fabric of heritage buildings, such as many hotels. In those circumstances, any plan to add, for example, a bottle shop may require a physically separate building.
The appellant submits that s 77(5a) is concerned with issues of functional integrity. This argument is said to derive from the decisions in Executive Director of Public Health v Woolworths Ltd [2002] WASCA 108 and Tapp v ALH Group Pty Ltd [2000] SASC 123; (2000) 76 SASR 397. Because of the reliance on those cases it will be necessary to consider the issues that arose in each of them.
In Executive Director of Public Health v Woolworths Ltd an application was made to alter or redefine licensed premises in order to extend an existing licence to encompass a drive‑thru bottle shop that was approximately 100 yards from and in a different building to the existing licensed premises. The issue was whether the building of a new building which involved no physical change to the existing licensed premises could come within the words of 'a proposed alteration' or 'redefinition' in s 77(4). The issue of whether the new premises were contiguous did not arise because s 77(5a) was not part of the legislation at the relevant time. Wallwork J gave consideration to the definition of 'premises' as used in s 77(4) and whether that word could include multiple buildings. He held that it could but whether it did in that case depended upon consideration of a range of factors. Wallwork J concluded by saying:
The proposed new bottle shop as a matter of commonsense and ordinary language, is clearly a separate premises from the bottle shop within the shopping centre. The proposal is not a redefinition of any existing premises. It is the creation of a new bottle shop some distance away, without any alteration or redefinition of the existing premises. As counsel for the appellants submitted, the proposal is in no way the altering of the existing premises by them being expanded or contracted. The new bottle shop is not part of the same licensed premises. It could not be an alteration to them or a redefinition of them. The new liquor store is proposed to be constructed approximately 100 metres away from the existing premises. Nothing is to be done to alter the existing store [15].
As can be seen, the appellant's reliance upon the Woolworths case in support of its suggested interpretation of the word 'contiguous' in s 77(5a) is misconceived. That subsection was not considered. The fact that a range of factors may be relevant in determining whether different buildings on the same land could be part of the same premises turned upon a different question; that is, the definition of the word 'premises'.
In Tapp the licensee made an application under similar South Australian legislation to redefine licensed premises to include a separate walk‑in bottle shop that was located in a nearby shopping centre. The distance from the proposed retail shop to the nearest land boundary of the licensed premises was approximately 70 metres. In between the proposed retail liquor shop and the licenses premises was a large supermarket forming part of the shopping centre. The issue in that case was, again, whether two separate functional units could form part of the same premises. This depended upon the meaning of the word 'premises' in the context of the South Australian Act. In that regard Bleby J with whom Doyle CJ and Debelle J agreed, said:
The dictionary definition does not necessarily require common ownership but it does require an identifiable connection between the several components of the premises. Usually that will be a connection of a physical or visible type. If premises are on separately owned pieces of land they will usually be on adjoining or contiguous land. To come within the commonly understood definition they require some physical or functional unity or integrity. If there is some substantial permanent physical barrier or fence separating two buildings or groups of buildings or if buildings are used for quite different purposes even though the land is contiguous they may well not be described as comprising the same premises even where the land may be in common ownership [19].
As in the Woolworths case what was under consideration in Tapp was the question of what could constitute premises rather than the word 'contiguous' when used in a statutory context. There was no suggestion in Tapp of an equivalent provision to s 77(5a). It is clear from the above quote from Bleby J that insofar as he considered the concept of whether buildings or land were contiguous, he used that word to refer to physical proximity.
Notwithstanding that no statutory requirement of contiguity was under consideration in Tapp the application nonetheless failed because the court was of the view that the two buildings concerned could not be viewed as comprising the same premises. Bleby J said:
The two areas are physically separated by other buildings. The proposed components plainly lack that degree of integrity such that one could describe them as comprising the same premises. To grant the application would be tantamount to granting a fresh licence in respect of new premises for the proposed bottle shop without the licensing authority having to consider the many other factors required to be considered on the granting of such a licence [28].
In my view, neither the Woolworths case nor the Tapp case support the appellant's contention that the word 'contiguous' when used in s 77(5a) is intended to encompass factors other than physical proximity. Indeed, reference to the second reading speech of the Bill which introduced that provision confirms that it was intended to refer to physical proximity.
Section 77(5a) of the Act was inserted by s 6(1) of the Liquor Licensing Amendment Bill 2001 (WA). In the second reading speech the Minister for Racing and Gaming stated that:
The Bill also addresses industry concerns regarding precedent decisions by the Liquor Licensing Court supporting the establishing of non‑contiguous, or what had been described as 'satellite', liquor outlets utilising the provisions of the Act dealing with the alteration or redefinition of licensed premises (Hansard, Legislative Council, Thursday, 9 August 2001 page 2299).
The Minister also said:
The amendments relating to non‑contiguous liquor outlets will clarify the intent of a licensing process, by precluding the approval of an application to alter or redefine the licensed premises when the application seeks to include in the licensed premises an area that is not contiguous with the existing licensed premises (Hansard, Legislative Council, Thursday, 9 August 2001, page 2299).
It is evident that the purpose of s 77(5a) was to prevent physically separate buildings from being incorporated into an existing licence by use of an alteration or redefinition application. The wording of the second reading speech, including use of the word 'satellite', indicates that the issue being addressed was one of physical distance. The word 'satellite' was picked up by the Commission in its reasons.
Contiguity is not, however, necessarily a precise concept. Whether or not different buildings are in fact contiguous may not always be clear. As with many legal concepts it will be a matter of degree to be determined having regard to factors such as physical connection, separating distance, accessibility and positioning.
The Commission did not merely consider the physical distance between the buildings concerned here, it took into account that the buildings do not have a common border and that they are separated by a car park and a roadway. In my view, the suggestion that the Commission erred in its interpretation of s 77(5a) or that it failed to take into account any relevant consideration in regards to the question of whether the new building was contiguous is without merit. In those circumstances, this appeal must fail regardless of the merits of the remaining grounds. That is because if the Commission's conclusion in regard to s 77(5a) was sound then the application could not be approved regardless of its findings in other respects. However, I will consider the remaining grounds.

