Carnegies Realty Pty Ltd v Director of Liquor Licensing - [2015] WASC 208

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CARNEGIES REALTY PTY LTD -v- DIRECTOR OF LIQUOR LICENSING [2015] WASC 208

CORAM: ALLANSON J

HEARD: 5 MAY 2015

DELIVERED : 11 JUNE 2015

FILE NO/S: GDA 11 of 2014

MATTER :Liquor Control Act 1988 (WA)
Case Number LC 36/2014 in the Liquor Commission of Western Australia at Perth

BETWEEN: CARNEGIES REALTY PTY LTD
Appellant
AND
DIRECTOR OF LIQUOR LICENSING
EXECUTIVE DIRECTOR, PUBLIC HEALTH
COMMISSIONER OF POLICE
Respondents

ON APPEAL FROM:
Jurisdiction : THE LIQUOR COMMISSION OF WESTERN AUSTRALIA
Coram :MR J FREEMANTLE (CHAIRPERSON)

MS H COGAN (MEMBER)
MR A ZILKENS (MEMBER)

File No :LC 36 of 2014

Catchwords:

Liquor licensing - Refusal of application for an extended trading permit - Failure to determine application in accordance with Liquor Control Act 1988 (WA) - Failure to have regard to relevant considerations - Turns on own facts

Legislation:

Liquor Control Act 1988 (WA), s 5, s 5(1), s 5(1)(b), s 5(1)(c), s 5(2), s 5(3), s 16, s 16(1)(a), s 16(7), s 16(11), s 16(1)(b)(i), s 16(1)(b)(ii), s 25, s 25(5a), s 28, s 28(2), s 33, s 33(1), s 38, s 38(4), s 38(4)(a), s 38(2), s 38(1)(b), s 97(1), s 98
Liquor Control Reform Act 1998 (Vic), s 4(1), s 4(2), s 5(2)(a)
Liquor Control Regulations 1989 (WA), reg 9AB, reg 9F
Liquor Licensing Act 1988 (WA), s 5
Liquor Licensing Amendment Act 1988 (WA)

Result:

Appeal allowed
Decision quashed
Application to be reconsidered by the Liquor Commission

Category: B

Representation:

Counsel:

Appellant: Mr S Vandongen SC
Respondents : Mr B D Nelson

Solicitors:

Appellant: Dwyer Durack
Respondents : State Solicitor for Western Australia

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

Carnegies Realty Pty Ltd & Director of Liquor Licensing (Unreported, LC36/2014)
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Comcare v Etheridge [2006] FCAFC 27; (2006) 227 ALR 75
Director of Liquor Licensing v Kordister Pty Ltd [2011] VSC 207
Executive Director of Public Health v Lily Creek International Pty Ltd [2001] WASCA 410
Executive Director, Public Health v Highmoon Pty Ltd [2002] WASCA 77
Hancock v Executive Director of Public Health [2008] WASC 224
Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21
Kordister Pty Ltd v Director of Liquor Licensing [2012] VSCA 325
Mentink v Minister for Home Affairs [2013] FCAFC 113
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Northbridge Enterprises Pty Ltd v Commissioner of Police [2014] WASC 135
Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320
Palace Securities Pty Ltd v Director of Liquor Licensing (1992) 7 WAR 241
Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154; (2007) 243 ALR 728
Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72
Woolworths Limited v Director of Liquor Licensing [2012] WASC 384
Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227

