Jre Holdings P/L v Warradale Hotel P/L & Ors No. Scgrg-98-1421 Judgment No. S303

JRE HOLDINGS PTY LTD v WARRADALE HOTEL PTY LTD, MORPHETT ARMS HOTEL PTY LTD & LIQUORLAND (AUSTRALIA) PTY LTD
[1999] SASC 303

Full Court: Olsson, Mullighan and Nyland JJ

OLSSON J I agree that this appeal should be dismissed, for the reasons expressed by Mullighan J.
MULLIGHAN J The appellant trades as the Somerton Liquor Barn at 37-39 Oaklands Road, Somerton Park. It is the holder of a wholesale liquor licence which authorises it to sell liquor on a wholesale basis to other liquor outlets and also to the general public on a restricted basis. The sales to the general public must not exceed ten per centum of its gross turnover and each minimum purchase must be not less than 4.5 litres.
On 16th July 1998 the appellant applied, pursuant to the Liquor Licensing Act 1997 (“the Act”), for a retail liquor merchant’s licence in respect of the same premises. It proposed to trade as Super Cellars Somerton Park opening each day from 8.00 am to 9.00 pm. This type of licence would not impose the two restrictions upon sales to the general public which have been mentioned. The respondents objected to the application. The first respondent operates the Warradale Hotel at Diagonal Road, Warradale. The second respondent operates the Morphett Arms Hotel at Morphett Road, Glengowrie. The third respondent is the holder of a retail liquor merchant’s licence for the business known as Liquorland at Brighton Road, Brighton. Each of these premises is within a 2.6 kilometre radius of the Somerton Liquor Barn.
The application was heard by the Licensing Court of South Australia. The learned Judge, who comprised the Court, refused the application on 2nd October 1998 and the appellant appeals against that decision.
Before considering the various grounds of appeal, it is appropriate to say something about the matters which the learned Judge had to decide and the basis of his decision. S58 of the Act 1997 provide:
“(1).... An applicant for a hotel licence must satisfy the licensing authority by such evidence as it may require that, having regard to the licensed premises already existing in the locality in which the premises or proposed premises to which the application relates are or are to be situated, the licence is necessary in order to provide for the needs of the public in that locality.
(2)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.
(3)A reference to licensed premises already existing in a locality extends to premises in that locality, or premises proposed for that locality, in respect of which a licence is to be granted, or to which a licence is to be removed, under a certificate of approval.”

The licensing authority referred to in the section for present purposes is the Licensing Court: s4 of the Act.

The learned Judge found that the subject premises were appropriate for the intended purpose following alterations in 1996. There was considerable demand for liquor at the premises and customers wanted the restrictions limited so that purchases of less than 4.5 litres could be made.
He then turned to the matters raised by s58(2). He found that the relevant locality was the suburbs of Glenelg, Glenelg South, Somerton Park, North Plympton and Hove but he omitted to mention other parts of the relevant locality to the east, namely Glenelg East, Glengowrie and Warradale. However, this omission in this part of his reasons for judgment is a matter of no consequence. The learned Judge clearly considered the suburbs of Glengowrie and Warradale as part of the locality as that is where the Morphett Arms Hotel and the Warradale Hotel are, respectively, situated. As will be seen, he took the view that these two hotels catered for the public demand for liquor for consumption off licensed premises in the locality.
The learned Judge also found that the population of the locality was in an older age bracket and less mobile than the average for Adelaide, which I assume means the metropolitan area of Adelaide. He accepted that some of the witnesses were representative of the average resident in the locality.
With regard to what he called the “needs” evidence, the learned Judge found that most of the relevant witnesses lived close to the subject premises and within walking distance, and that their preference to purchase their liquor at the Somerton Liquor Barn and their opposition to the volume limit was understandable. He accepted that this was not a case where “range of liquor” was an issue. With few exceptions, the witnesses did not say that they could not get their chosen liquor from other outlets but that there were reasons which they gave for not doing so.
There are liquor outlets at Glenelg and one at Brighton, the premises of the third respondent, sometimes referred to in the evidence as Hove, which the learned Judge accepted, were inadequate for many persons in the locality because of traffic and parking problems. As to the hotels in the locality, the learned Judge said:
“Normally in these cases little time is spent on the liquor facilities of hotels for the simple reason that they are often primitive and offering very little range. That is overwhelmingly not so in this case. They both have very good ranges. They both have drive ins. They both have small but ample walk ins. They do not have significant parking difficulties. I reject some vague suggestions to the contrary.”

The learned Judge was referring to the Morphett Arms Hotel and the Warradale Hotel. He then mentioned the shopping facilities in the locality. He said that there were a number of shopping areas, including some which were close to the hotels. One of the witnesses lived next door to the Morphett Arms Hotel and there is a shopping centre with a carpark next door to the Warradale Hotel. The learned Judge found that the two hotels “are very convenient to a large section of the population”.