Ground 1(b) - What do 'alteration' and 'redefinition' mean?

This ground asserts that the Commission erred by misconstruing the meaning of the words 'redefinition' and 'alteration' in s 77(4) and s 77(5) of the Act. In particular, it is said that the Commission erred by wrongly holding that a new building separate to existing buildings cannot be the subject of a redefinition of 'licensed premises'.
The ground does not accurately reflect the findings of the Commission. The Commission did not find that a new building could never be encompassed by a redefinition application. It was not merely the fact that the Dan Murphy's store was to be a new building that was critical to the Commission's conclusion in this regard. It also had regard to the distance between the buildings and that the application did not involve any change to the existing buildings.
It does appear, however, that the Commission confined its consideration in this respect to psychical factors. While I accept that that was appropriate for the purposes of the contiguity question, the issue of whether the licensed premises can be redefined by including a new building is different in nature. In this regard, questions of whether the separate buildings could form part of the same premises and thus be redefined are relevant. Accordingly, a broader range of issues, referred to as 'functional integrity' in Tapp, were relevant. This is confirmed in Trensilk Holdings Pty Ltd v Ettamogah Pub (Morley) Pty Ltd [2000] WASCA 254 [20] by Miller J, with whom Ipp J and Parker J agreed.
It would appear from the Commission's reasons that it only referred to business linkages in relation to the contiguity question. That is, it rejected the relevance of that factor in regards to the question of whether the buildings were contiguous. However, there is no reference to business linkages or functional integrity in the consideration of the redefinition issue.
Of course it does not follow from this that business linkage or functional integrity were not taken into account. The Commission's reasons were comparatively brief and it is important not to approach the reasons of a specialist tribunal with an eye attuned to error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, 287 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 291 (Kirby J).
It may indicate that a consideration has not been taken into account if it was a consideration of such likely significance to the outcome that it would be expected that it would be referred to. In my view, whilst there was some evidence to indicate that there would be business linkages between the operations at the two locations, that was far outweighed by other factors. The size of the new building, that it would be operating under a well‑recognised generic name and in a building separated by a significant distance from the existing premises made the fact that the same licensee intended to operate both parts of comparatively little significance.
As in Tapp, this was clearly a situation where a separate and distinct liquor store was being established by the appellant without an application for a liquor store licence being made. This was in circumstances where the Act makes specific provision for liquor store licences: s 47.
It would clearly be contrary to the objects of the Act if applications for redefinition were permitted in such circumstances. Accordingly, even if the Commission erred by failing to take into account a relevant consideration in respect of the redefinition issue, namely whether there were business linkages between the existing licensed premises and the new building, that error was not material to the outcome. In any event, I am not satisfied that the Commission did fail to take into account that consideration. Furthermore, any error in this regard was immaterial given the outcome in respect of ground 1.

Ground 2

This ground has already been effectively dealt with in respect of the reasons for ground 1(a). It fails for the same reasons.