ALLANSON J: Carnegies Realty Pty Ltd is the licensee of the National Hotel in Fremantle. In July 2013 it applied for an extended trading permit for the premises. The licensing authority, initially a delegate of the Director of Liquor Licensing and, on review, the Liquor Commission of Western Australia, refused the application. Carnegies now appeals from the decision of the Commission.
The three respondents to the appeal intervened in the appeal before the Commission.
The decision of the Commission was published on 17 October 2014. The appeal was commenced by an appeal notice dated 6 November 2014. The grounds of appeal, as amended, were four:
1.The Commission erred in law by failing to apply itself to the real question to be decided, or by misunderstanding the nature of the opinion it was to form.
2.The Commission erred in law:
(a)by taking into account an observation that was purported to have been made but was not in fact made [in an earlier decision of the liquor licensing court]; and
(b)by erroneously applying what was said in a passage in a decision in the Supreme Court of Victoria;
in reaching the conclusion that 'the public interest is best served in the circumstances of this application by refusing it'.
3.The Commission erred in law by failing to give sufficient reasons for concluding that the decision of the delegate of the Director of Liquor Licensing refusing the application for an extended trading permit should be affirmed.
4.The Commission erred in law by failing to take into account a relevant consideration, namely the secondary object in s 5(2)(a) of the Liquor Control Act 1988 (WA).
In these reasons, unless otherwise stated, all references to sections of legislation are to the provisions of the Liquor Control Act 1988 (WA). All references to regulations are to the Liquor Control Regulations 1989 (WA).