On the question of “needs”, the learned Judge observed that the appellant at the Somerton Liquor Barn catered to the needs of the public who were not concerned with the 4.5 litre minimum. He then went on to consider the evidence of each of the witnesses about “needs” and briefly summarised their evidence. The respondents complain about that summary and I return to these complaints shortly.
Having considered all of these matters, the learned Judge refused the application. He said it “falls short”, which obviously means that the learned Judge concluded that the appellant had failed to satisfy him of the matters set out in s58(2). The learned Judge did not see the need to set out in his reasons for judgment much of the evidence upon which he based his decision. In order to appreciate the issues raised by the grounds of appeal, it is necessary to mention the evidence.
Mr Holtham is the manager of Somerton Liquor Barn. The business commenced to operate in September 1996 and grew very quickly. He said that the turnover of the business was about $20,000 per week. According to him, there is an average of 400 customers each week and about five or seven per cent of them do not make purchases because of the volume limit. He said that many of the customers live at Somerton Park and Glengowrie, some at the Masonic Lodge Retirement Village and some at Warradale and in the other suburbs in the area. There are about 500 residents at the Village, some of whom attend the subject premises and make purchases. According to Mr Holtham, some cannot walk unaided and they express concern at the 4.5 litre limit. Some of them do not have assistance to carry a number of bottles of liquor. I interrupt this summary of Mr Holtham’s evidence to mention the point made by the learned Judge, that this problem could easily be overcome by the appellant providing an adequate delivery service. However, he went on to say that this is not a matter upon which the case would be decided.
Mr Holtham also gave evidence about the two hotels. He said that the bottleshop in the Morphett Arms Hotel was mainly an “in and out” beer outlet and it did not serve the purpose of the subject premises. The lanes at the drive-in at that hotel were usually blocked and the facility did not serve the purpose of a bottle shop for his customers in the same way as the subject premises. He said that the Warradale Hotel was much the same and the “wine racks” at both hotels were what he described as “tokenism”. There are also hotels within the locality at Glenelg, namely the Broadway Hotel and the Bay Hotel/Motel. According to Mr Holtham, the take-away liquor facilities at these outlets are inadequate.
There are also liquor stores within the locality at Glenelg, one on the corner of Jetty Road and Brighton Road and another in Jetty Road, which sell wines and presumably most other types of liquor. Mr Holtham said that he did not think the range of wines at those stores compared with the range in the subject premises. Also at Marion Road near Oaklands Road, there is another liquor store which is within the locality. Just outside the locality, there is another liquor store at Ascot Park about 3.3 kilometres from the subject premises. There is another liquor store at Marion Shopping Centre, which is south of the locality at or near Brighton. He said that the liquor store of Liquorland at Brighton did not have a good range of liquor. It did not have older vintage wines and some current popular wines. The point he sought to make is that those other outlets do not satisfy the needs of many customers because they do not provide the same variety and range of products as the appellant’s premises.
According to Mr Holtham, his premises has about 2,500 lines which covers a wide range of products. The break down of sales is about fifty per cent wine, thirty per cent beer and the balance spirits and incidentals. Some customers leave the store when made aware of the 4.5 litre minimum.
The appellant has a limited delivery service from the subject premises. He said that the appellant did cater for elderly persons without motor cars, but it appears from his evidence that the delivery service is limited and has not been advertised for over a year.
Mr O’Brien has lived at Somerton Park for about two years. He does most of his general shopping at the shopping centre next to the Warradale Hotel or the shopping centre near the Holdfast Hotel. He mainly drinks rum and his wife drinks a particular type of wine. He buys liquor at the Somerton Liquor Barn and said that he experiences problems with the volume limit as he usually buys only two bottles of rum at a time. If his wife does not need wine, then he would have to purchase at least 4.5 litres of rum. It seems that this “problem” is easily overcome by his purchasing a cask of wine for his wife when he purchases the rum. He said that he would not go to the liquor outlets at Glenelg because of crowds and parking difficulties. The Morphett Arms Hotel is too far away and out of his way. He did not know of the liquor outlet at Brighton. He said he does not frequent hotels in general and he does not go to the Warradale Hotel because someone was not friendly to him about two years ago. He claimed that some hotels do not stock the type of rum which he buys. It is a well known and commonly available brand and his evidence about that matter must be doubted. The stock lists of the Morphett Arms Hotel and the Warradale Hotel admitted into evidence disclose that this brand of rum is available at those hotels. The stock list of Liquorland at Brighton was also admitted into evidence and reveals that the rum may be purchased at that outlet.
The learned Judge made an incomplete summary of Mr O’Brien’s evidence in his reasons for judgment but there is no reason to suppose that he did not consider his evidence in its entirety. A complaint of the appellant is that he did not mention Mr O’Brien’s attitude to hotels. I do not think that his evidence establishes an aversion to hotels, merely a preference to shop elsewhere.
Mr James has lived at Seaforth Avenue, Somerton Park for about ten years. He does most of his shopping at the Warradale Shopping Centre which is next to the Warradale Hotel. He said that he drinks light beer and brandy. His wife drinks brandy, cask wine occasionally and liqueurs. There is no suggestion that those types of liquor are not available at the Warradale Hotel or at all liquor outlets in the locality. Mr James said he did not purchase liquor from the Warradale Hotel because it is hard to park and the bottle shop is small and not interesting. It seems that he did not know much about that outlet because when he was asked if there is a walk-in area where customers could walk around in the bottle shop, he said, “I think there is but its very small”. He said that he is aware of other liquor outlets in the locality but he goes to the Somerton Liquor Barn because it is handy to him and it has a good range. However, there does not seem to be any reason why the wide range of available liquor would be a matter of importance to him because of the limited type of liquor which he purchases. He said the volume limit posed a problem in the obvious sense that if he wanted to buy less than 4.5 litres, he had to go somewhere else.
However, it is difficult to see that he ever had any problem with that limit because he purchased large quantities of beer every second day for the employees at the place where he worked. He said that he did not go to liquor outlets at Glenelg because of difficulties in parking and there was a traffic problem for him in gaining access to the Liquorland at Brighton caused by traffic lights which, for present purposes, is unnecessary to describe. It is simply a matter of inconvenience. He said that he had an objection to hotel drive-in outlets because they are too fast and the customer cannot pick out what is wanted. The staff are always in a hurry.
The learned Judge said about Mr James:
“... not really bothered by 4.5 litre limit. He too could use the hotel next door to his shopping area which more than adequately could provide for his liquor demand. He could even use the drive-in, avoid the parking problem which I frankly doubt.”

