Executive Director, Public Health v Highmoon Pty Ltd - [2002] WASCA 77

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: EXECUTIVE DIRECTOR, PUBLIC HEALTH -v- HIGHMOON PTY LTD & ORS [2002] WASCA 77

CORAM: ANDERSON J
STEYTLER J
WHEELER J

HEARD: 8 FEBRUARY 2002

DELIVERED : 8 APRIL 2002

FILE NO/S: FUL 120 of 2001

BETWEEN: EXECUTIVE DIRECTOR, PUBLIC HEALTH
Appellant
AND
HIGHMOON PTY LTD
First Respondent
MARNI HOLDINGS PTY LTD
Second Respondent
REBEL ENTERTAINMENT PTY LTD
Third Respondent
LOGANBAY PTY LTD
Fourth Respondent
PENZANCE PTY LTD
Fifth Respondent
EXPLORER CRUISE LINES PTY LTD
Sixth Respondent
CHB CHARTERS PTY LTD
Seventh Respondent
PELWORTH PTY LTD
Eighth Respondent
CABARET OWNERS ASSOCIATION OF WESTERN AUSTRALIA
Ninth Respondent
SALMON POINT HOLDINGS PTY LTD
Tenth Respondent
MAYWOOD HOLDINGS PTY LTD
Eleventh Respondent
MUSICAL INVESTMENTS PTY LTD (ACN 059 601 508)
Twelfth Respondent
PROFLIGATE PTY LTD
Thirteenth Respondent
STEPHANIE DEVANEY
PETER QUINBY
Fourteenth Respondents
D F WILSON
C R MCIVOR
Fifteenth Respondents

Catchwords:

Liquor licensing - Tavern licence - Application for special facility licence in Northbridge - Extended trading hours - Evidence of likelihood of harm and ill‑health if licence granted - Expertise of specialist Tribunal - Appeal dismissed

Liquor Licensing - Tavern licence - Application for special facility licence - Whether existing tavern licence with extended trading permit reasonably adequate - Tourist attraction or facility to enhance State tourism industry in affected area - Turns on own facts

Legislation:

Liquor Licensing Act 1988, s 3(1), s 5(1)(b), s 41(1)(a), s 46(2), s 60(4)(g), s 69(8)(a)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     Mr G T W Tannin & Mr S J Wright
First Respondent           :     Mr R L Le Miere QC & Mr J B Prior
Second Respondent      :     No appearance
Third Respondent          :     No appearance
Fourth Respondent        :     No appearance
Fifth Respondent           :     No appearance
Sixth Respondent          :     No appearance
Seventh Respondent      :     No appearance
Eighth Respondent        :     No appearance
Ninth Respondent          :     No appearance
Tenth Respondent         :     No appearance
Eleventh Respondent     :     No appearance
Twelfth Respondent      :     No appearance
Thirteenth Respondent    :     No appearance
Fourteenth Respondents :     No appearance
Fifteenth Respondents    :     No appearance

Solicitors:

Appellant:     State Crown Solicitor
First Respondent           :     John Prior
Second Respondent      :     No appearance
Third Respondent          :     No appearance
Fourth Respondent        :     No appearance
Fifth Respondent           :     No appearance
Sixth Respondent          :     No appearance
Seventh Respondent      :     No appearance
Eighth Respondent        :     No appearance
Ninth Respondent          :     No appearance
Tenth Respondent         :     No appearance
Eleventh Respondent     :     No appearance
Twelfth Respondent      :     No appearance
Thirteenth Respondent    :     No appearance
Fourteenth Respondents :     No appearance
Fifteenth Respondents    :     No appearance

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

Executive Director of Public Health v Lily Creek International Pty Ltd (2000) 22 WAR 510 (Lily Creek No 1)
Executive Director of Public Health v Lily Creek International Pty Ltd [2001] WASCA 410 (Lily Creek No 2)
Rintag Pty Ltd v West Coast Hospitality Pty Ltd, unreported; FCt SCt of WA; Library No 990194; 20 April 1999
Western Australian Hotels Association (Inc) v Mad Dog Mexican Co Pty Ltd [1999] WASCA 149