The legislation

The Act was passed in 1988 as the Liquor Licensing Act 1988 (WA). Its long title was:
An Act to regulate the sale, supply and consumption of liquor, the use of premises on which liquor is sold, and the services and facilities provided in conjunction with or ancillary to the sale of liquor, to repeal the Liquor Act 1970, and for related matters.
The objects of the Act were set out in s 5. As originally enacted, those objects were:
(a) to regulate, and to contribute to the proper development of, the liquor, hospitality and related industries in the State;
(b) to cater for the requirements of the tourism industry;
(c) to facilitate the use and development of licensed facilities reflecting the diversity of consumer demand;
(d) to provide adequate controls over, and over the persons directly or indirectly involved in, the sale, disposal and consumption of liquor; and
(e) to provide a flexible system, with as little formality or technicality as may be practicable, for the administration of this Act.
The Act was amended from time to time. In 1998, in the Liquor Licensing Amendment Act 1998 (WA), there was a change of emphasis. The words 'to minimise harm or ill-health caused to people, or any group of people due to the use of liquor' were added to the long title. Section 5 was amended to add, as s 5(1):
The primary objects of this Act are
(a) to regulate the sale, supply and consumption of liquor; and
(b) to minimize harm or ill-health caused to people, or any group of people, due to the use of liquor.
The existing objects became s 5(2), preceded by the words:
In carrying out its functions under this Act, the licensing authority shall have regard to the primary objects of this Act and also to the following objects ‑
The effect of these changes to s 5 was described by Wheeler J in Executive Director, Public Health v Highmoon Pty Ltd [2002] WASCA 77 [10]:
It is, as the LLC correctly observed in its decision, necessary to determine the likelihood of harm or ill-health occurring, and to weigh that matter against whatever other objects of the Act which (if any) the court finds may be promoted by the grant of the licence. Although the Act gives primacy to the minimisation of harm or ill-health caused due to the use of liquor, as Ipp J pointed out in Executive Director of Public Health v Lily Creek International Pty Ltd (2000) 22 WAR 510 (Lily Creek No 1) at [20] of his reasons:
'It is significant that the primary object in s 5(1)(b) is to 'minimise' harm or ill-health, not to prevent harm or ill-health absolutely. The word 'minimise' is consistent with the need to weigh and balance all relevant considerations.'
Section 5 was amended again in 2006. There are now three primary objects in s 5(1), and three secondary objects in s 5(2). The licensing authority is to give precedence to the primary objects if it considers that there is any inconsistency between the primary and secondary objects: s 5(3).
The changes to s 5 are significant. The licensing authority is bound to take into account, in determining whether it is satisfied that the granting of an application is 'in the public interest', those factual matters that are relevant to the objects of the Act as set out in s 5(1) and (2): see Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227 [48] ‑ [52]. While the minimisation of harm or ill-health remains a primary object, so too is the object in s 5(1)(c):
to cater for the requirements of consumers for liquor and related services, with regard to the proper development of the liquor industry, the tourism industry and other hospitality industries in the State.
The 2006 amendments also inserted:
(1)sections 98 to 98H, which set out the permitted trading hours for various types of licence; and
(2)pt 4 div 3A, headed 'Responsible practices in selling, supplying and serving liquor'.
Under the Act in its current form, by s 97(1):
Subject to this Act and to any condition imposed by the licensing authority a licensee is authorised to sell liquor during ‑
(a)such of the permitted hours specified in this Division; and
(b)such of the hours that may be specified under an extended trading permit,
as the licensee wishes to do so.
By s 98, hotels are generally permitted to trade:
(a)on a day other than a Sunday ‑ from 6.00 am to midnight;
(b)on a Sunday ‑ from 10.00 am to 10.00 pm;
and on the hours specified in an extended trading permit.
Other classes of licence have different hours. In particular, a night club licence permits trading to midnight and then, except on a Sunday, continuing to 5.00 am on the next day: s 98A.
Extended trading permits, in general, are dealt with in s 60 of the Act. The appellant applied for a permit for the purpose referred to in s 60(4)(g), that is for extended hours, authorising it to sell liquor under the licence at specified hours that would not otherwise be permitted hours. The extended hours sought were until 1.00 am on Wednesday and Thursday, until 2.00 am on Friday and Saturday, and until midnight on Sunday.
In applying for the permit, the appellant was required to satisfy the licensing authority that the granting of the application was in the public interest: s 38(2) (which applies to the application by reasons of s 38(1)(b) and reg 9F). More generally, by s 33:
(1) 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.
(2)An application
(a)may be refused, even if the applicant meets all the requirements of this Act; or
(b)may be granted, even if a valid ground of objection is made out,
but is required to be dealt with on its merits, after such inquiry as the licensing authority thinks fit.
By s 38(4):
(4)Without limiting subsection (2), the matters the licensing authority may have regard to in determining whether granting an application is in the public interest include ‑
(a)the harm or ill-health that might be caused to people, or any group of people, due to the use of liquor; and
(b)the impact on the amenity of the locality in which the licensed premises, or proposed licensed premises are, or are to be, situated; and
(c) whether offence, annoyance, disturbance or inconvenience might be caused to people who reside or work in the vicinity of the licensed premises or proposed licensed premises; and
(d) any other prescribed matter.
Proceedings before the licensing authority are governed by s 16. The licensing authority is to act without undue formality: s 16(1)(a). It may obtain information as to any question that arises for decision in such manner as it thinks fit, and may make its determination on the balance of probabilities: s 16(1)(b)(i) and (ii). The section provides for hearings at which it may receive evidence, submissions and representations. By s 16(7):
The Evidence Act 1906 does not apply to the proceedings of the licensing authority, however constituted, and the licensing authority ‑
(a)is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that the licensing authority adopts those rules, practices or procedures or the regulations make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms; and
(c)is to act as speedily and with as little formality and technicality as is practicable.
Each party must be given a reasonable opportunity to present its case, to inspect any documents to which the licensing authority proposes to have regard in making a determination in the proceedings, and to make submissions in relation to those documents: s 16(11).
In making its decision, the Commission was acting under s 25, which enables a person who is dissatisfied with a decision of the Director to have that decision reviewed: and see s 25(5a) and reg 9AB. The Commission may have regard only to the material that was before the Director.
The proper operation of s 33(1) and s 38 was explained in Woolworths Ltd v Director of Liquor Licensing [46] ‑ [55]. See also Palace Securities Pty Ltd v Director of Liquor Licensing (1992) 7 WAR 241, 249 ‑ 250. In summary:
(1)By s 16, s 30A, s 33 and s 38, the Commission is required to hear and determine the application in accordance with the Act.
(2)By s 38(2), the applicant has to 'satisfy' the Commission that the granting of the application is 'in the public interest'.
(3)The expression 'in the public interest' imports a discretionary value judgment, confined only by the scope and purposes of the statute.
(4)In determining whether it is satisfied that the granting of the application is 'in the public interest', to the extent that those matters arise on the evidence (including notorious facts) before the Commission, the Commission is:
(a)bound to take into account those matters relevant to the objects of the Act; and
(b) entitled to take into account those matters set out in s 38(4).
(5)The Commission's obligation to take into account the public interest in that manner is not diminished by s 33(1). The absolute discretion in that section is subject to the Act. Section 33 does not confer on the Commission an arbitrary or unlimited power, or permit the Commission to grant or refuse an application other than consistently with the objects and other provisions of the Act.
Buss JA continued:
On the proper construction of the Act (in particular s 5(1), s 5(2), s 16(1), s 16(7), s 30A(1), s 33 and s 38(2)), the Commission was obliged to determine the appellant's application in accordance with the evidence (including notorious facts) before it and the criteria imposed by the Act. This statutory duty involves two aspects. First, the Commission must evaluate the evidence before it and make findings and draw conclusions from the evidence, including by inference. An inference is an affirmative conclusion which arises from facts that have been established. Of course, the Commission's fact-finding task extends to the making of findings and the drawing of conclusions, wholly or partly, from notorious facts. Secondly, the Commission must apply the public interest criterion, as I have explained it, to the relevant circumstances, in particular, the findings it has made and the conclusions it has drawn. The Commission was required to undertake the statutory duty by reference to the issues which arose from the application in the context of the relevant provisions of the Act, the evidence (including notorious facts) before the Commission and any submissions made by the appellant, the Director and the objectors [55].

