DRYMAIT Hotels Pty Ltd v Australian Wine & Liquor Wholesalers Pty Ltd - [2005] SASC 424

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
DRYMAIT HOTELS PTY LTD v AUSTRALIAN WINE & LIQUOR WHOLESALERS PTY LTD
Judgment of The Full Court
(The Honourable Acting Chief Justice Perry, The Honourable Justice Bleby and The Honourable Justice Anderson)
11 November 2005
LIQUOR LAW - LICENSING - LICENSING TRIBUNALS GENERALLY - REVIEWS, APPEALS AND CASES STATED
LIQUOR LAW - LICENSING - APPLICATION FOR NEW LICENCE - HEARING OF APPLICATION - MATTERS FOR CONSIDERATION - WHETHER REQUIRED FOR NEEDS OF PUBLIC
Appeal from a decision of an Acting Judge of the Licensing Court granting an application for a retail liquor merchant's licence - whether the Judge erred in finding that s58(2) had been proved and therefore the licence should be granted - respondent conducted a substantial retail business pursuant to a special circumstances licence - whether the Judge failed to consider the existence of the special circumstances licence together with the licenced premises already existing in the locality and whether the public demand was adequately catered for - earlier application in substantially the same locality by a different applicant rejected by the same Judge because existing premises including those of the respondent held to be capable of meeting demand - inconsistency between the decisions - whether Judge in error in placing undue emphasis on the respondent's track record - whether this Court should interfere with the decisions of a specialist Court - Held: test under s58(2) of whether existing premises were inadequate to cater for the public demand not properly satisfied - failure to consider whether public demand in the locality was unmet - error of law disclosed - track record of respondent irrelevant under s58(2) test - appropriate for this Court to interfere - appeal allowed.
Liquor Licensing Act 1997 s40, s53, s58, referred to.
Harding Hotels Pty Ltd v Jatadd Pty Ltd (2001) 81 SASR 222; Lincoln Bottle Shop Pty Ltd v Hamden Hotel Pty Ltd (No 2) (1981) 28 SASR 458; Woolies Liquor Stores Pty Ltd v Carleton Investments Pty Ltd (1998) 73 SASR 6, discussed.
Laval Pty Ltd v Hackham Plaza Investments [2004] SASC 111; Liquorland (Australia) Pty Ltd v Duke Unley Pty Ltd [2004] SASC 113; Angas Park Cellars Pty Ltd v Nuriootpa Vine Inn Hotel Motel Pty Ltd [2002] SASC 302; Blackwood Foodland Pty Ltd v Milne [1971] SASR 403, considered.

DRYMAIT HOTELS PTY LTD v AUSTRALIAN WINE & LIQUOR WHOLESALERS PTY LTD
[2005] SASC 424
Full Court: Perry ACJ, Bleby and Anderson JJ

PERRY ACJ In my view, the appeal should be allowed. I agree substantially with the reasons of Anderson J.
I add a comment as to a statement made in the course of his reasons by the acting Judge of the Licensing Court.
In a passage from his reasons cited by Anderson J, the Judge said:
But for the existence of the applicant’s outlet with its significant retail turnover the existing premises in the locality do not adequately cater for public demand. (Emphasis added)
That finding is indicative of error.
The applicant’s outlet does exist. A finding that, without it, the public demand would not be adequately catered for, does not advance the application.
The question in this case was, given the existence of the applicant’s outlet as it then stood, whether it, together with the licensed premises already existing in the locality, adequately catered for the public demand.
The very terms of the sentence to which I have drawn attention, demand an affirmative answer to that question. Such an answer is fatal to the application.
I agree also that the acting Judge also erred in having regard to the respondent’s “track record”, on the question of satisfaction of the test of need.
However, the “track record” would be relevant, if the test of need had been otherwise satisfied, as to the question of the ability of the applicant to satisfy any unmet demand, and as to any discretionary considerations as to its fitness otherwise to receive the grant of a licence.
I would hear counsel as to the terms of an order allowing the appeal, as it is not clear from the papers whether there has yet been a grant, whether a certificate of approval has been issued under s 59(3) but no licence has yet been granted, and whether the respondent has surrendered its special circumstances licence.

BLEBY J The facts and circumstances giving rise to this appeal are set out in the reasons for judgment of Anderson J. I will not repeat them.