Case(s) also cited:

Interlego AG v Croner Trading Pty Ltd (1992) 111 ALR 577
Lilly Creek International Pty Ltd v Sayer [2001] WALLC 4
Liquor Stores Association of WA v Manya Holdings Pty Ltd [2000] WASCA 21
Palace Securities Pty Ltd v Director of Liquor Licensing (1992) 7 WAR 241

ANDERSON J: I have had the advantage of reading in draft the judgment of Wheeler J and entirely agree with it. There is nothing which I can usefully add.
STEYTLER J: I have had the advantage of reading the reasons for decision of Wheeler J. I agree with them. There is nothing I wish to add.
WHEELER J:

Background

The first respondent is the holder of a tavern licence in respect of premises called "The Mustang Bar" in Northbridge. By application dated 14 September 2000, it applied for a special facility licence under s 46 of the Liquor Licensing Act 1988 ("the Act") in respect of those premises. That application was allowed by the Liquor Licensing Court ("the LLC") on 2 July 2001. The appellant, who intervened in the proceedings before the LLC pursuant to s 69(8)(a) of the Act, appeals to this Court against the decision to grant the special facility licence.
A tavern licence is defined in s 3(1) of the Act as an hotel licence of the kind referred to in s 41(1)(a). That is, it is an hotel licence not subject to a condition that residential accommodation be provided for any person. During permitted hours, the licensee of such premises is authorised to keep open the licensed premises, or part of them, and while the premises are open is required both to sell liquor on the premises to any person for consumption on the premises and, unless the licence is an hotel restricted licence, to sell packaged liquor on and from the premises to any person.
Pursuant to s 60(4)(g) of the Act, an extended trading permit may be issued which authorises the licensee to sell liquor at hours which would not otherwise be permitted hours. The premises presently have an extended trading permit which permits the sale and supply of liquor for consumption on the premises during the hours Monday to Saturday 12 midnight to 1 am the following morning. It was not in dispute that the first respondent had sought, and had been refused, an extended trading permit which would have permitted a further extension of those hours into the mornings following Friday and Saturday nights and on Sunday nights.
Although there was some dispute at trial about the uniqueness of the premises, the finding of the LLC, which is not challenged, was that the premises were centred around a distinctive American style "theme". As

proposed by the first respondent, the proposed trading conditions for the special facility licence would have been as follows:
"1.The name, decor and the displaying of memorabilia is at all times to reflect distinct USA themes and styles.
2.Food available and identified on menus is to be of the kind that is readily associated with USA style bar food and meals.
3.Beverage products available must include a wide range of USA beers, spirits and wines.
4.Live entertainment (not including the playing of recorded music) must regularly include USA style music such as American Country & Western, Rock'n Roll, Rock‑a‑Billy and Big Band Swing.
5.USA sporting events such as gridiron football, baseball and basketball are to be regularly telecast on the licensed premises on large screen monitors.
6.Trading hours:
Monday – Thursday 6.00a.m. to 1.00a.m. (following morning)
Friday – Saturday 6.00a.m. to 3.00a.m. (following morning)
Sunday6a.m. to 12.00 midnight."

Findings by the LLC which are not challenged on this appeal included findings that the Mustang Bar premises are a tourist attraction or a facility which enhances the State's tourist industry in the affected area (being an area within three kilometres from the premises, and that a significant section of the public resorting to the affected area had a subjective requirement for liquor and related services such as the regular live entertainment proposed to be provided at the premises, and that it was reasonable to infer that customers of the premises have a requirement for the food service available. There was also an unchallenged finding that those subjective requirements are objectively reasonable.

The grounds of appeal

There are essentially two grounds of appeal. The first is that the learned Judge erred in law in finding that the first respondent's existing tavern licence was not reasonably adequate within the meaning of s 46(2) of the Act. The second is that he erred in determining the application "without proper regard to the governing primary object contained in s 5(1)(b) of the Act", which complaint is particularised in a variety of ways within the grounds as they originally appeared and in further particulars contained in a minute of proposed amended notice of appeal in respect of which leave to amend was granted at the hearing of this appeal.