The decision of the Commission

The Commission gave written reasons for its decision: Carnegies Realty Pty Ltd & Director of Liquor Licensing (Unreported, LC36/2014). They are relatively short. After setting out the submissions of the parties, and a brief account of the provisions under which it was acting, the Commission reasoned in this way.
First, it identified the requirement to have regard to the public interest. In doing so, it referred to earlier authority, including the decision at first instance in Woolworths (Woolworths Limited v Director of Liquor Licensing [2012] WASC 384), but not the decision on appeal.
Second, the Commission accepted that the premises would provide an attractive late-night entertainment venue attracting local population and tourists, and meets the requirements of the object of the Act set out in s 5(1)(c) [62]. Although it noted that the applicant's case was that the premises 'will not have the same characteristics and attractions that are commonly associated with antisocial or criminal behaviour', the Commission made no finding regarding the nature of the services to be offered, the conditions under which the applicant would operate the premises, and the particular section of the public which the premises were designed to attract [61].
Third, the Commission referred to the submissions of the interveners regarding the level of alcohol related harm and ill‑health in the Fremantle area, referring in particular to the evidence of hospitalisations and presentations to the emergency department at Fremantle Hospital which attributed alcohol as a major causal factor.
It referred also to the submission on behalf of the appellant that there was no causal relationship identified between either the premises and harm, or even between harm caused by alcohol consumed on licensed premises and consumption elsewhere [65]. It is this submission which provides the context for the following findings.
Fourth, the Commission accepted that a direct causal relationship between the premises and harm or ill-health had not been established. It held, however, that such a causal relationship was not a necessary prerequisite in assessing the impact of the grant of a licence: [66] ‑ [70]. It also found that 'the statistics used by the third intervener are directly relevant to the locality in which the applicant's premises operate' [68].
The Commission then purported to quote from a decision of the Victorian Court of Appeal in Kordister Pty Ltd v Director of Liquor Licensing [2012] VSCA 325. The passage quoted is in fact from the decision at first instance: Director of Liquor Licensing v Kordister Pty Ltd [2011] VSC 207 (Kordister) (Bell J)
… by its very nature, much evidence about harm minimisation will be general and expert in nature. It may be epidemiological or sociological, to name just two of the different disciplines which may be involved. It will not necessarily be evidence relating directly to the particular premises, neighbourhood or locality concerned. It may nonetheless be relevant and admissible, for it may, depending on the circumstances, assist in determining the likelihood that harm is occurring or will occur, the nature of that harm and what contribution can be made to minimising it. Such evidence may be especially important where it is connected by other evidence with the ‘particular local, social, demographic and geographic circumstances’ of the given case. Any other approach to the consideration of such evidence would defeat the statutory objects [186].
At par 70, the Commission also referred to the decision of Wheeler J in Executive Director of Public Health v Lily Creek International Pty Ltd [2001] WASCA 410 (Lily Creek), where her Honour said:
The Act directs attention to the minimisation of alcohol related harm generally (s 5(1)(b)). The relevant question for the Court, in that case, is the level of alcohol related harm, due to the use of liquor, which is likely to result from the grant of an application. This does not mean that only the increased harm which may result from the specific premises in question is to be considered; rather, it seems to me that must necessarily be assessed against any existing harm or ill health so as to assess the overall level which is likely to result if a particular application is granted. Where, as occurs in probably the majority of cases, the existing level of alcohol related harm is no greater than that which appears to be commonly accepted in the community, the distinction is probably not significant. However, where there is already a very high and serious level of alcohol related harm in a community, it may be that the Court would find a relatively small risk of increase in that level of harm to be unacceptable. In other words, it is not the 'risk' of harm in some abstract sense which is relevant, but rather the risk having regard to the proved circumstances of the particular area in relation to which the application is made [59].