This was an unusual application in that it was by way of alternative to an application to vary the conditions of the applicant’s existing special circumstances licence. It was only after refusing that application that the acting Licensing Court Judge proceeded to consider the application for a retail liquor merchant’s licence, which he then granted.
The applicant’s existing special circumstances licence and the conditions associated with it are the product of the original grant in 1968 of what was then a wholesale storekeeper’s licence and the application to it of two substantial changes in the statutory liquor licensing regime. It is a licence which, by virtue of s 40(2) of the Liquor Licensing Act 1997 is unlikely now to be granted except in unusual circumstances.
The application was also unusual in that it was not a case of an application for a retail liquor merchant’s licence in respect of previously unlicensed premises. It was not a case where, if the licence were granted, the number of licensed premises in the relevant locality would have been increased.
The Judge had “an unqualified discretion” under s 53 of the Liquor Licensing Act to grant or refuse the application. However, the exercise of that discretion is expressed in s 53(1) to be “subject to this Act”. It was therefore subject to the court being satisfied that the requirements of s 58(2) had been met. That sub-section 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.
As has been pointed out by Anderson J, the same Judge on 14 June 2005, had refused an application for a retail liquor merchant’s licence in premises to be known as Erindale Cellars on the ground that the applicant had been unable to discharge the requirement of s 58(2) in respect of the locality which, for all practical purposes, was the same locality of the premises of the present applicant.
It would be most unusual for a court to find that existing licensed premises in the locality did not adequately cater for the public demand for liquor for consumption off the premises where a contrary finding had been made in respect of the same locality less than two months before. Indeed it would be a perverse conclusion if the evidence in the two cases were identical.
The task before the Judge was to determine, in this case, and on the evidence before him, whether the applicant’s existing outlet together with other licensed premises in the locality, adequately catered for the public demand for consumption of liquor off the premises. It may be said that, for all practicable purposes, the evidence of the nature of the other relevant licensed premises and the relevant demographic evidence was the same in the two cases. What was different in this case was the evidence relating to “need” and public demand. The Judge’s conclusion that there was a demand for purchase of liquor in retail quantities in the locality was based on the following findings:
The ‘need’ witnesses called demonstrate that patrons of the applicant are reasonably affluent with a wide and discerning taste in liquor. The demand includes Sunday which is not presently available at this outlet. The demand includes a desire to purchase in quantities of less than six bottles. No doubt they can comfortably meet the present restriction but the issue is whether they should be required to do so. There is a demand for tasting which can be met at the outlet. The patrons of the outlet are kept informed by e-mails and newsletters as to what is available and home deliveries form an important part of the demand being met by the existing outlet. The ‘need’ witnesses called are representative of a demand for the proposed outlet by a significant public.
There was evidence to support those findings in that most of the witnesses complained about the inability to obtain liquor on Sunday from the applicant’s premises and the requirement to purchase, at those premises, not less then 4.5 litres.
The only evidence of that nature led on the Erindale Cellars’ application was from one witness who said he did not go to Skye Cellars because he disliked the requirement of a minimum purchase of six bottles.
There was therefore evidence in this case of a demand which could not be met by Skye Cellars because of the terms of its existing licence. However, that was not the test to be applied by the Judge. The question was whether that demand was adequately catered for by existing licensed premises in the locality, including the premises of the applicant. The Judge’s findings in both the Erindale Cellars’ case and on this application was that that demand could be met by other licensed premises and particularly by the Tower Hotel. There was therefore no justification for reaching a different conclusion in this case from that reached by the Judge in the Erindale Cellars application.
One of the matters to which the Judge gave particular weight was the fact that if the applicant’s outlet did not exist with its already substantial retail turnover, the existing premises in the locality would not adequately cater for public demand. However, as Perry J points out, that is not the appropriate test.
The Judge also placed weight on what he described as the “track record” of the application and the history of its existing licence. He also considered that the only objector in this case, the Tower Hotel, did not need protection from the healthy competition that the grant of a retail liquor merchant’s licence to the applicant would encourage.
