Carleton Investments Pty Ltd v JB Developments Pty Ltd

[2009] SASC 36

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

CARLETON INVESTMENTS PTY LTD v JB DEVELOPMENTS PTY LTD

[2009] SASC 36

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kourakis)

20 February 2009

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE

Appeal - application for permission to appeal in private - permission granted.

Liquor Licensing Act 1997 (SA) s 58, referred to.
Mick Lucas Pty Ltd v Licensing Commissioner (1987) 45 SASR 312; Angas Park Cellars Pty Ltd v Nuriootpa Wine Inn Motel (2000) SASC 130; R v Burgess (1989) 150 LSJS 394, considered.

CARLETON INVESTMENTS PTY LTD v JB DEVELOPMENTS PTY LTD
[2009] SASC 36

Full Court        Gray, Sulan and Kourakis JJ

THE COURT

1. This is an application by an objector for permission to appeal from a decision of the Licensing Court.  The application has been heard in private on the papers by this Court.

2. The Court has considered the proposed notice of appeal, the affidavit in support which exhibits the reasons of the Licensing Court Judge of 23 December 2008.  The application to the Licensing Court was for a retail merchant’s liquor license at the Woodcroft Market Plaza Shopping Centre.  The applicant, Carleton Investments, was one of a number of objectors to the application.  The Licensing Court Judge granted the application.

3. Permission will be granted if the appeal raises a matter of substantial importance and is reasonably arguable.[1] 

   [1]    Mick Lucas Pty Ltd v Licensing Commissioner (1987( 45 SASR 312; Angas Park Cellars Pty Ltd v Nuriootpa Wine Inn Motel (2000) SASC 130; R v Burgess (1989) 150 LSJS 394.

4. The applicant has advanced a number of proposed grounds for appeal which raise mixed questions of law and fact, in particular with reference to the construction and application of section 58 of the Liquor Licensing Act 1997 (SA). That section relevantly 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.

5. It is the view of this Court that a matter of sufficient importance to grant permission to appeal arises in this appeal with respect to the construction and application of section 58(2) of the Liquor Licensing Act.  In these circumstances permission to appeal should be granted as sought.

6. This Court grants permission to appeal.