The Commission omitted the last sentence in [59], where Wheeler J concluded:
It appears that the learned Judge approached his task without considering the relevance of the existing levels of alcohol-related harms.
The Commission accepted that there is an already high level of alcohol‑related harm in Fremantle and held that 'given a high base level even a small increment in potential or actual harm may be determinative' [71]. The Commission recognised that there was a degree of speculation in making any finding regarding the applicant's belief that it would attract a 'mature and trouble free crowd', as the premises had only recently reopened [72].
Finally the Commission referred to the submission by the appellant, about the conditions imposed on the licence, and the possibility of an extended trading permit with fewer hours, and whether those conditions or fewer hours would sufficiently mitigate the risk [73]- [76]. It held they would not. The Commission concluded:
The Commission has weighted the various positive elements of this application against the likelihood of increased harm and ill health and is of the view that public interest is best served in the circumstances of this application by refusing it. It is also guided in this conclusion by the observation of Greaves J in Highmoon Pty Ltd v City of Fremantle [2004] WLLC 4 that 'it is the consequences of the granting of the licence in a particular location rather than the proposed operation of the premises themselves that is the determining factor in assessing the likelihood of the amenity of the area being diminished'.
Furthermore, in Director of Liquor Licensing v Kordister Pty Ltd [2011] VSC 207 Bell J stated 'the question to be always asked is whether the licensing decision will contribute to minimising harm … even though the particular premises may not be to blame for misuse or abuse of alcohol which has occurred or will be likely [77] ‑ [78].
On that basis it dismissed the review.

The appeal

The appellant, as a party to proceedings before the licensing authority, may appeal under s 28. Because the Commission was constituted by three members, no appeal lies except to the Supreme Court on a question of law: s 28(2).
Although called an appeal in the Act, an appeal from an administrative body confined to a question of law is properly understood as in the nature of judicial review: Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320, 331 ‑ 332 [18]; Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72 [15]; and see Northbridge Enterprises Pty Ltd v Commissioner of Police [2014] WASC 135 [33].
Where an appeal is on a question of law, 'the competency of the appeal … depends on the identification of a question, which is properly characterized as a question of law, as the subject of the appeal': see Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154; (2007) 243 ALR 728 [22]; Comcare v Etheridge [2006] FCAFC 27; (2006) 227 ALR 75. The respondents did not dispute that the proposed grounds constituted an appeal on a question of law, and I agree that each of them is competent.
I will consider the grounds in numerical order, although they were argued by first considering ground 2.