Ground 2

In relation to this ground, the appellant asserts that the relevant errors of law can be grouped under three headings.
First, it is submitted that the court only had regard to the likelihood of an increase in the risk of harm, while it should have considered that even a small increase in trading hours and alcohol consumption would be inconsistent with the primary objects of the Act. I do not understand the appellant to be suggesting that in every case an increase in alcohol consumption, even if small, would be inconsistent with the primary objects of the Act. 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."
The basis of this submission must therefore be that in the context of this case, against the background of whatever harm or ill‑health was already occurring as a result of existing licences in the affected area, the overall likelihood of harm and ill‑health if the licence were granted, would be such that the court, having regard to the objects of the Act, could not form the view that the application could be granted. That this is the intention of the submission is made clear by reference to certain observations which I made in Executive Director of Public Health v Lily Creek International Pty Ltd [2001] WASCA 410 (Lily Creek No 2) at [58] to [60].
It is to be noted that I observed in Lily Creek (No 2) that in the majority of cases, the distinction between considering what increase may result in the level of harm, and assessing the likely level of harm resulting from a licence against the background of whatever may be proved about existing levels of harm, is unlikely to be significant. It was of importance in Lily Creek (No 2) because the undisputed evidence in that case was that the level of alcohol‑related harm and ill‑health in the community in question was significantly higher than the average level of such harm in the Western Australian community generally. Unless there is evidence which indicates that existing levels of alcohol‑related harm in a particular area are in some way different from those existing in the general community, the mere fact that the court appears to be concerned only with the likely increase in any levels of harm or ill‑health will not demonstrate any error.
In this case, the evidence in relation to existing levels of alcohol‑related harm, which was referred to in some detail by the learned Licensing Court Judge, came from residents and owners of businesses in the Northbridge area who complained of disorderly and anti‑social behaviour by intoxicated people in the streets of Northbridge late at night and early in the morning. However, there was also evidence in this case that there were in the Northbridge area already a very large number of licensed premises of various types, with different trading hours. There was evidence that a significant number of patrons of this facility went to other premises with later closing times once the Mustang Bar had closed for the evening. There was therefore the potential for only a relatively small number of additional patrons to remain in the Northbridge area consuming more alcohol and contributing to the problems which I have described, if the Mustang Bar were permitted to remain open for the longer hours sought. Against the background of behaviour which, while no doubt very distressing for those residents affected, could be described as at the lower level of alcohol‑related harm, I am not persuaded that there was any error in the Judge's focus upon what the likely increase in such harm might be. It would be preferable if, in such a case, the existing level of harm was specifically identified, and the likely degree of harm to result from the grant of the licence expressly assessed against that existing degree of harm, as I suggested in Lily Creek (No 2). However, it seems to me that this is a case in which the distinction is not of practical significance.
There was also evidence before the LLC in the form of a report produced in May 1997 which evaluated the public health and safety impact of extended trading permits for Perth hotels and nightclubs. The conclusions of that report were: that extended trading hours of licensed premises resulted in a small increase in the community's consumption of alcohol; that there was "strong evidence" that extended trading resulted in an increase in levels of assault offences; that there was "suggestive" evidence that extended trading "limited the effectiveness" of strategies to combat drink driving; and that trading past midnight increased the proportions of road crashes and assaults occurring early in the morning, with consequential problems for emergency and police services which were "over‑stretched" at that time. Although he did not refer to every finding, the learned Judge referred to that report and summarised its broad conclusions. In the light of that evidence, the learned Judge found:
