Kings Family Tavern v Lindsey Cove Pty Ltd & Ors No. Scgrg-97-411 Judgment No. 6509 Number of Pages 14 Liquor Law

[1997] SASC 6509

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

MATHESON, MILLHOUSE AND DEBELLE JJ

CATCHWORDS:

Liquor law - licensing - application for new licence - hearing of application - matters for consideration - liquor licensing application - appeal against a decision of the Licensing Court whereby application refused - trial judge in best position to decide - traffic congestion and Salvation Army premises next to the proposed site of significance - Appeal Dismissed. Liquor Licensing Act (SA) 1985 62, 63(1), 85, referred to. Lovell v New World Supermarket Pty Ltd and The Liquor Licensing Commissioner 53 SASR 53 at 58; Vandeleur and Others v Delbra Pty Ltd and Liquor Licensing Commissioner 48 SASR 156 at 161, 162, applied. Cufone v Harvey 40 SASR 261, discussed.

HEARING:

ADELAIDE, 13 October 1997 (hearing) 23 December 1997 (decision)

#DATE 23:12:1997

#ADD 30:12:1997

Appearances:

Appellant:

Counsel: Mr D Smith with him, Mr L McEvoy

Solicitors: Clelands

Respondents Lindsey Cove Pty Ltd, Hollywood Tavern Pty Ltd:

Counsel: Mr B Hayes QC with Mr J Firth

Solicitors: Kelly & Co

Respondents Taverns of SA Pty Ltd, Hotel Waterloo Pty Ltd, Ferrum Pty Ltd, Parafield Gardens Community Club Inc, Salisbury North Football Club Inc & Ors:

Counsel: Mr S Walsh QC

Solicitors: Wallmans

Respondent Mcmahon's Tavern Pty Ltd:

Counsel: Mr B Hayes QC with Mr J Firth

Solicitors: Kelly & Co

ORDER: appeal dismissed.

MATHESON J

I agree in general with the reasons of Debelle J, and in particular I agree with his remarks concerning appeals to this Court in liquor licensing matters. At the conclusion of the argument on the appeal I really had no doubt that the appeal should be dismissed. Notwithstanding the thoroughness of the submissions of Mr Smith, and the persuasive way he put them, I do not think this court should interfere with the finding of the experienced Judge of the Licensing Court, a specialised tribunal, that the appellant had failed to satisfy him that the licence was necessary to provide for the needs of the public in the relevant locality. Further, I share the learned Licensing Court Judge's concern about the siting of the proposed hotel next to the Salvation Army premises, quite apart from the provisions of ss62(1)(b) and 85(4)(f) of the Liquor Licensing Act , 1985. In a passage with which I entirely agree, his Honour said: "Whilst fencing will be provided I seriously question the appropriateness of an hotel being sited in this position. It is not only my view but the view of many not the least the Salvation Army itself. It is incongruous, in my view, that an organisation partly devoted to assisting the victims of alcohol and gambling abuse and actually providing assistance to them at the premises in question suddenly has an hotel providing the immediately convenient means of that abuse right next door. Added to this, I think, the very real danger to some of the children attending the Army premises. The siting of one vehicular outlet from the hotel puts these often unsupervised and often young children at bodily risk."

I would dismiss the appeal.

MILLHOUSE J

I have made up my mind on this appeal and can put my reasons quite shortly.

The appeal shews once again the absurdity of the licensing legislation. To have three Supreme Court judges poring over maps of Salisbury West - or any other area - to consider "need", so-called, for another hotel, having to decide whether there are enough people living in the area to justify another pub, whether Mr X should be able to walk from his house to the place to cut down drunken driving, the state of the traffic, the strength of objection and so on, is a waste of our time and the money of many others, not least the taxpayers. We are no better able to come to a conclusion about these things than anyone else with a bit of commonsense. The less so when we do not see and hear the witnesses or tour the area: all we have to go on is the written record and the arguments of counsel.

However it's what Parliament wants and we must conform without question if not without complaint. I suggest, though, that appeals from the Licensing Court should be on points of law only as it used to be with the Industrial Court.

Having got that gripe off my chest I turn to the facts.