Ground 1

The appellant alleges the Commission failed to apply itself to the real question to be decided, or misunderstood the nature of the opinion it was to form. Grounds 1 and 2 are two aspects of the same allegation of error, and the matters raised in ground 2 are directly relevant. But the complaint in ground 1 is more general.
Counsel for the appellant referred to the reasons of Buss JA in Woolworths [55], where his Honour identified two aspects to the proper determination of an application by the Commission: first, to evaluate the evidence and make findings and draw conclusions from the evidence; and second, to apply the public interest criterion to the relevant circumstances, in particular, the findings it has made and the conclusions it has drawn.
The Commission was required to undertake the statutory duty by reference to the issues which arose from the application in the context of the relevant provisions of the Act, the evidence (including notorious facts) before the Commission and any submissions made by the appellant, the Director and the objectors [55].
In the context of this application, counsel for the appellant submitted the real issues that arose concerned the facts relevant to the object in s 5(1)(b) (to minimise harm or ill‑health caused to people due to the use of liquor), and the closely related factual matter in s 38(4)(a). In order to apply itself to the issues arising in the current application, the Commission was required to make finding about 'the level of alcohol related harm, due to the use of liquor, which is likely to result from the grant of an application'. Counsel submitted that, to properly carry out this task, the Commission was required to:
(1)make findings that specifically identified the existing level of harm and ill-health in the relevant area (Fremantle) due to the use of liquor;
(2)make findings about the likely degree of harm to result from the grant of the application;
(3)assess the likely degree of harm to result from the grant of the application against the existing degree of harm; and
(4)weigh the likely degree of harm, so assessed, together with any other relevant factors to determine whether the appellant had satisfied the commission that it was in the public interest to grant the application.
The submission, in my opinion, should be accepted. In making findings, the Commission was required to address the particular application. This was both at the general level: it was an application for an extended trading permit which is granted subject to conditions and may be cancelled. And at the specific level: the permit was for particular premises, of a particular size or capacity, nature (in this case, including accommodation), location and proposed hours and conditions of operation.
Arguably, the Commission made a finding, although a very general one, that there is a high existing level of harm and ill‑health in Fremantle. It made none of the other findings necessary to carry out the evaluative judgment of whether the application was in the public interest. The conclusion in [77] from weighing the positive elements of the application against the likelihood of increased harm and ill‑health is unsupported by any findings.
The Commission's conclusion is clearly influenced by the decision of Wheeler J in Lily Creek. The use of that decision must be informed by an understanding of the legislation as it then stood, before the amendment of s 5(1) in 2006 (discussed above), and the particular facts. The application was for a hotel licence in Kununurra, entitling the licensee to sell packaged liquor on an unrestricted basis during trading hours. The hotel was located on the Victoria Highway, opposite a major reserve and a gathering area for Aboriginal people. The Executive Director contended and led evidence that enabling Lily Creek to sell packaged liquor to the public would increase the consumption of liquor by Aboriginal communities, and would cause harm or ill-health to members of those communities. The decision of the Full Court was directed to the particular conditions under which the licence should be granted, so that alcohol may be sold but persons would not be able to buy packaged liquor, or drink at the bar and then walk across the highway in an alcohol affected condition.
Lily Creek does not support the approach of the Commission. It is not sufficient to simply reason that, where there is already a high level of harm in the particular area, even a small increment in potential or actual harm may be determinative, without making specific findings on the evidence about the level of alcohol related harm which is likely to result from the grant of the particular application. Those finding about the effect of the particular application must be the basis on which the Commission evaluates what is in the public interest.
To proceed in the way the Commission did in this case is to fail to determine the application before it in accordance with the Act.