"In considering the likelihood of increased harm in this case, it is relevant that these premises are trading currently under the grant of the application would result in a total of four hours extended trading in each week. There must always be a possibility of harm occurring from the sale and consumption of liquor but the evidence and circumstances of this application suggest that the likelihood of increased risk of harm is very limited. In considering the merits of the application as [a] whole as I have explained them, I do not think that very limited likelihood is sufficient to warrant the refusal of the application in the public interest."
The reference to a total of four hours extended trading is conceded to be an error, but it is not as I understand it suggested that this error is of significance.
It is apparent that the Judge considered that a potential increase in consumption, and potential problems resulting from assaults and from road crashes were all relevant matters for him to take into account. He also noted that these premises were trading currently; not only that, but they were of course already the subject of an extended trading permit. There were already, as I have noted, many other premises with later trading hours to which patrons of the Mustang Bar could, and did, resort. None of the authors of the report was called to give evidence as to the implications of their research, which dealt with the central metropolitan area generally, in the particular circumstances of this case. It was therefore extremely difficult to predict what, if anything, would be the effect of the grant of a licence of the kind sought to these particular premises. In those circumstances, it was open to the learned Judge to form the view that in all of the circumstances the increased risk of harm did appear to be limited.
I should mention for the sake of completeness that there was also evidence of concerns expressed by the Noongar Alcohol and Substance Abuse Service, but it is fair to describe this as concern about consumption of alcohol by Aboriginal people in the relevant area generally. The Judge referred to it, but in my view was not required to give it significant weight in the light of evidence that it appeared that the Mustang Bar was a place to which Aboriginal people were not presently attracted.
In connection with the submission relating to the likelihood of alcohol‑related harm, it is also suggested that the LLC should have had regard to the "floodgate" effect which might flow from the granting of this application. It is submitted that it should have considered that if this application were granted, then other applications were likely to follow, which could lead to a general closing at 3 am on Saturday and Sunday mornings. I think it is open to the court to consider a "floodgate" argument in some circumstances. However there would, I think, need to be material before the court suggesting that the grant of one licence must inevitably lead to the grant of many others. In this case, one could see a number of reasons why there might not be a "floodgate" effect. For example, the facility was considered by the court to be a distinctive type of facility with a distinctive theme; and there were other premises in the area with extended trading, so that at some point one could see other applications failing on the basis that any public requirement for additional late night premises was not objectively reasonable. The relevance of an argument of this type is in my view a matter which is well within the expertise of the specialist tribunal and I see no error in the failure to accept it in this case.
The second error of law which is alleged by the appellant is that there was "no evidence" for the court's conclusion that the likelihood of increased risk of harm is very limited. A reading of the submissions suggests to me that this is based upon a misunderstanding of what the court intended to convey by that expression. It seems clear enough that the court accepted that there was an increased risk of harm. The conclusion that the risk was "very limited" was intended, in my view, to convey that such risk as there was would be likely to result in only a very limited effect on the levels of alcohol‑related harm arising from premises in the relevant area. This conclusion, for the reasons which I have already given, appears to me to have been one which was open on the evidence.
The third limb of the submission in relation to this ground of appeal is to the effect that the LLC dismissed the expert opinion dealing with the risk of harm "by reference to considerations which are unspecified or which do not in any way detract from the expert's conclusion." (The expression in the submission is taken from Lily Creek (No 2) at [56]). However, it appears to me that the court accepted the expert evidence, for what it was worth. The application of that evidence to the particular circumstances of this case was not free from difficulty. In relation to this limb of ground 1, the submissions made by the appellant were really to the effect that the learned Judge misunderstood portions of the report and misread some of its conclusions. Even if that were so, the error made by the Judge would be an error of fact, rather than one of law. Assuming, without deciding, that a decision which is wholly "unreasonable" may amount to an error of law, the decision of the LLC in relation to this issue was one which, as I have earlier explained, appears as one to have been open to it.