It is true that the learned Judge did not discuss all of his evidence but his failure to do so is of no consequence. Given the type of liquor purchased by Mr James and the quantity and frequency of such purchases, it may be accepted that he preferred to use the Somerton Liquor Barn, but that he could easily have purchased his needs at hotels or other liquor outlets in the locality. The learned Judge said as much about the Warradale Hotel.

Mr Hoskins has lived at the Masonic Lodge Retirement Village for about four and a half years and is aged 85 years. He gave evidence about the residents and some of their needs and activities. There are 240 independent living units. 63 residents live in hostel accommodation and 95 residents live in nursing homes. Of those who live in the units, about ninety per cent of them go out from the Village. There is a bus which takes residents to a shopping centre at Hove which is near to Liquorland at Brighton. There is another retirement village at the corner of Oaklands Road and Diagonal Road which is also within the locality. There are retirement units at Glengowrie. Mr Hoskins said that he knows of three or four residents of the village who buy liquor at the Somerton Liquor Barn which is, apparently, across the road. He purchases his liquor requirements from the Somerton Liquor Barn about once a month. He buys whisky, gin and an occasional bottle of wine and a cask of wine. He does not go to any other liquor outlets. He said that he has a problem with the volume limit if he wants to buy a bottle of wine for a special occasion. He has a motor car and is able to drive. The evidence does not disclose that he could not purchase a bottle of wine at another location although he said that he regarded the hotels in the locality as being too far away and he did not know of other outlets. However, he said that other residents have a problem because they cannot carry multiple bottles very far and the distance between the Somerton Liquor Barn and the Village is too far for most of them. However, Mr Hoskins did say that he goes to the bank at Glenelg or South Brighton once a week and before the Somerton Liquor Barn opened, he purchased liquor from an outlet at Jetty Road, Glenelg.
Any difficulties experienced by residents in carrying liquor from the premises to the Village can easily be resolved by a delivery facility provided by the appellant.
The learned Judge does not appear to have regarded the evidence of Mr Hoskins in a relevant way. He addressed the issue of deliveries but he did not say that this evidence established a need for a liquor supply to the residents. That is a relevant matter but, in my view, is of little significance. Some three or four people, on the evidence, use the facility as well as Mr Hoskins. Obviously, he could satisfy his needs as he did before the subject business commenced. It is simply more convenient for him to go to the appellant’s premises. There was no evidence as to what type of liquor the other residents required or as to the frequency or extent of their purchases. It is not known if the volume limit poses any problems for them other than as disclosed by Mr Hoskins. Also, as will be seen, delivery services are provided by other outlets which should satisfy their requirements.
Mr Ferrier has lived at Warradale for about 15 years. He is an accountant and is employed at the Masonic Retirement Village as the manager of finance and administration. He shops regularly at the shopping centre on Diagonal Road. So far as liquor is concerned, he purchases in small quantities from the Warradale Hotel and in larger quantities from the Somerton Liquor Barn. It is the volume restrictions which causes him to go to the Warradale Hotel. As to that Hotel, he said that it does not have a large selection. It is more geared for the drive-in facility and it is always inconvenient to get out of the car and make a selection of wine, but if that is all that is available, that is what he uses. He said that this hotel had a small selection of wines and the stock did not change very much. He prefers the Somerton Liquor Barn because of what he described as the excellent selection and the rapport he had developed with the manager. He purchases large quantities of liquor from the appellant’s premises for the Village for corporate use which has been convenient for him.
Mr Ferrier said that he would not use the Liquorland outlet on Brighton Road because of traffic at about 5.00 pm when he usually makes his purchases. Parking problems and having to travel further are disincentives to shopping at Jetty Road, Glenelg. According to Mr Ferrier, some residents at the Village consume liquor. Those who purchase liquor usually acquire it at Marion or have it delivered. Some of them make purchases at the Somerton Liquor Barn. He said that those who are spirits and sherry drinkers, do not purchase liquor at those premises because of the volume restrictions. Before the establishment of the appellant’s premises, Mr Ferrier made his purchases at the Warradale Hotel. He said he did not tend to purchase in bulk. He had used the liquor outlet at the corner of Oaklands Road and Marion Road which he agreed had a very good selection of wines and spirits. Those premises are about three kilometres away from either the Village or his home, the evidence does not disclose which of them is that distance away. He acquires his beer by the carton and one or two bottles of wine at a time each week. He buys the wine separately, he goes to the Warradale Hotel and he usually finds what he likes.