In 1986 the Full Court in Cufone v Harvey (40 SASR 261), by majority, dismissed an appeal from the decision of the Licensing Court judge to the effect that there was no need at that time for another hotel in the area of Salisbury West. Unfortunately the Chief Justice said that at in the future another hotel (he used the words "tavern") might be justified. I say "unfortunately" because what the then Chief Justice said has encouraged the appellant to try again. When it lodged this application three other applicants jumped in as well, each in the hope that it may have been the successful one.

The provision relevant to need in the present Liquor Licensing Act is s63(1):- "(1) An applicant for a Category A licence" (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 proposed to be, situated, the licence is necessary in order to provide for the needs of the public in that locality."

It must have been a long hearing. The learned Licensing Court judge says, for example:

"I cannot be exhaustive in a case such as this in discussing the evidence of the need witnesses. It would very nearly require a novel and that is certainly not desirable. Rather I have taken mental note of the impressions gained of them and their evidence and assessed and reconsidered those in light of the various submissions made at the end of the case."

He had already remarked, "The opportunity of seeing and hearing those witnesses in the court room is of immense benefit in this regard."

At the hearing of the appeal we were referred at some length by two of the three counsel who argued before us, all experienced and able, to the evidence of the witnesses. Their written submissions had even more references to the evidence. Yet none of their arguments or submissions could have been an adequate substitute for "the opportunity of seeing and hearing those witnesses" as the learned judge put it.

All this despite what Cox J said in Lovell v New World Supermarket Pty Ltd and The Liquor Licensing Commissioner (53 SASR 53 at 58):-

"The Licensing Court is a specialist tribunal and the judge is entitled to use his own knowledge and judgment to confirm, as it were, the needs and demand evidence. It follows that it will rarely be enough for an unsuccessful objector to argue on appeal that such evidence, taken alone, was insufficient to justify the Court's findings."

It's a pity we get so many of these appeals. Most of them really are a waste of effort.

The appellant complains that the learned judge failed to consider separately each application for a licence and that he did not give sufficient weight to its evidence of need. He did in fact consider each application separately: the weight which he gave to the evidence of need was a matter for him. The keys to the fate of the appeal are that the Licensing Court is a specialist tribunal and lie in what the learned judge said. I quote it again, " The opportunity of seeing and hearing those witnesses in the court room is of immense benefit in this regard. ......" I certainly would not be prepared to upset the learned judge's finding of lack of need.

That is sufficient to dispose of the appeal and I suggest it be dismissed.

However, the learned judge, in case we should disagree with him on need, went on to consider and evaluate each of the four applications. He came to the conclusion that the present appellants application was the best of the four but said, "Regrettably it had major obstacles to its success."

The obstacles, both of which I think would have been fatal - the learned Judge doesn't say that in as many words but I think it was his view too - are traffic congestion and the Salvation Army next to the site of the proposed hotel.

The evidence is that King's Road nearby is no longer adequate to carry even the volume of traffic it does now. Were the King's Family Tavern to be built traffic would increase and the present problems made much worse. There are plans to improve Kings Road. At one time it was thought the improvements might be done in this financial year, 1997-1998, but now it looks as though they are not planned before 2001 - and then will take over 12 months to carry out. Who knows, so far ahead, whether they will actually be done then or not? Anyway for several years at least after these premises would have been opened, the traffic situation in their vicinity would be very bad. So bad as of itself justifying not approving the application.

The other "major obstacle" is that the Salvation Army is next door to the site. This is what the learned judge said:- "Then we have its siting next to the Salvation Army premises. Whilst fencing will be provided I seriously question the appropriateness of an hotel being sited in this position. It is not only my view but the view of many not the least the Salvation Army itself. It is incongruous, in my view, that an organisation partly devoted to assisting the victims of alcohol and gambling abuse and actually providing assistance to them at the premises in question suddenly has an hotel providing the immediately convenient means of that abuse right next door. Added to this is, I think, the very real danger to some of the children attending the Army premises. The siting of one vehicular outlet from the hotel puts these often unsupervised and often young children at bodily risk."

Mr David Smith for the appellant submitted that really the Army was concerned only with safety and traffic. That is, with respect to him, far too narrow a summary of their objections. In their original "Notice of Objection to Application" they did talk of safety but they also mentioned vandalism, poker machines, that another "alcohol outlet" would add to the burden "of welfare assistance within the Parafield Gardens/Salisbury area". They concluded:-

" The proposed tavern contravenes all moral principles of allowing construction of an alcoholic and possible gambling outlet, right next door to a church, which openly opposes such establishments. Our church will have its welfare facilities stretched, even more, to meet the demands of many people who have been seduced by the tavern and all it will offer."