Ground 1

This ground asserts that s 46(2) of the Act precludes the grant of this special facility licence, because it was clear from the Judge's findings that the existing tavern licence would be "reasonably adequate" if there were attached to it an extended trading permit which permitted trading for the additional hours sought. Section 46(2) currently provides:
"A special facility licence shall not be granted where a licence of another class, or the imposition of a condition on a licence of another class, would be reasonably adequate."

Under s 3 of the Act the definition of a "condition" includes:
"(a)a limitation, restriction or prohibition; and
(b)in relation to a licence, any provision of that licence affecting the authorisation conferred,
whether or not it purports to be expressed by way of a condition."
It is convenient to deal first with the basis upon which the learned Judge concluded that the special facility licence should be granted. Having found that the Mustang Bar, because of its "American" theme was a distinctive facility in Perth and that it was a tourist attraction or facility that enhanced the State's tourist industry in the affected area, he considered survey evidence and other evidence suggesting that a significant number of existing patrons of the Mustang Bar would prefer later closing hours. The evidence also suggested that there were no other premises in the vicinity which were considered suitable by those patrons. There was evidence from the Projects and Planning Manager of the Western Australian Tourism Commission to the effect that many tourists expect some sophistication in night life and have an expectation to be able to stay up all night and have a good time if they want to, and that at present the Northbridge area, within which the Mustang Bar is located, did not fully meet those tourist expectations. This witness expressed the view that there were presently very few non‑nightclub style licensed venues in Northbridge operating into the early hours and there was a need for such venues. It is clear that the learned Judge accepted this evidence.
The two matters to which the learned Judge referred in concluding that a licence of another class would not be reasonably adequate in the circumstances of this case were that the Director of Liquor Licensing had refused to grant extended trading permits until 2 am (and, it appeared, would inevitably refuse an application for still later trading), and that the applicant did not wish to sell packaged liquor for consumption off the premises. A tavern licence would not be reasonably adequate therefore, by reason of the limited trading hours and by reason of the fact that a tavern would be required to sell packaged liquor.
The appellant submits that his Honour should have formed the view that a tavern licence with an extended trading permit (and, perhaps, with the imposition of a condition that no packaged liquor be sold during the extended hours) would be reasonably adequate so that s 46(2) would apply. A major difficulty for the appellant is that this argument is foreclosed by two decisions of this Court, unless those decisions can be distinguished or are not followed. The relevant decisions are Rintag Pty Ltd v West Coast Hospitality Pty Ltd, unreported; FCt SCt of WA; Library No 990194; 20 April 1999 and Western Australian Hotels Association (Inc) v Mad Dog Mexican Co Pty Ltd [1999] WASCA 149.
In the first of those decisions Murray J, with whom Kennedy and Pidgeon JJ agreed, dealt with an appeal in which the appellant alleged that what was sought in that case was in truth a more broadly based tavern licence with extended trading hours, and that a special facility licence should not issue in those circumstances. His Honour said:
"In my opinion, regard may not be had to an extended trading permit issued under s 60 for the purpose of considering, pursuant to s 46(2)(a), whether a licence of some class other than a special facility licence would be reasonably adequate for the purpose for which that licence is sought. A permit under the Act is not a licence. Section 60 makes it clear that it is an accretion upon a licence to which the permit relates, the conditions of the permit taking effect as conditions of the licence." (At 9-10).
The decision in Rintag was referred to with approval by Kennedy J with whom Wallwork and Anderson JJ agreed in the Mad Dog case at par [21], although in that case it appeared that a tavern licence would not have been suitable in any event because the type of licence sought by the applicant was one in which the applicant would exercise control over who was admitted to the premises. The appellant in this case submitted that those decisions "should not be followed". As I understood the submission, it was not suggested that those decisions should not be followed because they were so clearly wrong that a later Full Court should depart from them, but rather that they were distinguishable because decided prior to the amendment of the Act by the Liquor Licensing Amendment Act 1998 (No 12 of 1998). Four reasons were advanced for distinguishing those cases.
The first reason why, it is suggested, Rintag and Mad Dog are distinguishable is that the objects of the Act have been amended, so that the objects in s 5(c) and (e) of the Act prior to its amendment, are now subject to the primary objects in s 5(1). The difficulty with this submission is that it says nothing to the question of what is a "licence" for the purpose of s 46 and whether an extended trading permit is to be considered as a licence or not. The amendment does not directly address the observations of Murray J in Rintag at all.