On occasions Mr Ferrier and his wife go to Jetty Road, Glenelg and to the Marion Shopping Centre for other types of shopping or banking but he does not use liquor outlets in those locations.
The learned Judge, in his brief summary of Mr Ferrier’s evidence, said that he supported his own view of the elderly which, no doubt, means that he had formed the view that liquor outlets in the locality, apart from the appellant’s premises, were adequate for the residents of the Village. I think that view is correct. No doubt those few residents who are mobile find the Somerton Liquor Barn a convenient place to shop. Perhaps some of them would prefer to purchase small volumes of liquor from these premises but they are able to do so elsewhere. The learned Judge accepted, correctly in my view, that Mr Ferrier is able to acquire everything he wants from other outlets. The learned Judge did not accept his evidence that there was only a small selection of wines at the Warradale Hotel. I think this is a relative expression. The selection at the Warradale Hotel is not as large as some other outlets, including the Somerton Liquor Barn, but it may be seen from the stocklists that the range is not small.
Mr Bailey has lived at Marion for about 10 years. He is a beer drinker and his wife mainly drinks wine from casks. He purchases their supplies from the Somerton Liquor Barn because he passes those premises two to three times a week on the way to visiting a friend. The volume limit is only a problem for him when he wants to buy only one bottle which occurs three or four times a year. On such occasions he goes to another liquor outlet. He said that usually the volume limit at the Somerton Liquor Barn does not pose a problem for him because he buys quantities of beer above that limit. He said he finds the appellant’s premises very convenient for him. He does not shop at the liquor outlet on Jetty Road at Glenelg near Brighton Road because of the traffic and also because of difficulties in parking which causes problems with respect to the other liquor outlet in Jetty Road. He said he had not been to the Liquorland on Brighton Road because he does not go to that vicinity. He does not go to the liquor outlet on Marion Road near the Parkholme Shopping Centre. He is now retired and is not confident in driving. However, that is where his wife does most of the family shopping.
The learned Judge correctly summarised the effect of the evidence of Mr Bailey. Usually the facility at the appellant’s premises is adequate for his purposes because the volume limit seldom poses a problem for him, but he could obtain his supplies near his home at another liquor outlet on Marion Road.
Mr Fassina is the managing director of the appellant which also conducts various liquor outlets in metropolitan Adelaide under the name Super Cellars. The business conducted at Oaklands Road has been operated under various names for over twenty years as a liquor wholesaler with small volumes of cellar door sales. According to Mr Fassina, there has been a steady demand for retail sales at the subject premises and particularly since 1992 when the premises were used as the head office and distribution centre for the various liquor outlets of the appellant. The premises were modified in 1996 with re-organisation of the warehouse and new wine racks. The appellant has kept many vintage wines over the years with the consequence that it has a large stock of aged wines kept at the subject premises and at the various Super Cellars outlets.
The business at those premises has grown considerably. Advertising has stopped so that the 90/10 rule is not infringed. The wholesale turnover is about $13 million and so there may be retail sales of $1.3m without infringing the rule. This evidence is relevant as it establishes demand for the retail outlet at the Somerton Liquor Barn. Mr Fassina also said that the appellant had not given much consideration to deliveries. However, the Ascot Park outlet undertakes a substantial delivery service and any deliveries from the Somerton Liquor Barn may be organised through that outlet. He expressed reservations about deliveries because they are likely to be less than 4.5 litres for most customers. They would want only one bottle or so and Mr Holtham could undertake those deliveries personally if sales of such limited quantities were permitted. However, the Ascot Park outlet, if requested, will deliver such small quantities of liquor. That service is free of charge to the customer.
Mrs Crowhurst has lived at North Brighton for about three and a half years. She works as an accountant in the city. She undertakes her weekly shopping at Glenelg and at Marion and at Diagonal Road near Oaklands Road. She has purchased liquor at the Somerton Liquor Barn on occasions but does not always want to acquire in excess of the volume limit. On those occasions she goes to a hotel drive-in outlet which she says does not always have the range which she would like. However, the Somerton Liquor Barn has a large range which is well displayed. Mrs Crowhurst said she only uses the hotels in the locality when she wants something quickly. She said she had not been to Liquorland at Brighton Road but did use the outlets at Jetty Road, Glenelg on occasions, but parking was often difficult. She agreed that there was nothing stopping her from buying alcohol at this location. She said her practice was only to buy liquor as she needed it. She did not usually require in excess of 4.5 litres at any one time and the volume limit was a restriction for her. Although she works in the City and travels down Anzac Highway by motor car each day, she tends to buy liquor at weekends and consequently does not stop at other outlets in or outside the locality on her way home from work. She told the learned Judge of the type of red wine and the type of white wine which she purchases. The red wine is not shown on the stock list of the Morphett Arms Hotel, the white wine is shown on the stock list of the Warradale Hotel and both wines are shown on the stock list of Liquorland at Brighton. Mrs Crowhurst was not aware that both of these hotels had walk-in bottle shops as well as a drive-in facility. She said that the Somerton Liquor Barn is convenient for her.