These objections were amplified in the evidence of Captain Darryl Badenhop, the Minister of Religion with the Salvation Army.

Sections 62 and 85 of the Act are relevant to the objections of the Salvation Army:- " 62. (1) An applicant for a licence.............must satisfy the licensing authority by such evidence as it may require ......... (b) that the operation of the licence would be unlikely to result in undue offence, annoyance, disturbance or inconvenience to those who reside, work or worship in the vicinity of the licensed premises."

This is echoed and amplified in s85(4):- " (4) An objection may be made on one or more of the following grounds: ................. (e) in the case of an application for the grant or removal of a licence - that the position, nature or quality of the premises renders them unsuitable to be licensed, or to be licensed under a licence of the kind to which the application relates; (f) that if the application were granted - (i) undue offence, annoyance, disturbance or inconvenience to persons who reside, work or worship in the vicinity of the premises or proposed premises to which the application relates would be likely to result; or (ii) the amenity of the locality in which the premises or proposed premises to which the application relates are situated would in some other way be unduly lessened.

In Vandeleur and Others v Delbra Pty Ltd and Liquor Licensing Commissioner (48 SASR 156 at 161, 162) King CJ said:- " The question of the effect of the grant of a licence upon those residing, working or worshipping nearby must be taken seriously by the Licensing Court.... The court is not concerned only with such additional impact as the proposed premises might have over other uses of the land by reason of their being licensed premises. The grant of the licence will cause premises to come into existence which would not otherwise be there and all effects on those nearby resulting from the new use of the land must be considered. In considering what is 'undue' the court is entitled to have regard to the previous use of the land and as to likely alternative uses if the licence is refused. As to the latter, relevant considerations may include zoning requirements and the fact that there has been planning approval for the licensed premises. The court is not entitled, however, to abdicate the function of determining the effect of any of the consequences of the grant of a licence simply because those consequences may have been considered by the planning authority."

I have to say that the objection of the Salvation Army, confirmed by Captain Badenhop's evidence, would have been sufficient for me to decide against the appellant, even if I had not been against it on need and traffic.

It would be quite wrong to have a hotel next to the Salvation Army premises. One doesn't give the Salvation Army - one of the most effective and respected of care giving organisations - a smack in the eye like that.

The appeal should be dismissed.

DEBELLE J

Four companies applied to the Licensing Court for the grant of an hotel licence on four different sites in the area of Parafield Gardens and Salisbury. Each application attracted objection by a number of objectors. On 28 February 1997 the Licensing Court decided that there was no need for the grant of a further hotel licence in the relevant locality and dismissed all four applications. Two of the disappointed applicants appealed, by leave, to this court. They were Kings Family Tavern Pty Ltd and Hollywood Tavern Pty Ltd. The latter has withdrawn its appeal. Thus, Kings Family Tavern Pty Ltd is the only appellant.

The learned judge who constituted the Licensing Court also held that the application by Kings Family Tavern Pty Ltd was the best of the four applications in respect of the facilities provided. However, the learned judge did not favour the proposal because of two difficulties in relation to its site. The first was perceived traffic problems. The second was the fact that the proposed hotel adjoined a Salvation Army meeting hall and centre. In this respect, it is to be noted that the judge held that the site for the application by Hollywood Tavern Pty Ltd was the most practically convenient of the four applications. I will return to these issues after examining the question of need.