The second, and to my mind most persuasive, of the appellant's arguments is that s 46(2) has been amended by the Amending Act referred to by the insertion of the words "or the imposition of a condition on a licence of another class". It is argued that by virtue of the very broad definition of "condition", those words are apt to describe an extended trading permit. Plainly, an extended trading permit is not a limitation, restriction or prohibition, so as to fall within subpar (a) of the definition of condition, but it is argued that it falls within the expression "any provision of that licence affecting the authorisation conferred" (emphasis supplied). It appears to me that an extended trading permit does "affect" the authorisation conferred by the licence, by permitting trading within hours which would not otherwise be authorised. The conditions of an extended trading permit take effect as conditions of the licence, by reason of s 60(1)(c). However, nothing in those provisions appears to constitute the extended trading permit itself a provision "of that licence" to which it applies. It remains, as it was described in Rintag, "an accretion upon a licence to which the permit relates" although its conditions may by reason of s 60(1)(c) be regarded as conditions of the licence. To take any other view, would appear to me to involve disregarding the words "of that licence", which must be given some effect.
The third reason why it is submitted that those decisions should be distinguished is that any other course would "subvert" the provisions of the Act which provide that there is no appeal from a decision of the Director refusing an extended trading permit. However, in both Rintag and Mad Dog the court considered and rejected the argument that the grant of a special facility licence for trading hours beyond those permitted for a tavern would be a subversion of the provisions of the Act.
The fourth reason submitted for distinguishing those cases is that Parliament has now "confirmed" that the appellant's interpretation correctly reflects its intention. The appellant relies on the Second Reading Speech of the Minister moving the second reading of the Liquor Licensing Amendment Bill 2001. The Bill, which has now become law, replaces s 46(2) with a provision which reads:
"(2)The licensing authority shall not grant a special facility licence if granting or varying a licence of another class, or imposing, varying or cancelling a condition on a licence of another class, or issuing an extended trading permit in respect of another class of licence, would achieve the purposes for which the special facility licence is sought."
Both the explanatory memorandum and the Minister's Second Reading Speech refer to one of the purposes of that Bill as "to clarify that a special facility licence cannot be granted if a licence of another class together with an extended trading permit would achieve the same purpose ...". Interesting questions might arise as to whether one could use the Second Reading Speech, or a subsequent amendment which did not in terms retrospectively declare the meaning of a provision, as affecting the interpretation to be given to a provision existing prior to the speech in question. However, in my view it is not necessary to deal with that issue in this case. Neither the explanatory memorandum nor the speech explain whether the need to "clarify" this issue arose because the position as reflected in the 2001 amendment had always been Parliament's intention, or because the question had never been adverted to, or for some other reason. In my view, Rintag and Mad Dog are not relevantly distinguishable.
The respondent submits that a tavern licence with an extended trading permit would not be reasonably adequate in any event for three reasons:
•that it does not carry with it the security offered by a licence;
•that a tavern licensee is obliged to sell packaged liquor off the premises, while the respondent does not wish to do so; and
•that a tavern licence requires no provision of food or live entertainment while the respondent proposes that certain conditions in relation to food and entertainment should be imposed.
It is not necessary to consider this question, because of the conclusion I have reached about the applicability of Rintag and Mad Dog. However, I would observe that there appear to be some difficulties with the respondent's submission.
As to the last of the reasons advanced, it is not clear to me why those conditions could not be conditions of an extended trading permit, and they do not appear to have been matters which were considered to be relevant by the learned Judge below. So far as the other two reasons are concerned, I note that the learned Judge referred to the packaged liquor issue but not to the security or otherwise of an extended trading permit. So far as both of those reasons are concerned, the appellant argues that the words "reasonably adequate" direct attention to the purpose for which the licence is sought; that is, to the requirements of the public or a section of it. In that case, it is submitted, the effects upon an applicant (in terms of lack of security or of being obliged to do something which it does not wish to do) will not, of themselves, render another form of licence inadequate. There may well be something to be said for this submission. It may be that questions of fact and degree arise in each case; for example, in some cases there may be a substantial demand for packaged liquor, the storage and sale of which might have the effect of hindering other purposes which are to be achieved by a licence, although there does not appear to have been any evidence of any such difficulty in the present case. In my view, those questions should be determined in a future case in which they may squarely arise.

Conclusion

It is my view that this appeal should be dismissed.