The learned Judge concluded that hotels could meet the needs of Mrs Crowhurst and that she could get her supply of liquor on her shopping trips if she so desired. This finding is justified by her evidence except that neither of the two hotels could supply her with both types of wine. It may be accepted that she could obtain her modest supplies whilst shopping at Glenelg.
Mr Hart lives at Somerton Park near Diagonal Road. He undertakes his general shopping in Cliff Street at Glenelg East and Partridge Street at Glenelg. He drinks beer, rum and certain liqueurs and his wife drinks Baileys Irish Cream. He does not drink wine or other spirits. He purchases his liquor supplies at the Somerton Liquor Barn. He buys beer by the carton. He does not go the liquor outlets at Glenelg or Brighton because of lack of parking. He does purchase beer on occasions at drive-in facilities at hotels. He prefers the Somerton Liquor Barn because of the large range, he can take his time in selections and it is close to his home. He acknowledged that he could obtain his supplies from hotels at drive-in facilities but it is easier at the appellant’s premises. He said it was a nuisance to have to buy a minimum of 4.5 litres. Also, he said it was quicker and more convenient to make his purchases at the Somerton Liquor Barn because it is closer to his home and the driving to the hotels is more difficult for him.
He told the learned Judge that he had some traffic difficulties if he went to the Warradale Hotel or the Brighton Hotel but they appear to be little more than inconvenience. When he used to go to the Morphett Arms Hotel, the barman had to service a bar as well as the drive-in bottle shop and always seemed to be in a hurry. He liked to browse and take his time.
He said that it was too inconvenient to go to Liquorland at Brighton and so he did not purchase liquor from that outlet.
The learned Judge did not mention Mr Hart’s evidence in any detail. He found that the hotels could meet his needs and that his wish to acquire his liquor at the appellant’s premises is a matter of convenience. That finding is justified.
Mr Williams has lived at Hove for about seven years and a few kilometres from the Somerton Liquor Barn. His residence is a shorter distance from Liquorland at Brighton. He does his general shopping in that locality. He mainly drinks beer but also red wine from time to time. He said that his main reason for going to the Somerton Liquor Barn is convenience and because of the range of liquor which is available. Some hotels do not have the same range of beers. Also, the selection of wines is extensive. Access by road to the outlet at Brighton is difficult but he acknowledged that the range of liquor at that outlet is sufficient for his purposes. He said that parking problems made the liquor stores at Jetty Road, Glenelg unsuitable. He told the learned Judge that he drinks at the Warradale Hotel but does not purchase liquor to take away because of the limited range, but he said that he had never been into the bottle shop. He did not go to other hotels because the Somerton Liquor Barn is more convenient for him.
The learned Judge found that Mr Williams could shop at Liquorland at Brighton but he accepted that there were problems for him with traffic. He found that he could obtain what he wanted from the Warradale Hotel and was justified in making those findings.
The last of the “demand” witnesses called by the appellant was Mrs Smith. She has lived at Somerton Park for about nine years. She does her general shopping at the shopping centre next to the Warradale Hotel. Her husband drinks beer during summer and they both drink red and white wines, spirits and champagne. They entertain frequently at home. Mostly, they obtain their liquor supplies from the Somerton Liquor Barn because of the wide range of accessibility.
It seems that she does not buy liquor at the Holdfast Hotel because she said it had a limited range. She will not go to the Morphett Arms Hotel because she says the staff are rude. She does not go to the Warradale Hotel because she says the staff are not well-informed. Also, she said, they do not have the brands which she and her husband want to acquire and neither does the Morphett Arms Hotel. Parking and the prices at the Somerton Liquor Barn were better than the other outlets. She said that problems with parking made access to the liquor stores at Jetty Road “impossible”. She does not go to the Liquorland at Brighton because she does not like parking on Brighton Road. When cross-examined, it became readily apparent that Mrs Smith and her husband can purchase what they want at the Morphett Arms Hotel which is very close to their home, although she did claim that at times they are out of stock. It is difficult to see why that evidence should be accepted because she had last been at that hotel about eight to ten months before giving evidence. The learned Judge did not accept that evidence because he found that they had modest demands which could be met at the Morphett Arms Hotel. He accepted that she disliked the staff at that hotel but that this matter was not sufficient to justify a conclusion that it did not adequately cater for their requirements.
It is difficult to obtain an accurate impression of a witness merely from reading a transcript of the evidence, but the manner of answering questions and the position taken by Mrs Smith on occasions appears to justify the conclusion that her evidence should not be accepted in its entirely which is obviously the view taken by the learned Judge.
The respondents called the managers of the Morphett Arms Hotel, the Warradale Hotel and Liquorland at Brighton who are respectively Mr Smyth, Mr Fisher and Mr Davis.