Ground 2

This ground alleges two errors in reaching the conclusion that 'the public interest is best served in the circumstances of this application by refusing it'. The first part of the ground refers to the reasons of the Commission at [77]:
The Commission has weighed the various positive elements of this application against the likelihood of increased harm and ill-health and is of the view that public interest is best served in the circumstances of this application by refusing it. It is also guided in this conclusion by the observation of Greaves J in Highmoon Pty Ltd v City of Fremantle [2004] WLLC 4 that 'it is the consequences of the granting of the licence in a particular location rather than the proposed operation of the premises themselves that is the determining factor in assessing the likelihood of the amenity of an area being diminished'.
The appellant submits that it was wrong to take the observation into account.
The words quoted from the decision of the licensing court are not to be found in the decision cited, at least not as quoted. That is of no consequence if the observation is relevant and correctly applied.
It is not immediately apparent why or how the Commission was guided by that observation. The application before the licensing court in Highmoon was to remove a tavern licence to new premises which were about 400 m away. There were objections to the removal on the grounds of effect on amenity. The licensing court found that the residents of the affected area had for some time been unduly affected by the conduct of intoxicated customers of licensed premises in the area [31]; the removal of the licence to the proposed location would introduce 500 to 600 customers to that part of the affected area when the proposed premises were operating to capacity [32]; the likely level of noise from the premises would exceed the assigned noise level in the area [32]; the proposed location was a primary tourism and entertainment precinct and in close proximity to existing designated residential areas [32]; there were 11 Category A licences in that part of the affected area to which it was proposed to remove the licence, and 55 Category A licences in or about the affected area [32]. On the basis of those findings, his Honour accepted a submission made by the objectors that management agreements between the licensee and the City of Fremantle, which were proposed as a way of managing the effect on amenity, were likely to be less effective [34]. He then said:
In reaching this conclusion, I record there is no evidence in this case that should lead the court to conclude that this applicant is likely to conduct the business to be carried on under the licence at these premises other than in accordance with the Act. That, however, is not determinative of the present issue. The principal area of objection, as I have said, is not in the operation of the proposed premises themselves, but in the likely consequences in all the circumstances of the introduction of premises of this size in this location, accommodating the number of persons proposed. Their introduction into this part of the affected area, where there is already existing a large number of Category A licences, is likely to contribute to the undue offence, annoyance, disturbance or inconvenience to residents by intoxicated persons in the vicinity of the premises [35].
The reasoning of the judge was unremarkable, and was firmly grounded in the findings he made about the likely effect of the grant of the application before him. On appeal it was found to raise no question of law: Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21 [66].
The appellant refers to the fact that the Commission cited the decision as identifying the 'determining factor'. That is not what Judge Greaves purported to do. Rather, he rejected that the manner in which the business was likely to be conducted was determinative, and made an assessment on the evidence of the likely consequences of the removal by reference to his findings on the evidence. It is not entirely clear what use the Commission made of the passage it put in quotes.
When an administrative decision‑maker gives reasons, they are meant to inform. They should not be 'scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed': Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 271 ‑ 272. I have considered whether, in the passage complained of, the Commission was intending to say nothing more than that, in assessing the likelihood of increased harm or ill‑health, it is the grant of the permit in that particular location, rather than the proposed operation of the premises, that is the determining factor. Even on that reading, however, the passage at [77] shows error. The Act requires a balancing of the various factors, reflected in the objects of the Act. Any attempt to identify, in the abstract, a determining factor is likely to deflect the Commission from the real question it must address because it is not grounded in particular findings on the evidence about whether the grant of the permit in that location would be in the public interest.
The second aspect of ground 2 relates to the application of what Bell J said in Kordister. The Commission (at [78]) quotes part only of the relevant passage. What Bell J said was:
While compliance by the licensee is a relevant consideration, the question to be asked always is whether the licensing decision will contribute to minimising harm arising from the misuse and abuse of alcohol. The positive benefits arising from the liquor industry, which are reflected in other objects in the legislation, must be weighed in the balance with minimising that harm. Even though the particular premises may not be to blame for misuse and abuse of alcohol which has occurred or will be likely, a decision to vary a licence can be made because, when so balanced, it would positively contribute to minimising that harm [275].
I have underlined that part of the passage relied upon by the Commission. The partial quotation substantially alters the meaning of the passage.
The Commission expressly applied Kordister in giving reasons for the conclusion that the public interest is best served by refusing the application. This reveals that the Commission was asking itself the wrong question.
First, Bell J was addressing a specific argument, set out at [274]: whether in considering specific evidence of violence and anti-social behaviour which had occurred nearby, it would be wrong to hold the hotel responsible for misuse and abuse of alcohol by the ultimate consumer if it had complied with its licence conditions.
Second, in its reliance on Kordister, the Commission does not appear to allow for the different statutory regime in Victoria. The objects of the Liquor Control Reform Act 1998 (Vic) are set out in s 4(1). They include 'to contribute to minimising harm arising from the misuse and abuse of alcohol', but are not confined to minimising harm. By s 4(2), however:
It is the intention of Parliament that every power, authority, discretion, jurisdiction and duty conferred or imposed by this Act must be exercised and performed with due regard to harm minimisation and the risks associated with the misuse and abuse of alcohol.
Bell J held that, without detracting from the importance of the other objects, harm minimisation is the primary object of the reform legislation. Even in that context, in those parts of [275] not quoted, his Honour stated the need to weigh positive benefits arising from the liquor industry, which are reflected in other objects in the legislation, with minimising harm. And see, on appeal, Kordister Pty Ltd v Director of Liquor Licensing [17] ‑ [18] (Warren CJ and Osborn JA).
The selective quotation - excluding reference to the balancing of the other objects of the legislation - suggests that the Commission regarded one of the objects of the Act as the primary consideration in determining whether the application was in the public interest.
I uphold grounds 1 and 2.