An Earlier Application is Dismissed

About 12 years ago, the Licensing Court rejected an application for a full publican's licence (which was the then equivalent of the present hotel licence) in the area of Parafield Gardens and Salisbury on the ground that the applicant had failed to demonstrate that there was a need for the hotel, having regard to the existing licences in the area: see s47(a) of the Licensing Act, 1967. This court upheld that decision: Cufone v Harvey (1985) 40 SASR 261. In the course of his reasons, King CJ said (at 262-263). "I think that the growth of population in the area and perhaps the expansion of the shopping centre may well justify, as the Licensing judge recognized, a tavern on this site in the future. The question is whether a present need for it has been established. An important point emerged in the evidence of this case. There was evidence of an emerging desire for tavern facilities near the homes of residents. This was based upon an awareness of the dangers of driving after drinking and of the risks of infringing the drink driving laws. There is undoubtedly a growing awareness of these matters in the community. It may be reaching the stage of affecting, even transforming, what has previously been thought of as "the needs of the public." Such an awareness may be creating a need for a greater number of taverns, perhaps on a smaller scale than has been the custom, so that these facilities will be available to more people without use of the motor car. Whether the demand for neighbourhood tavern facilities is widespread is by no means clear at the present time and was certainly not established by the evidence in the present case. There are indications, however, that the public need in this regard may be undergoing change. I think that the decision as to whether s.47(a) need had been established in the present case was a borderline decision. The existence of the shopping centre is important, but there was little evidence to establish that shoppers need and would patronize the drinking and eating facilities of a tavern. There is no evidence of pressure upon the existing liquor facilities in the district. On the whole, I think that the judge was justified in concluding that the public in the locality can have their needs met without significant difficulty. That situation may well change in the next few years but it is necessary to establish present need. I certainly do not feel able to say that the learned judge was wrong."

The appellant asserts that the area has become more densely populated so that there is now a clear need for another hotel in the locality.

New Legislation

Since the decision in Cufone v Harvey , a new Licensing Act has been enacted. It is the Liquor Licensing Act , 1985. Under the 1985 Act, an hotel licence is a Category A licence. An applicant for an hotel licence must satisfy the Licensing Court that, among other things, having regard to the licensed premises already existing in the locality of the proposed hotel, "the licence is necessary in order to provide for the needs of the public in that locality": s63(1). The court has an unqualified discretion to grant or refuse an application on any ground, or for any reason, the court deems sufficient: s59.

Although not expressed in identical terms, there is not any difference in effect or operation between s63 of the Liquor Licensing Act , 1985 and its predecessor s47(a) of the Licensing Act, 1967. Both of those provisions have been examined by this court on several occasions and the principles are well established. Those principles were summarised in Angler's Inn Hotel/Motel v Taranto (1980) Pty Ltd (1996) 188 LSJS 321 at 322. Mr Smith, who appeared for the appellant, accepted those principles. Those which are relevant to the issues in this appeal are

"1. The need to which s63 refers is need in the sense of a reasonable demand as judged by contemporary standards; it cannot mean need in the sense of necessity as judged by some ethical or sociological test: Buttery v Muirhead [1970] SASR 334 at 337 per Bray CJ who pointed out that, if the last were the real test, it might be difficult to show a need for any commodity above the minimum requirements of food, clothing and shelter.

2. The test is objective in the sense that for the demand to amount to a need, it must be a reasonable demand by contemporary standards: Blackwood Foodland Pty Ltd v Milne [1971] SASR 403 at 407.

3. The needs of the public are not necessarily concerned with the mere availability of liquor. They may be concerned with matters of taste, convenience, preference for one type of facility over another, the manner in which liquor is displayed and served, and the type and standard of accompanying services: Lincoln Bottle Shop Pty Ltd v Hamden Hotel Pty Ltd (No 2) (1981) 28 SASR 458 at 460.

4. The convenience of the public is one aspect of the concept of need: Gladstone Cellars Pty Ltd v Fricker (1984) 36 SASR 22 at 26, 27 and 31. So, the desire to purchase liquor at particular premises becomes a need within the meaning of s63 but only if the desire is not sufficiently and reasonably met by other licensed premises existing in the locality: Gladstone Cellars Pty Ltd v Fricker (supra) at 26.

5. The question of need has a dynamic element so that the assessment of the need by reference to contemporary standards requires the Court to have regard to any perceived shift in public expectations about liquor marketing: per Cox J in Lovell v New World Supermarket Pty Ltd (1990) 53 SASR 53 at 58.

6. The public includes tourists who are sufficiently close to the proposed licensed premises to regard the availability of liquor at those premises as a practical means of meeting their demands: Lincoln Bottle Shop Pty Ltd v Hamden Hotel Pty Ltd (1978) 19 SASR 326 at 340; Tonsley Hotel Pty Ltd v Whelan (1982) 31 SASR 321 at 332-334. The later decision contains guidance as to who can be fairly considered to be tourists.

7. Although many of these observations have been made in the context of applications for a retail storekeeper's licence, they apply with equal force to an application for an hotel licence: Le Cornu v Astor Tavern Pty Ltd (1983) 34 SASR 117."