While these matters may well go to the exercise of the court’s discretion under s 53(1) of the Act, they are not relevant to the primary question posed by s 58(2). Yet in the Judge’s reasons they seem to have been treated as having equal or even greater weight than whether the demand for packaged liquor in retail quantities was satisfied by other licensed premises in the locality. That constitutes an error of law, given the primary requirement of s 58(2) which must be satisfied before matters of discretion can arise for consideration.
I do not consider that this is a case of inconsistency in the sense discussed in such cases as Laval Pty Ltd v Hackham Plaza Investments[1], Liquorland (Australia) Pty Ltd v Duke Unley Pty Ltd[2], Harding Hotels Pty Ltd v Jatadd Pty Ltd[3], and Angas Park Cellars Pty Ltd v Nuriootpa Vine Inn Hotel Motel Pty Ltd.[4] Those were cases where there were repeated applications within a short space of time for new licences in the same premises where none had previously existed and where the granting of the licence would have increased the number of licensed premises in the relevant locality. Most of those cases contain elements of patching up or attempting to improve on previous applications which had failed in respect of the same premises. This was not such an application. There was evidence led in this case of a demand of a type which was not led in the Erindale Cellars’ case. It showed that there is a demand by a significant group in the community to be able to purchase from Skye Cellars packaged liquor in quantities and at times that they cannot presently do from that outlet. What the Judge on this occasion failed to take into account were his own findings in this and in the Erindale Cellars case that the nature, quality and location of other existing licensed premises in the locality could adequately meet that demand.
[1] [2004] SASC 111.
[2] [2004] SASC 113.
[3] (2001) 81 SASR 222.
[4] [2000] SASC 302.
It follows that the appeal must be allowed, and I would wish to hear counsel as to the nature of any orders that should now be made.
There was no cross-appeal against the Licensing Court’s refusal to accede to the variation in conditions of the existing special circumstances licence. That application was refused by the Judge for reasons advanced by the Liquor Licensing Commissioner. Those reasons, which are set out in full in the Judge’s reasons for decision, are based on the fact that the proposed trading conditions sought by the applicant could be accommodated by the grant of a retail liquor merchant’s licence, a proposition with which the Judge obviously agreed in granting the application for a retail liquor merchant’s licence. Whether that first application would have met the same fate upon a refusal to grant the retail liquor merchant’s licence is not known. I would therefore not regard the fate of any future application to vary the conditions of the existing licence as being foreclosed either by the Judge’s decision or by this decision. Any such application would have to be considered on its own merits but in the knowledge that, at least for the foreseeable future, the applicant is not entitled to a retail liquor merchant’s licence.

ANDERSON J
Background

In this matter the appellant appeals from a decision of an acting Judge of the Licensing Court of South Australia. The decision was delivered on 4 August 2005 and involved an application for a retail liquor merchant’s licence by the respondent for premises known as Skye Cellars at Auldana (“Skye Cellars”). The application was granted.
It was an important part of the appeal to this Court to also consider the reasons for decision delivered by the same acting Judge in an application for a retail liquor merchant’s licence at the Erindale Shopping Centre (“The Erindale Cellars case”). That decision was delivered on 14 June 2005. That application was refused.
The reason why the Erindale Cellars decision had to be considered in this appeal is that one of the main grounds of appeal relied on by the appellant was that the learned acting Judge erred in that he “identified no material change in objective facts or circumstances” since his refusal of a new retail liquor merchant’s licence in the Erindale Cellars case in the same locality in which he decided to grant the licence to Skye Cellars.
The appellant complains that the acting Judge wrongly found that the respondent had satisfied the test set out in s 58(2) of the Liquor Licensing Act 1997. That section states:
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.
Locality
In the Erindale Cellars case his Honour defined the locality as being:
The hills face zone to the east, Greenhill Road to the south, Tusmore Avenue to the west, including its extension across to Magill Road, and Magill Road to the north.
On the basis of that finding, the relevant liquor outlets included within the locality were the Feathers Hotel, Woolworths Liquor at the new Marryatville Shopping Centre and Skye Cellars. Just outside and on the edge of that locality were the Marryatville Hotel and the Tower Hotel. His Honour also thought that other significant outlets near the boundaries of the locality were the Kensington Hotel, Liquorland at Firle, and Dan Murphy’s on Portrush Road, Glenunga.
The site chosen in the Erindale Cellars application had previously been the site of a retail liquor merchant’s licence; however, that licence had been removed some time earlier and relocated to Woolworths at Marryatville.