Ground 3

The appellant alleges the Commission erred in law by failing to give sufficient reasons.
In Hancock v Executive Director of Public Health [2008] WASC 224 [65] ‑ [74], Martin CJ considered the obligation on the Commission to give reasons for its decisions and the content of those reasons. The appellant contends that the reasons of the Commission reveal that it considered the application was not in the public interest, but not:
(a)the positive aspects of the application that were weighed;
(b) how the Commission reached the conclusion there was a likelihood of increased harm and ill‑health if the application was granted; or
(c)the degree of increased harm or ill‑health that was likely to have resulted if the application was granted.
I accept that the Commission did not make the factual findings necessary to carry out the weighing exercise required by the Act. In my opinion, the reasons of the Commission reveal its reasoning process, but a process that was flawed.
I do not uphold ground 3.

Ground 4

Finally, the appellant contends that the Commission was bound to take into account relevant considerations, including the object provided for in s 5(2)(a), that is, 'to facilitate the use and development of licensed facilities, including their use and development for the performance of live original music, reflecting the diversity of the requirements of consumers in the State'. The development and performance of live original music was not, on the facts, an issue. The use and development of the facilities to meet the diversity of the requirements of consumers was raised on the evidence and part of the appellant's case before the Commission.
The Commission did not specifically refer to s 5(2)(a). The only reference to the secondary objects of the Act is in a quote from the decision of Heenan J at first instance in Woolworths. The Commission did, however, summarise the appellant's submissions, and referred to the appellant's case regarding the renovation to achieve a particular environment, with boutique accommodation, food and entertainment. In stating its conclusion, it referred to various positive elements of the application, without saying what they were.
Various expressions have been used to describe the obligation of a decision maker to have regard to relevant considerations: the duty to give 'proper, genuine and realistic' to relevant considerations is found in several authorities: see Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182 [60]; or the duty of 'active intellectual engagement with the mandatory criteria': Mentink v Minister for Home Affairs [2013] FCAFC 113 [44]. Where there is no express reference, it may still be possible to infer that the consideration was given proper regard. In the present case, the nature of the Commission's reasoning process suggests that it gave primacy to the risk of incremental harm, even though not attributable to particular premises. From the manner in which it stated its conclusions, I believe it more probable that the Commission did not have regard to the secondary objects in s 5(2), which required it to consider the particular application and the consumer requirements it sought to meet.
I would also uphold ground 4. Because of my finding on grounds 1 and 2, it is not necessary to deal with the argument on behalf of the respondents that the error is not material.

On the basis of my findings I would allow the appeal, quash the decision of the Commission, and send the decision back to the Commission for reconsideration.