It might be observed that some of these propositions are different means of expressing the one proposition. Whether that is so, is of no consequence. What is required is that the evidence of need must be assessed realistically against the background of what is known of contemporary habits and tastes: Lincoln Bottle Shop Pty Ltd v Hamden Pty Ltd (No 2) (supra) at 462; Tonsley Hotel Pty Ltd v Whelan (1982) 31 SASR 321; and Cufone v Harvey (supra) at 262.

The Relevant Locality

The Licensing Judge did not in his reasons define the relevant locality but the parties accepted that it is the area of Parafield Gardens and Salisbury. The boundaries of the locality were not agreed. It is not possible to be precise but, speaking broadly, the evidence shows that the locality is bounded on the west by Port Wakefield Road, on the north by Bolivar Road and Waterloo Corner Road, on the east by the Adelaide to Gawler railway, and on the south by Ryans Road. That locality includes a number of licensed premises.

In his reasons in Cufone v Harvey , King CJ identified the licensed outlets in the locality as being a retail storekeeper's licence in the township of Salisbury and five hotels. Three of those hotels are in the town of Salisbury. The other two were The Whitehorse Inn and an hotel then called The Waterloo Corner Hotel. Since that decision, there have been significant changes in the provision of licensed facilities in the locality. One of the hotels in the Salisbury area, now called "The Stockade", has been demolished and rebuilt. A second hotel in Salisbury, now called "The Eureka", and The Waterloo Corner Hotel, now called "The Waterloo Station Hotel" have been substantially refurbished. Two shops, the subject of a retail storekeeper's licence, have been constructed enabling the purchase of bottled or packaged liquor for consumption off the premises. They are Liquorland at the Parafield Gardens Shopping Centre and Booze Brothers at the Hollywood Plaza Shopping Centre. King CJ did not refer to three clubs in the locality which hold unrestricted licences. They are the Parafield Gardens Community Club, the Salisbury North Football Club and the Salisbury West Football Club. In addition, a little to the east of the locality is the Roulettes Tavern. This description of licensed premises obviously does not include licensed restaurants and clubs which have permits to sell liquor, which are to be found in the area.

The Roulettes Tavern is an hotel situated at one corner of the Parafield Airport. The land is owned by the Commonwealth of Australia. The licence was not granted by the Licensing Court of South Australia. It is not, therefore, "licensed premises" within the meaning of s4 of the Liquor Licensing Act , 1985. The hotel provides the facilities of a tavern, that is to say, it provides facilities for drinking liquor on the premises and sells bottled liquor for consumption off the premises. The bottle shop is extremely large and provides a wide variety of bottled and packaged liquor. Notwithstanding that the Roulettes Tavern is not licensed premises as defined by the Licensing Act , it provides a range of facilities to the public for the consumption of liquor. Thus, it is appropriate for the Licensing Court in the exercise of its discretion to have regard to it if it is otherwise a facility relevant to the question of need.

The Licensing Judge noted the changes which had occurred since the decision in Cufone v Harvey . Commenting on the cautious prediction of King CJ that there might be a need for neighbourhood taverns on a smaller scale than hitherto, the Licensing Judge said: "Returning to what King C.J. had to say some twelve years ago, he cautiously predicted that the "... situation may well change in the next few years." He also spoke of the possibility of a need emerging "for a greater number of taverns, perhaps on a smaller scale than has been the custom...." The situation has obviously changed over the years but perhaps not to the degree and extent that His Honour might have expected. Certainly there has been an increase in population and one of the hotels - The White Horse Inn - has become more relevant to the discussion than it was in those days. That hotel obviously now caters for a quite significant population derived from the locality and does now have a real bearing in this case as distinct from the earlier. The Hollywood Plaza Shopping Centre has well and truly expanded. All facilities in the locality are of very much better standard than they were in those days. Most of them have been substantially upgraded including one that has been demolished and an entirely new hotel placed in its stead. There has been the advent of a new hotel adjacent to the Parafield airport and whilst it is on the very edge of the locality its facilities are clearly available to those living in Parafield Gardens and Salisbury Downs. So things have changed decidedly for the better in the community interest. Gambling facilities are now a feature which was not the case in 1985. The expansion in population and the shopping centre must be viewed in that light. Also the demand for a greater number of taverns on a smaller scale has not, to my mind and in my experience, come to pass. By and large the grant of hotel facilities over the past twelve years has involved quite large premises directed at a wider neighbourhood than His Honour cautiously predicted might not be the case. Again, the advent of gambling - something His Honour could not have reasonably expected at that time - has meant in practice that new hotels have been on quite a large scale. Indeed, the applicants here, except perhaps for the Parafield Gardens Tavern, are not promising small neighbourhood taverns to meet a demand for facilities within walking distance. To the contrary they are spreading their tentacles to a much wider area basing their cases to a major extent, on the undoubted mobility of most of the subject population."