In the case under appeal his Honour said:
My conclusions and findings in the Erindale Cellars matter decision as to the objective demographic evidence of the general locality will be applicable here.
His Honour went on to say:
I would identify the locality in this matter in much the same way as I did in the Erindale Cellars matter. I would, however, extend it considerably further into the hills face zone both to the northeast and northwest.
With respect to his Honour, that is not a particularly helpful definition of the locality because if it extends in a north-westerly direction as his Honour indicates, I would have thought it must have included the Tower Hotel, which his Honour had placed just outside the locality in the previous decision.
In any event it may not matter because his Honour in both decisions made favourable findings in relation to the retail liquor outlet of the Tower Hotel, and it was clearly a relevant outlet whether in or just outside of the locality. In his decision on Erindale Cellars, his Honour said in relation to the Tower Hotel:
I was very impressed with this outlet on the view. The bottle shop is separate from the drive-in facility. It has an excellent range and the range of wines is clearly labelled as to variety and region. There is a dedicated parking area for people who wish to browse in the wine shop and the wine shop has a separate till.
Respondent’s Existing Licence
At the time of the hearing in the Licensing Court, the respondent held a special circumstances licence in respect of premises at 578 The Parade, Auldana. The application for the retail liquor merchant’s licence was made in respect of those same premises. The application to the Licensing Court was twofold, first, to vary the conditions on the special circumstances licence so that it could operate effectively as a retail liquor merchant’s licence. Those conditions at the time of the hearing required purchases to be made by customers in not less than 4.5 litres, and also that at least 30% of the total gross turnover from the sale of liquor must be derived from the sale of liquor to liquor merchants. In addition, there were no sales on Sundays. Secondly and in the alternative the respondent applied for the retail liquor merchant’s licence which the acting Judge granted.
His Honour described the history of the special circumstances licence, and it is not necessary to go into the detail except to say that the licence grew as various successful applications were made to alter and vary the conditions of the licence over the years.
One of the main complaints made by the “need” witnesses in this case was that they sometimes wanted to buy in lesser quantities than the 4.5 litre minimum requirement under the conditions attached to the special circumstances licence. The licence, operating with the restrictions I have mentioned, has nevertheless proved very successful and has a high turnover. It is clear from a perusal of the exhibits that some of the trade, in fact quite a deal of the trade, comes from customers outside of the locality, no doubt due to the extensive advertising and discounting in which the respondent has engaged.
The passage set out below is instructive of the reasoning which led to his Honour’s decision to grant the licence:
As to the s.58(2) issue the crucial starting point is the fact the applicant has over many years played a significant role in meeting the significant public demand for packaged liquor in the locality. It has built up a loyal following. That such a demand exists and that the applicant is playing a significant part in meeting that demand is put beyond doubt by the retail and wholesale figures appearing in exhibit 3. Obviously, for the purpose of the present decision I must focus on the retail figures. The retail turnover figures are not far behind those of the Tower Hotel (see CONFIDENTIAL exhibit 21). I have no doubt that the retail figures will increase significantly for the applicant if a retail liquor merchant’s licence is granted and its stock is increased by the proposed additional 1,000 lines. Although I do not resile from my views expressed in the Erindale Cellars matter that the Tower Hotel is an excellent outlet, I find however, that both of these outlets are necessary to meet the demand in the locality. But for the existence of the applicant’s outlet with its significant retail turnover the existing premises in the locality do not adequately cater for public demand. In that sense the applicant satisfies the onus under s.58(2) of the Act. The track record of the applicant clearly suggests that there is a need for it to have an unrestricted retail liquor merchant’s licence. It is not enough simply to assert as the objector does that they can get by under the present licence conditions. Because of its excellent track record under the hybrid type licence it is my view that the applicant is entitled to take the next step under the Act by exercising its right to obtain a retail liquor merchant’s licence.

Mr Firth for the appellant argued that the reasoning contained in the passage set out above is not correct and that the learned Judge has entered into areas which, although they might well be relevant to the exercise of a discretion, cannot be used in deciding whether the applicant has passed the s 58(2) test.