Mr Smyth produced the stock list which reveals that this hotel has a wide variety of liquor for sale including beers, spirits, wines and liqueurs. As may be expected, the range is not as extensive as that of the Somerton Liquor Barn or Liquorland at Brighton but it is nonetheless a large range. Mr Smyth said that the Hotel has over 2,000 lines in stock but it seems that that figure must be reduced because it includes different sizes of bottle of the same product. Mr Smyth said that this hotel advertises in the local Messenger newspaper. The Hotel has a free delivery service to any location between 2.00 pm and 4.00 pm each weekday provided that there is a minimum purchase of $20. There are about 25 to 30 deliveries each week. There are deliveries to the Masonic Retirement Village about six to eight times each fortnight which coincide with the pension week of the residents. He said that the Morphett Arms Hotel was recently upgraded which included the development of the walk-in bottle department, the dimensions of which are about 15 feet by 40 feet. Photographs admitted into evidence depict the bottle section which confirm the impression given by the stock list and reveal a comfortable and reasonably spacious bottle department. There are three car parks designated for persons who want to go into the bottle department and there is also the general car park of the hotel.
According to Mr Smyth, the Hotel employs two full-time staff and six casual staff in this area, all of whom have undertaken a wine appreciation course. The staff participate in wine tasting occasions at the hotel as part of their training. The Hotel is part of a purchasing group with the consequence that the price of various products is discounted. About fifty per cent of sales of the Hotel is beer, thirty per cent wine and twenty per cent spirits and fortified wines.
Mr Fisher has been the manager of the Warradale Hotel for about four years. In the bottle department area, including the drive-in, the Hotel employs about seven staff, two of whom are full-time employees. This Hotel also conducts wine appreciation courses for the staff and there are wine tastings twice a month to assist in their training.
In about March 1998 minor extensions and renovations were carried out in the bottle department, I expect so as to provide more congenial premises for the customers. Five car parking spaces are designated for the bottle department. Mr Fisher said that his hotel also provides a free delivery service. The stock list of the hotel was proved by this witness. He said that in the walk-in bottle department there are about 170 varieties of red wine and about 160 varieties of white wine. Discounts are available as the Hotel is a member of the same purchasing group. The Hotel delivers twice a week to the Masonic Retirement Village and there are three other deliveries about three times a day. Customers of the shopping centre next door purchase liquor at the Hotel.
Both Mr Smyth and Mr Fisher acknowledged that on occasions there is a bank up of motor vehicles in the drive-in section of the bottle department of their respective hotels. The purpose of this evidence is, no doubt, to establish delay and inconvenience to customers shopping at hotel bottle departments. However, the evidence establishes no more than occasional delay which is to be expected at any busy retail outlet.
Mr Davis is the assistant manager of Liquorland at Brighton which commenced to operate at its present premises in about October 1997 and previously at another location on Brighton Road for about seven years. The stock list of this outlet was explained by him. There are about 1,500 different lines carried by this store and different vintage wines of the same product are not counted as different lines. If it was, the number of lines would be counted as about 1,800 to 2,000 lines. The range is extensive. Photographs of the store reveal that it is spacious and adequate for customers. Mr Davis said that his store undertakes deliveries, including to the Masonic Retirement Village. There is a community bus which takes people to the nearby shopping centre, which is the major shopping centre in Brighton, and some of them use the store on occasions. According to Mr Davis, customers at his store come from most areas in the locality. He agreed that car parking is a problem for customers at his store at times, but there are car parks adjacent to the store and across the other side of Brighton Road. There is also, at times, a traffic problem in that it is difficult for customers to turn across traffic on Brighton Road at times. Nonetheless, Mr Davis said that there are about 1,200 to 1,400 customers each week at his store.
The learned Judge did not make any reference to the witnesses called by the respondents in his reasons for judgment but it is plain from those reasons that he had regard to their evidence. Perusal of the transcript reveals that their evidence was not really in dispute.
Before considering the various grounds of appeal, it is appropriate to mention certain matters of principle and approach which are relevant.
As has been seen, s58 of the Act relates to an application for a hotel licence (ss(1)) and an application for a retail liquor merchant’s licence (ss(2)). These provisions were discussed by Doyle CJ in Woolies Liquor Stores v Carlton Investments (unreported SCSA 15.5.98, Jd No S6682) and were applied in Southern Eastern Hotel Pty Ltd & Ors v Woolies Liquor Stores Pty Ltd (1998) 71 SASR 402. Doyle CJ concluded that Parliament intended that there be some protection for the holder of a hotel licence against what he described as the powerful competition that can be provided by the holder of a retail liquor merchant’s licence. It is unnecessary to set out his reasons for that conclusion. It is sufficient to bear it in mind when resolving the issues in this appeal. He went on to say that the focus of s58(2) is upon the demand for, and the availability of, liquor whereas the focus of s58(1) is on the needs generally of the public in the locality. He then said at p404:
“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 Chief Justice went on to say that the other feature of s58(2) is that the court must consider whether the existing premises “do not adequately cater for public demand for liquor”. He said at p404:

“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. They 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”.

His Honour then said that the court has to apply some standard. He said at pp404-405:

“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 s22(2) of the Licensing Act 1967 (SA), and s38(1) of the Liquor Licensing Act 1985 (SA), 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.”

In Lovell & Ors v New World Supermarket Pty Ltd & Anor (1990) 53 SASR 53, the Full Court was concerned with the granting of a Retail Liquor Merchant’s Licence under previous, but similar, legislation. The Court held that there was a significant section of the public whose demand for liquor could not be met by the existing facilities in the locality under consideration and that the legislative requirement is satisfied if the public demand for liquor in the locality cannot be met without unreasonable difficulty and inconvenience. In that case there were a considerable number of witnesses who testified a preference for “one stop shopping” and the new liquor outlet was to operate in a recently established shopping centre which was considered to be a relevant and important consideration although not decisive. Cox J made the following observation at p58:

“Furthermore, I think that in recent cases the Court has shown a proper responsiveness to the preference of many people, such as a number of the witnesses who testified in this case, for buying their liquor from a modern bottle shop that is not part of a hotel. Reference was made in the course of argument to my description in Mick Lucas and Son Pty Ltd v Licensing Commissioner (1987) 45 SASR 312 at 328, of the hotel licence as being still ‘the centre-piece of the statutory scheme’. I think on reflection that, even with the qualification I then made, this probably overstates the position but, whether that is so or not, the changing community attitudes that necessarily influence the application of the restrictive sections of the Liquor Licensing Act would appear to make inroads by retail liquor merchants into heavily populated areas practically inevitable.”

We were also referred to the observations of the learned Judge of the Licensing Court about contemporary standards when he granted a Retail Liquor Merchant’s Licence to Clark (Renmark) Pty Ltd (unreported, Licensing Court of South Australia, Jd 29.5.98). He said at pp2-3:

“In the case of the hotel drive in and walk in something similar can fairly be said. For those seeking a place to browse and make a considered selection neither of these areas can be regarded as meeting that contemporary demand. It has become obvious over the years that it is a rare woman indeed who would contemplate purchasing their liquor from the average walk in/drive in environment. I thought that, over the years, this expressed dislike would tend to lessen but it hasn’t and I cannot but find that for a very great percentage of our society, liquor being offered for sale in this way is simply not acceptable to them. Indeed for a very high number of men a suggestion that they can meet their demand in this average walk in/drive in environment is met with considerable reluctance. People always say that they feel uncomfortable parking in drive ins. They feel that they are holding traffic up. They feel pressured. They are often quite unaware of walk in facilities as they seem rather ‘tucked away’ and not immediately obvious. Often they are unattractive and nothing much more than a storage area. People feel that the cars will be served before they are and will often be ignored. People feel embarrassed and ‘put upon’ by having to carry their purchases themselves. People often feel that they are a nuisance to the attendants and are looked upon with suspicion. These are the sorts of things evidence in so many cases and some of them evident in this. I do not think that the average drive in/walk in environment of hotels is meeting contemporary demand for those who seek to look at and take time over choosing their product. I stress ‘average’ because some hotels do provide much better. They provide special non busy parking facilities. The walk ins are obvious and have clear signage. They are much better than something akin to a storage area or having a very limited range. They have a separate cash register. They have staff committed to servicing the area and so on.”