None of the findings or conclusions expressed in that part of his reasons was challenged.

Court Finds No Need

Evidence on the question of need was called by both the applicants and the various objectors. Those witnesses included town planners and others who proved population increases and other statistics relating to growth in the area and persons who resided in the locality. As to the latter group, the applicants called persons who expressed a desire for the proposed facility, while the objectors called persons who expressed contentment with the existing liquor facilities. While noting a degree of partisanship in these witnesses, the Licensing Judge believed that overall they represented a significant section of the community. The judge characterised the evidence of the witnesses called by the objectors as being more representative of the public's needs. He said that their evidence was more realistic in concluding that the needs of the public were happily and conveniently met in the locality at the various establishments they mentioned. He said that the effect of their evidence was that "there was a sufficient variation of facilities to meet all of their needs in a reasonable and realistic fashion". The Licensing Court Judge found:

1. In general terms, the bulk of witnesses who gave evidence in support of any one of the four applicants to be expressing a need for facilities which were directly available in their locality with little time, effort or inconvenience on their part (2131).

2. That there was no reasonable demand by contemporary standards (2131).

3. That the public in the locality, generally speaking, are very mobile and have little difficulty in getting to and from the various licensed facilities in the locality (2131). By and large the community in the locality find it little more than marginally inconvenient to get to the existing licensed facilities (2132).

4. That the existing facilities are all good facilities, and are not far from the bulk of the population (2132).

5. The facilities are provided in pleasant surroundings and the outlets vary so that "they pretty well meet all of the needs of the great majority of the population" (2132). Commenting on that finding, the judge said:

"Of course there are some dissatisfied with the variance. They want more. The promoters of the Hollywood Plaza Tavern want to provide a table service style food facility of medium cost and there are those who support such a need. But, looked at overall most are seeking meals of relatively modest cost and in various settings and I simply do not accept that there is a significant public looking specifically for table service. Even if there is, the evidence demonstrates that it is available in some of the establishments albeit in perhaps a limited way. But, in any event, a demand for a restaurant facility of this type does not necessarily justify the grant of an hotel licence. I know that these particular witnesses expressed other facets of "need". Suffice to say those other facets are well and truly available in the locality."

Those observations are correct. If the only need identified was a need for a restaurant, it does not justify the grant of an hotel licence: Angler's Inn Hotel/Motel Pty Ltd v Taranto (supra) at 325. All of these findings were open on the evidence

The judge concluded:

"In the end result, having considered all of these matters at length I come down on the side of the "contra need" people. I think they were the ones who were more reasonable and realistic in their end conclusion and that was essentially that the public are well and sufficiently catered for in this locality in terms of liquor facilities in all their various forms. If you want to gamble in pleasant surroundings there are plenty of places within easy distance to do so. If you want to drink in such surroundings likewise. If you want to eat likewise. If you want good meals they are there in various places and in various settings and with differing price structures. If you want take away liquor it is all there. There may be a need for bookings at one establishment but there is plenty of choice outside that one inconvenience."

The only aspect of the need evidence which the judge identified as not being satisfied was the ability to be able to walk to a chosen outlet. However, none of the four applicants sought to satisfy the need identified by King CJ in Cufone v Harvey of a small neighbourhood tavern. The appellant, as well as at least two of the other three applicants, sought to draw their custom from a wide area, basing their cases on the mobility of the population in the locality. The appellant saw its primary catchment area as being larger than the locality identified earlier in these reasons. It extended the locality east to the Main North Road. Not only does that belie a small neighbourhood tavern but it also has the consequence that regard must be had to the Roulettes Tavern as well, perhaps, as to the Brahma Lodge Hotel when having regard to licensed premises in the locality. The appellant's proposal was for a moderately sized hotel with a carpark capable of accommodating 111 vehicles. The appellant, therefore, did not seek to establish a small neighbourhood tavern. Further, in the view of the Licensing Judge, the demand for a large number of small neighbourhood taverns has not materialised. That is a conclusion which is plainly open to this specialist tribunal.