I agree with that submission. The track record of the respondent under the special circumstances licence is strictly irrelevant under the s 58(2) test. His Honour says that it is because of that track record that the applicant is entitled to take the next step. This is, in my opinion, an error of law. The applicant has no right to obtain a retail liquor merchant’s licence because of its track record.
The Section 58(2) Test
The test under s 58(2) has been the subject of many decisions by this Court, as has its predecessors under various legislation since 1967. The test has remained more or less as it has always been from the time of Blackwood Foodland Pty Ltd v Milne [1971] SASR 403 and Lincoln Bottle Shop Pty Ltd v Hamden Hotel Pty Ltd (No.2) (1981) 28 SASR 458, albeit with slightly varied wording in the different sections which have applied over the years.
In Lincoln Bottle Shop (No.2) King CJ set out the test under the legislation which originally existed, namely, s 22(2) of the Licensing Act 1967. He said at 460:
Matters of taste, preference and convenience which might be relevant to the test under s.47(a) have no relevance to the test under s.22(2). “The word ‘cannot’ in the sub-section does not denote absolute physical impossibility. A demand for liquor within the locality which can only be met within the locality with extreme difficulty or hardship would be enough”: Tomley Investment Co. Pty. Ltd. v. Victoria (Tapleys Hill) Pty. Ltd. and Flagstaff Hoteld Pty. Ltd. per Bray C.J. at p.587. Mere inconvenience is not enough (Papadopoulos v. The Opal Inn Pty. Ltd. per Bray C.J. at p.351), but, in my opinion, if the liquor of the type demanded by the public is not provided by the existing facilities in a way which makes it available, in a reasonable and realistic sense, to the members of the public requiring it, it can properly be said that the public demand for that type of liquor “cannot be met” by those facilities. (footnotes omitted)
After the present Act was enacted, Doyle CJ summarised the history of earlier legislation in Woolies Liquor Stores Pty Ltd v Carleton Investments Pty Ltd (1998) 73 SASR 6. His Honour said at 10-12:
However, there remains the question of whether the test is the same as before, or whether it is now less stringent.
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.
The other feature of s 58(2) is that the court must consider whether the existing premises “do not adequately cater for the public demand for liquor”. Those words suggest to me that the court is required to consider the accessibility of the existing premises to the public in the locality (matters such as distance, forms of transport available, time taken to get to existing premises and so on); the availability at the existing premises of the range of liquor demanded by the public, the standard of the existing premises and of the service provided there, and the existing shopping patterns and habits of the public to the extent that they bear on the accessibility of the existing premises. There may well be other matters, but these seem to me to be the matters most relevant in considering whether existing premises adequately cater for the public demand for liquor.
However, in deciding whether the existing premises adequately cater for the public demand, the court has to apply some standard. None is indicated by the legislation. I consider that Parliament must have had in mind that the court would consider contemporary standards, using the knowledge and experience that the Licensing Court gains through its work as a specialist court dealing with the liquor industry. By this I mean that the Licensing Court is to apply contemporary standards in deciding what distances one could reasonably expect customers to travel to obtain liquor, in deciding how much time one could reasonably expect them to spend getting to a liquor outlet, in deciding the amount of inconvenience that one could expect them to accept if, as will often be the case, a liquor outlet is not available at the place where they prefer to do most of their shopping, and in deciding the range of liquor and level of service that it is reasonable for them to expect. The court is required to determine not just what the public in the relevant locality want. If, whatever the public may want, there are existing premises that are capable of catering for the public demand for liquor, the court must decide, by reference to contemporary standards, whether, if the public are to satisfy their demand at those premises, it can be said that their demand is adequately catered for.
As was the case under s 22(2) of the Licensing Act and s 38(1) of the 1985 Act, 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.
It is tempting to look for synonyms and substitutes for the statutory standard that existing premises do not adequately cater for the public demand. It is better to resist that temptation, because in the end it is the statutory test that must be applied. In practice, I expect that the outcome in a given case will be pretty much the same as the outcome would have been under the previous legislation. In particular, the matters referred to by King CJ in Lovell v New World Supermarket (at 55-56) will continue to be relevant matters for consideration. But, for better or worse Parliament has changed the statutory language, and it is that language that must be applied.
I have underlined those parts of the reasons of the Chief Justice which in my view have particular relevance to this appeal.
