Laveson Pty Ltd v Smith
[2003] WASCA 286
•27 NOVEMBER 2003
LAVESON PTY LTD -v- SMITH & ANOR [2003] WASCA 286
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 286 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:3/2003 | 10 OCTOBER 2003 | |
| Coram: | STEYTLER J PARKER J MILLER J | 27/11/03 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Matter remitted to Liquor Licensing Court for rehearing according to law | ||
| B | |||
| PDF Version |
| Parties: | LAVESON PTY LTD COLIN SMITH HIGHWAY (BUNBURY) PTY LTD |
Catchwords: | Liquor and Licensing Application for conditional removal of liquor store licence Whether licensing authority could be satisfied that reasonable requirements of the public for liquor and related services could not be provided for in the affected area by licensed premises already existing in the area Liquor Licensing Act 1998 (WA), s 38(2b) |
Legislation: | Liquor Licensing Act 1988 (WA), s 38(2b) |
Case References: | Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 Downes Family Trust v Woolworths (WA) Pty Ltd [2001] WASCA 382 Laveson Pty Ltd v Prosser Automotive Engineers Pty Ltd [1999] WASCA 285 Lincoln Bottle Shop Pty Ltd v Hamden Hotel Pty Ltd & Ors (No 2) (1981) 28 SASR 458 Liquorland (Australia) Pty Ltd v Austie Nominees Pty Ltd (1999) 20 WAR 405 Lloyd v Faraone [1989] WAR 154 McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 South Eastern Hotel Pty Ltd v Woolies Liquor Stores Pty Ltd (1998) 71 SASR 402 Vetter v Lake Macquarie City Council (2001) 202 CLR 439 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Charlie Carter Pty Ltd v Streeter and Male Pty Ltd (1991) 4 WAR 1 Commissioner of Taxation v Miller (1946) 73 CLR 93 Executive Director Public Health v Woolworths Ltd [2002] WASCA 108 Farmer v Cotton's Trustees (1915) 31 TLR 478 Federal Commissioner of Taxation v Broken Hill South Ltd 49 (1941) 65 CLR 150 Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 Hope v Bathurst City Council (1980) 144 CLR 1 Instrumatic Ltd v Supabrase Ltd [1969] 2 All ER 131 Liquorland (Australia) Pty Ltd v Hawkins (1997) 16 WAR 325 Lovell v New World Supermarket (1990) 53 SASR 53 New World Supermarkets Pty Ltd v Liquor Licensing Commissioner, unreported; FCt SASC; 2612 of 1988; 5 July 1989 Palace Securities v Liquor Licensing (1992) 7 WAR 241 Re Eaton Fair Cellars (1999) 21 SR (WA) 128 Ruhamah Property Co Ltd v FCT (1928) 41 CLR 148 Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 112 The Matter of the Liquor Licensing Act 1988 Coles Myer Ltd, unreported; SCt of WA; Library No 8267; 28 May 1990 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : LAVESON PTY LTD -v- SMITH & ANOR [2003] WASCA 286 CORAM : STEYTLER J
- PARKER J
MILLER J
- Appellant (Applicant)
AND
COLIN SMITH
First Respondent (First Objector)
HIGHWAY (BUNBURY) PTY LTD
Second Respondent (Second Objector)
Catchwords:
Liquor and Licensing - Application for conditional removal of liquor store licence - Whether licensing authority could be satisfied that reasonable requirements of the public for liquor and related services could not be provided for in the affected area by licensed premises already existing in the area - Liquor Licensing Act 1998 (WA), s 38(2b)
(Page 2)
Legislation:
Liquor Licensing Act 1988 (WA), s 38(2b)
Result:
Appeal allowed
Matter remitted to Liquor Licensing Court for rehearing according to law
Category: B
Representation:
Counsel:
Appellant (Applicant) : Mr D H Solomon
First Respondent (First Objector) : Mr P L Fraser
Second Respondent (Second Objector) : Mr P L Fraser
Solicitors:
Appellant (Applicant) : Solomon Brothers
First Respondent (First Objector) : Ilberys
Second Respondent (Second Objector) : Ilberys