To summarise, the judge found that the existing licensed outlets provide a variety of services and meet the needs of the public, who are well and sufficiently catered for in this locality, that none of the applicants sought to establish a small neighbourhood tavern, and that the population was mobile. For these reasons, the judge made what he called a "firm finding" that the applicants had not proved the need for an hotel.

The appellant has not pointed to any error of law in the reasons of the Licensing Judge. It has not demonstrated that the judge has failed to have regard to any relevant factor or has not taken into account any relevant factor in reaching his decision. Instead, the appellant asks that this court review the evidence and hold that a need has been demonstrated. The effect of its submission is that the combined effect of the evidence of the four applicants demonstrate the required need, that the four applicants cannot be wrong, and that the Licensing Court should, therefore, have granted its application.

The appellant's task is difficult. The Licensing Court is a specialist tribunal. As Cox J noted in Lovell v New World Supermarket Pty Ltd (1990) 53 SASR 53 at 58, the Licensing Judge is entitled to use his own knowledge and judgment to confirm, as it were, the question whether an applicant has demonstrated the relevant need. Cox J pointed out also that evidence led for the purposes of s63 of the Liquor Licensing Act , 1985 is not to be weighed in the manner appropriate to evidence led in the trial of an action. It follows that it will rarely be enough for an appellant to argue on appeal that the evidence, taken alone, was either sufficient or insufficient to justify the finding made by the court. In other words, this court should not interfere unless the appellant can demonstrate that the decision is clearly wrong.

Mr Smith, who appeared for the appellant, submitted that the need for the licence had been proved by the oral evidence as to need, the increase in population in this locality, and the evidence of pressure on the dining accommodation at the Waterloo Station Hotel. The oral evidence was addressed by the Licensing Judge in his reasons. I see no reason to depart from the conclusions he has reached.

There has been a significant increase in the population of the locality from about 43,000 in 1985 to 50,000 in 1997. In addition, there was evidence that some 14,000 persons reside in the locality south of Kings Road. There is no hotel in that area. That population is larger than some country towns in South Australia with more than one hotel. But the question of need is not resolved by population statistics alone. The Parafield Gardens Community Club and the Liquorland bottle shop are in the area south of Kings Road. The terms of the club licence of the Parafield Gardens Community Club permit the sale of liquor to persons who are not members of the club: see s34(5)(d) of the Act. Thus, there are two significant liquor outlets in that area. Further, the persons residing in that area, described by the Licensing Judge as a mobile population, have ready access to other outlets in the locality.

The pressure on the dining accommodation at the Waterloo Station Hotel is not reflected at any of the other hotels which also provide dining facilities. It represents the manner in which the Waterloo Station Hotel promotes a particular kind of meal service. The fact that one hotel has its resources stretched providing one form of service is not, as the Licensing Judge correctly observed, necessarily proof of need for an hotel. In this case there is the additional fact that meals can be obtained in the other hotels and in the Parafield Gardens Community Club.

Mr Smith submitted that the finding that the population in the area was mobile was critical to the conclusion that there was no need for an hotel. The evidence did not, he said, support the finding. I do not agree. There was ample evidence on which the Licensing Judge could have reached that conclusion.

In the result the appellant has been unable to demonstrate that the Licensing Judge has misunderstood or misapplied evidence. It has not demonstrated any error on the part of the Licensing Judge. It follows that the appeal must be dismissed.

Given this conclusion, it is not necessary to deal with the two obstacles to the grant of this hotel licence identified by the Licensing Judge. For completeness I briefly deal with them. As to the question of traffic, there was evidence that Kings Road was to be widened and improved in the not so distant future. Further, the City of Salisbury had granted planning approval. The Licensing Judge was entitled to rely on the fact that the Council had not perceived any difficulties with traffic in permitting the development to proceed. The perceived traffic problems were not, therefore, of a kind which would prevent the grant of a licence.

The fact that the proposed hotel was adjacent to the Salvation Army meeting hall was a factor to which the Licensing Judge could have regard. Section 62(1)(b) of the Liquor Licensing Act , 1993 requires an applicant to satisfy the Licensing Court

"that the operation of the licence would be unlikely to result in undue offence, annoyance, disturbance or inconvenience to those who reside, work or worship in the vicinity of the licensed premises."