These observations are important because they are made by the learned Judge who usually sits as the Licensing Court and thereby constitutes the specialist tribunal referred to in the cases.

I now turn to the grounds of appeal.
The first ground of appeal is that the learned Judge erred in law in his findings as to locality by including the suburbs of Glenelg and North Plympton and excluding the suburbs of North Brighton, parts of Glenelg East, Glengowrie, Warradale, Marion and Oaklands Park. I have briefly alluded to this matter. The learned Judge had a plan before him which included the relevant suburbs in the locality. Clearly, he has wrongly described the locality but has had regard to the whole of the locality in making his decision because the two hotels are not within the suburbs which he mentioned but are within the locality which he regarded as relevant. This misdescription in the reasons of the learned Judge is of no consequence as it is plain from his reasons for judgment that the learned Judge had regard to the locality as a whole.
The second ground of appeal, as argued, is that the learned Judge erred in fact and in law with respect to the demand at the appellant’s premises and to the aversion to hotels and their bottle shops. As to the first matter, it is contended that the learned Judge failed to take into account in his assessment of the “demand” evidence of the fact that already about 400 persons each week purchase their liquor requirements at the appellant’s premises despite the volume limit. There is no substance in this complaint. Whilst it is true that the learned Judge did not mention the evidence of Mr Holtham or Mr Fassina in his reasons for judgment, the evidence did not establish that the demand by that number of customers could not be satisfied. As has been seen, according to Mr Holtham, about five or seven per cent of the 400 customers, which is in the order of about 25 customers per week, cannot be satisfied because of the volume limit. None the less, it is a matter to take into account along with all of the other evidence as to “demand” but, in my view, it is not a matter of much significance. As to the second matter, the learned Judge is in the best position to assess whether it is significant. The learned Judge said:
“Normally in these cases little time is spent on the liquor facilities of hotels for the simple reason that they are often primitive and offering very little range. That is overwhelmingly not so in this case. They both have very good ranges. They both have drive ins. They both have small but ample walk ins. They do not have significant parking difficulties. I reject some vague suggestions to the contrary.”
It was suggested in argument that because the learned Judge did not inspect the two Hotels, he was not able to use his knowledge and experience as a specialised tribunal. I do not know if the learned Judge had been to these hotels in respect of other cases or for other purposes, but the evidence before him was extensive. He had the photographs, the stock lists, the evidence of Mr Smyth and Mr Fisher and the evidence of the other witnesses who were customers. His conclusions were justified by the evidence. Also, as has been seen, he had regard to those hotels being adjacent to shopping centres and he concluded that they are “very convenient to a large section of the population”. Obviously, the learned Judge was aware of observations about hotel bottle shops, including his own in Clark. There was no persuasive evidence about aversion to the bottle shops of the two hotels. His conclusions were open on the evidence.
The next ground of appeal is that the learned Judge gave no, or insufficient, weight to the evidence of the witnesses of “demand” as to traffic difficulties at Glenelg and on Brighton Road, the inadequacies of the hotel drive-in facilities and their lack of range, display, ambience and attractiveness. This ground must be rejected. The evidence has been summarised. In my view, it does not establish any of the matters to any significant degree. Other outlets in the locality are suitably acceptable and had an adequate range of liquor, standard of premises and service. The evidence of the witnesses establishes, at best for the appellant, mere inconvenience and personal preference.
The appellant’s next ground is that the learned Judge had no, or insufficient, regard to the number of customers at the Somerton Liquor Barn and the extent of the business conducted at these premises which, it is said, establish a genuine and true retail demand for the purposes of s58(2) of the Act. There is no reason to suppose that the learned Judge did not have regard to these matters and it must be borne in mind that the vast majority of the customers purchased volumes beyond the 4.5 litre minimum. Their numbers do not establish a demand for purchases below the limit. This ground also fails.
Another ground of appeal is that the learned Judge failed to have any, or sufficient, regard to the consequence of refusing the application in that persons wanting to purchase in quantities less than the volume minimum would have to satisfy their demand at the two hotels or the other liquor outlets in the locality. That is the very matter which the learned Judge did consider and he regarded the drive-in facilities as adequate. As has been seen, he paid due regard to traffic difficulties at Glenelg and Brighton. I would reject this ground of appeal.
The last ground of appeal is that the learned Judge did not have any, or sufficient, regard to the decisions of Doyle CJ in the cases which I have mentioned. Although the learned Judge did not refer to those cases, I think he made his decisions in accordance with them. This ground of appeal should also be rejected.
I would dismiss the appeal.
NYLAND J I agree that the appeal should be dismissed for the reasons expressed by Mullighan J.

[1999] SASC 303

23 July 1999