Ground 3

This ground asserts that the Commission was required to take into account s 41(2)(b), s 5(1)(c), s 5(2)(a), s 33(1) and s 33(2) in construing the Act. What appears to be being suggested is that because there was no specific reference to these provisions the Commission failed to consider them. As I have earlier pointed out such an inference is not necessarily open. Simply because considerations or sections of the Act are not specifically referred to does not mean that they have been overlooked or excluded.
The ground suggests that s 41(2)(b) 'commands the holder of a hotel licence to sell packaged liquor on or from the premises to any person'. That section is said to be relevant because the licence in issue here was a hotel licence and the Commission failed to consider whether the proposed Dan Murphy store would contribute to the proper development of the liquor industry. The argument is somewhat obtuse. What appears to be being suggested is that because the holder of a hotel licence has an obligation to sell packaged liquor the Commission should have taken into account that that obligation could more easily be met by the redefinition of the licence to encompass the new Dan Murphy store.
The difficulty with the appellant's argument is that s 41 was amended on 7 May 2007 by the Liquor and Gaming Legislation Amendment Act 2006 (WA) (Amendment Act). Prior to the amendment s 41(2)(a) stated that the licensee of a hotel licence was 'required' to sell liquor on the premises to any person for consumption on the premises and, unless it was a restricted licence, to sell packaged liquor. That position changed as a result of the Amendment Act and s 41(2) now provides that 'a licensee of a hotel licence may, unless the licence is a small bar licence or hotel restricted licence, sell packaged liquor on and from the premises to any person'. Clearly in light of this, if there was ever an intention to be inferred from the Act, which I doubt, that hotel licensees would sell as much packaged liquor as possible, that interpretation is no longer open.
As regards s 5, this sets out the primary and secondary objects of the Act. In particular, s 5(1)(c) relevantly provides that a primary object of the Act is 'to cater for the requirements of consumers for liquor and related services, with regard to the proper development of the liquor industry'. The other primary objects are to regulate the sale, supply and consumption of liquor and to minimise harm or ill‑health caused to people due to the use of liquor. Section 5(2) provides that the Commission is required to have regard to the primary and secondary objects of the Act in carrying out its functions.
Although s 5 is not expressly referred to in its reasons for decision, it must be assumed in the absence of credible evidence to the contrary that the Commission took all relevant matters into account when determining the application: see Minister for Immigration and Citizenship v Shay [2011] FCA 37 [32] ‑ [36]. The requirement to take the objects into account cannot have been overlooked; they are the underlying principles on which the Commission operates. The implication that the Commission must recite the objects like some formal incantation in every decision it makes cannot be accepted.
Furthermore, the Commission's reasons for decision do not suggest that it did not consider the objects of the Act in determining the application. To the contrary, the Commission's interpretation of s 77(4) and s 77(5a) was consistent with the licensing regime established by the Act.
Section 33 and s 38 incorporate public interest considerations into the decision‑making processes provided for in the Act. Section 38(2) provides:
(1)Subsection (2) applies to -
(a)an application for the grant or removal of a licence; or
(b)an application for a permit of a kind prescribed; or
(c)any other application to which the Director decides it is appropriate for subsection (2) to apply.
(2)An applicant who makes an application to which this subsection applies must satisfy the licensing authority that granting the application is in the public interest.
An application for alteration or redefinition under s 77(4) is not one that falls under s 38(1)(a) or s 38(1)(b). Rather, it falls under s 38(1)(c) and, unless the Director decides to the contrary, such an application will not attract the operation of s 38 of the Act. It did not apply in this case.
Section 33(1) of the Act provides as follows:
Subject to this Act, the licensing authority has an absolute discretion to grant or refuse an application under this Act on any ground, or for any reason, that the licensing authority considers in the public interest.
Although s 33(1) confers on the licensing authority, which includes the Commission, a broad discretion to refuse a s 77(4) application on public interest grounds it does not impose a positive onus on the applicant to satisfy the licensing authority that a grant of an application is in the public interest: Re Austotel Management Pty Ltd (1991) 8 SR(WA) 65 and Re Corcorans Geraldton Beach Hotel; Palmerville Pty Ltd v PNG Hotel Investments Pty Ltd [2001] WALLC 8. There is nothing in the Commission's reasons that suggest that it was unaware of s 33 or, to the extent it was relevant given the nature of the preliminary issues, failed to take it into account.
No error of law has been demonstrated and this ground must fail.

Ground 4

The issues raised by this ground have been dealt with earlier in respect of ground 1. For the same reasons this ground fails.

Conclusion

The appellant's application for an alteration or redefinition of the existing licensed premises under s 77(4) had the effect of avoiding the requirement to satisfy the licensing authority that the grant of the application was in the public interest, which it would have been required to do if it had applied for a separate liquor store licence under s 47 of the Act. Such an effect is contrary to the licensing scheme established by the Act. The Commission's interpretation of s 77(4) and s 77(5a) were, conversely, consistent with the objects of the Act and ensured those objects were not avoided in the circumstances of this case.
In my view, the interpretation of the Commission was clearly correct. No error of law has been demonstrated. All of the grounds have failed. Accordingly, the appeal must be dismissed.