In his assessment of the evidence called to satisfy the onus under s 58(2) of the Act, the learned acting Judge in the case under appeal said:
I find that there is a demand for a retail liquor merchant’s licence in the locality of the applicant. The ‘need’ witnesses called demonstrate that patrons of the applicant are reasonably affluent with a wide and discerning taste in liquor. The demand includes Sunday which is not presently available at this outlet. The demand includes a desire to purchase in quantities of less than six bottles. No doubt they can comfortably meet the present restriction but the issue is whether they should be required to do so. There is a demand for tasting which can be met at the outlet. The patrons of the outlet are kept informed by e-mails and newsletters as to what is available and home deliveries form an important part of the demand being met by the existing outlet. The ‘need’ witnesses called are representative of a demand for the proposed outlet by a significant public.
I have already referred to the fact that his Honour seemed to be influenced to some extent by the history of the licence and the suggested difficulties which customers now have as a result of the history of the licence. He agreed with the proposition that had been put forward by counsel for the respondent in the Licensing Court, namely, that the existing licence is “an historical awkward and impractical hybrid of previous licensing laws”.
The applicant clearly had to satisfy the test under s 58(2) regardless of the background and history of the licence. The learned Judge decided to refuse the application to vary the special circumstances licence but granted the application under appeal. In my view it was an error to look at this application as the final stepping stone to effectively convert a special circumstances licence into a retail liquor merchant’s licence.
In any event, it is my view on the evidence that s 58(2) could not be made out. The simple reason for that was that although there was evidence which showed that there was a demand at the applicant’s site to have a different type of licence, the evidence very clearly demonstrated that that demand was not unmet in the relevant locality. It could be satisfied on the findings of the learned acting Judge by the Tower Hotel’s retail liquor outlet.
The Tower Hotel offered a modern drive-through bottle shop in addition to the self contained and separate walk-in facility described earlier. It provided an extensive range of stock, some 2,709 lines in total, of which 1,503 were bottled wines including a special list of boutique and other premium wines.
The acting Judge did not review the evidence of the “need” witnesses in any detail like he did in the Erindale Cellars case. His only comments regarding the “need” evidence are set out earlier in these reasons.
Mr Costello for the respondent argued that the fact of the existing demand generated by the existing special circumstances licence could not be ignored in assessing whether the test under s 58(2) had been proved. He argued that the evidence supporting the fact that the current trading pattern at Skye Cellars was not satisfactory to the customers was an important factor and it would be wrong to ignore that demand as part of the proof of s 58(2). I agree with that submission in broad terms, but what it again overlooks is the question of whether the demand can be met elsewhere. In the Erindale Cellars case it was found by the learned acting Judge that it could be so met, and it seems artificial to me, just because an existing trading operation applies for a new licence, to vary that conclusion when all other objective evidence remains identical.
It would be very persuasive evidence in a case where there was no alternative supply readily available which could meet the demand. In other words, if the Tower Hotel simply weren’t there, or provided no modern bottle department, and the rest of the evidence remained the same, one could see a strong argument for the fact that s 58(2) had been proved using the same evidence as was led in this case. The simple fact remains that the Tower Hotel is there, it is providing a very good service, the acting Judge was very impressed by the facilities of the Tower Hotel and found in the Erindale Cellars case that it was capable of meeting the demand.
As I have already stressed, the evidence called was not sufficient to pass the s 58(2) test because of the existence of the Tower Hotel which provided a complete answer to any argument based on unmet demand.
Inconsistency
Mr Firth complained about the inconsistency between the two decisions. His complaint was based on the finding about the locality because the circumstances of the locality and the relevant licensed premises both in and nearby to the locality, including the Tower Hotel, had not changed in the seven weeks between the two decisions. Mr Firth referred to various decisions of this Court to justify his argument that this decision could not be supported on the ground of inconsistency. He referred to Laval Pty Ltd v Hackham Plaza Investments [2004] SASC 111, Liquorland (Australia) Pty Ltd v Duke Unley Pty Ltd [2004] SASC 113, Harding Hotels Pty Ltd v Jatadd Pty Ltd (2001) 81 SASR 222, and Angas Park Cellars Pty Ltd v Nuriootpa Vine Inn Hotel Motel Pty Ltd [2000] SASC 302.