The objection lodged by the Salvation Army included the ground that the grant of the licence would cause offence to those attending services. The objection was supported by oral evidence. The Salvation Army also conducts rehabilitation programs for those dependent on alcohol as well as meetings twice a week of Alcoholics Anonymous. The objection expressed concern that an adjoining hotel would affect those attending these programs. In addition, over 100 children attend programs conducted in the evenings of Mondays, Fridays and Saturdays and on Sunday mornings. The objection voiced concern that the rear access to the hotel which adjoined the premises would be unsafe for those children. The objection also raised other social issues of a more general nature as to the desirability of another liquor outlet which included gambling facilities. The Licensing Court is not required to address the general social issues as to the desirability of granting a licence to sell liquor except in so far as those issues are raised by the provisions of the Liquor Licensing Act . Thus, the only grounds of the objection which were relevant were those going to the issues raised by s62(1)(b).

It will have been noticed that s62(1)(b) does not include in the class of persons who might be affected by the operation of a licence those who resort to premises for purposes other than living, working or worshipping in them. Given that s62(1)(b) recognises that those who might be affected by a liquor outlet include those who work or worship in the vicinity, it is curious that regard is not had to those who resort to premises for recreation or rehabilitation. The Licensing Court has an overriding discretion. That discretion is not fettered except by the scope and ambit of the Liquor Licensing Act and by the principle that it must not be exercised capriciously or arbitrarily. I do not think that the Licensing Court would be departing from the confines of the Act if it were to have regard to the interests of those who resort to premises for recreation or rehabilitation. The terms of s62(1)(b) are wider than the terms of s48(2)(a) of the Licensing Act , 1967 which required the Court to have regard only to the question of inconvenience or annoyance to persons using a church or other place of worship, a hospital or school. It was, therefore, open to the Licensing Judge to conclude that it was incongruous that an organisation whose objects include assistance to victims of alcohol and gambling abuse and which provides assistance to them at a particular premises should have an hotel providing the means to drink alcohol and gamble adjoining it.

For all of these reasons, I would dismiss the appeal.

Before concluding these reasons, I wish to state, with respect, that I do not agree with the remarks of Millhouse J concerning appeals to this Court in liquor licensing matters which in any event are available only by leave of a Judge of this court. I refer to the remarks I made in Angler's Inn Hotel/Motel v Taranto (1980) Pty Ltd (supra), with which Millhouse J agreed, that the question whether, given present day attitudes towards the marketing of liquor, an applicant for an hotel licence and other categories of licence, should have to prove the need for a licence in the sense required by s63 will prompt a variety of responses. There will be those who will say that it is wholly unnecessary in an age when it is asserted the standard of marketing of liquor has considerably improved. Some will say that the requirement to prove need is anti-competititive, establishing existing licensees to enjoy a statutory protection (in some cases a statutory oligopoly) which unfairly and unwisely adds a premium to the value of the licence. Those opposing the abolition or relaxation of the requirement will point to the desirability of providing a degree of protection to licensees given the duties imposed on them. Others will point to the overall interests of the community in restricting the undue proliferation of premises serving alcoholic liquor. There are obviously important social issues to be considered, particularly now that many hotels provide facilities for gambling as well as for the consumption of liquor. No doubt many other views could be expressed. It is not this Court's function to resolve those issues. The role and function of the Court is to interpret and apply s63 as enacted by the Parliament.

While it is necessary for an applicant to prove the need for a licence, it is desirable that this Court should be in a position to review the decisions of the Licensing Court. I repeat that appeals to this court are available only by leave of a judge of this Court. The requirement to obtain leave is plainly a screening process to ensure that the appeal merits the attention of this court. In addition, the grant or refusal of a liquor licence is a matter which affects the interests not only of the applicant, but also of other licensees in the locality and the general community. In many cases, an hotel licence is an asset of substantial value. The grant or refusal of the licence, therefore, has the potential to affect in a substantial way the financial interests of the applicant and other licensees. In addition, there are important issues as to the needs of the public and the interests of objectors, who include persons who might either support or be opposed to the grant of a licence. The Act provides certain criteria for the grant of an application and the Licensing Court is required to have regard to them. The jurisdiction of the Licensing Court is an important one. It is appropriate, therefore, for the decisions of the court to be subject to review by this Court which in the past has upheld some decisions of the Licensing Court as well as in other cases setting them aside.