Of those decisions Harding Hotels Pty Ltd v Jatadd was an example where a second application by the same applicant, in the same locality at the same site was granted whereas a previous application had failed. It was common ground in that case that in the period of 15 months between the decisions there had been no significant change affecting the public demand for liquor in the locality and the ability of the existing premises to cater for that demand.
Doyle CJ at 227-8 said:
The Licensing Court should be slow to depart from a previous recent decision, if a second application is made for a licence in respect of premises after a refusal of an application. In the ordinary course of things one would expect the Court to grant a second application only if there is good reason to think that there has been a change in the public demand for liquor in the locality, or in the ability of the licensed premises in the locality to cater for that demand. The making of repeated applications, the evidence in support of the applications being adjusted to cover gaps exposed in an earlier decision, is not in the public interest, and is not fair to existing licence holders in the locality. In the present case the second application must have been presented on the basis that the evidence led in the first application did not reliably establish the nature of the public demand for liquor in the locality, and that the evidence in the second application would do so.
There is an obvious danger of an argument like this being used to justify what is no more than the presentation of an improved case, learning from experience. But, in my opinion, it would only be in an extreme situation, if at all, that a trial judge of the Court could refuse to entertain a second application. And the Judge must be mindful that the Licensing Court is dealing with an application for a licence required to meet a public demand, and accordingly is concerned with the public interest, not just with private interests. And it is possible that there will be cases, as this one appears to be, in which the evidence on a second application satisfies the Court that its earlier conclusions as to the nature and extent of the public demand for liquor in the locality were not correct, even though fairly based on evidence previously presented to it.
This was not such a case. The level of the existing trade at the premises and the utilisation of those premises had not altered between the decision in the Erindale Cellars case and this case. Nothing else in the locality had changed. The evidence showed that Skye Cellars together with the Tower Hotel satisfied the demands of the public in both applications. The one new aspect was the evidence of the convenience of purchasing at the one time and place. That is not sufficient in my view to warrant a grant of a new licence and does not satisfy the test under s 58(2). It is what has previously been called “mere convenience”. I refer back to the comments of King CJ in the Lincoln Bottle Shop case and those of Doyle CJ in the Carleton Investments case.
It is my view that Mr Firth’s submission based on inconsistency is supported by the authorities he relies on. As I have indicated, there is no substantial difference in the locality. Whilst the exact locality has not been defined in the case under appeal, very broadly the parameters are known, and it certainly includes the Tower Hotel. In the Erindale Cellars case the Tower Hotel was found to adequately cater for the public demand for off-premises sales. Nothing apparently had changed in relation to that aspect. It is that aspect which the learned Judge does not deal with when he finds that there is a demand at the applicant’s premises. On the findings he makes about the Tower Hotel there is no room for a finding that the demand remains unmet. Section 58(2) simply has not been surmounted by the respondent.
A Specialist Court
Mr Costello relied on the fact that the Licensing Court was a specialist Court, and submitted that this Court should therefore be very reluctant to interfere. That of course is correct. However this Court will interfere where there is an error or errors in the decision making process of the specialist Court. I believe this case has illustrated errors which should be corrected.
Mr Costello pointed to the fact that there can be successful applications for such a licence when a previous application has been unsuccessful. Whilst that is true, it often involves the presentation of a new case with some considerable time elapsing between the two applications, and usually involves a new set of witnesses as in the Harding Hotels case. When, in such a case as the present, the applications are heard so closely in time one must look very carefully to see what are the different features. In this case there are none other than the fact that there is a slightly more extended locality. While that is a relevant consideration, on the facts of this case, for the reasons given, that circumstance did not advance the application.
It was also suggested by Mr Costello that this case was different because this application involved a different site, a different applicant and a different locality. In my view the locality is not significantly different and there is no reason in principle why the reasoning regarding inconsistent decisions should not equally apply to a new applicant at a new site, provided it is within the same locality.
Mr Costello also argued that, whereas in the Erindale Cellars case the possibility of the potential for a proliferation of licenses was a factor, that was not the case here because there was already an existing outlet.
Proliferation of course can sometimes be a factor, which in the exercise of a discretion, could mean the refusal of an application otherwise proved. However a discretionary factor can not be used to get an application over the line.
I would therefore allow the appeal. I agree with Perry ACJ that we should hear from counsel as to what orders are appropriate.