Case(s) referred to in judgment(s):
Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126
Downes Family Trust v Woolworths (WA) Pty Ltd [2001] WASCA 382
Laveson Pty Ltd v Prosser Automotive Engineers Pty Ltd [1999] WASCA 285
Lincoln Bottle Shop Pty Ltd v Hamden Hotel Pty Ltd & Ors (No 2) (1981) 28 SASR 458
Liquorland (Australia) Pty Ltd v Austie Nominees Pty Ltd (1999) 20 WAR 405
Lloyd v Faraone [1989] WAR 154
McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8
South Eastern Hotel Pty Ltd v Woolies Liquor Stores Pty Ltd (1998) 71 SASR 402
Vetter v Lake Macquarie City Council (2001) 202 CLR 439
(Page 3)
Case(s) also cited:
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Charlie Carter Pty Ltd v Streeter and Male Pty Ltd (1991) 4 WAR 1
Commissioner of Taxation v Miller (1946) 73 CLR 93
Executive Director Public Health v Woolworths Ltd [2002] WASCA 108
Farmer v Cotton's Trustees (1915) 31 TLR 478
Federal Commissioner of Taxation v Broken Hill South Ltd 49 (1941) 65 CLR 150
Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47
Hope v Bathurst City Council (1980) 144 CLR 1
Instrumatic Ltd v Supabrase Ltd [1969] 2 All ER 131
Liquorland (Australia) Pty Ltd v Hawkins (1997) 16 WAR 325
Lovell v New World Supermarket (1990) 53 SASR 53
New World Supermarkets Pty Ltd v Liquor Licensing Commissioner, unreported; FCt SASC; 2612 of 1988; 5 July 1989
Palace Securities v Liquor Licensing (1992) 7 WAR 241
Re Eaton Fair Cellars (1999) 21 SR (WA) 128
Ruhamah Property Co Ltd v FCT (1928) 41 CLR 148
Sinclair v Maryborough Mining Warden (1975) 132 CLR 473
Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 112
The Matter of the Liquor Licensing Act 1988 Coles Myer Ltd, unreported; SCt of WA; Library No 8267; 28 May 1990
(Page 4)
1 STEYTLER J: I have had the advantage of reading the judgment of Miller J. I agree entirely with it. There is nothing I wish to add.
2 PARKER J: For the reasons given by Miller J I agree that the appeal should be allowed to the extent identified by Miller J and the matter should be remitted to Greaves J to determine it according to law in the light of these reasons.
3 MILLER J: This is an appeal from a judgment of Greaves J delivered in the Liquor Licensing Court of Western Australia ("the Licensing Court") on 9 December 2002 when the learned Judge dismissed an application by the appellant for the conditional removal of a liquor licence at Giants Liquor Eaton at Lot 33 Crampton Avenue, Eaton and its transfer to premises proposed at the corner of Pratt Road and Old Coast Road, Eaton, a distance of approximately 1.2 km. The licence in question was a Category "A" licence number 6030029769 issued pursuant to Pt III Div 2 of the Liquor Licensing Act 1998 (WA) ("the Act"). The application to remove the licence was made pursuant to the provisions of s 38(2b)(a) of the Act, which is in the following terms:
"(2b) Notwithstanding anything else in this section -
(a) a liquor store licence shall not, other than in accordance with paragraph (b), be granted in respect of, or removed to, premises unless the licensing authority is satisfied that the reasonable requirements of the public for liquor and related services in the affected area cannot be provided for by licensed premises already existing in that area; …"
4 The application in the Licensing Court occupied two days of hearing following which the learned Judge reserved his decision. In giving his decision the learned Judge published brief (two page) reasons in which reference was made in one paragraph to some of the evidence before the Court. There was also reference to the relevant provision of the Act and to the test to be applied to the application. The learned Judge then reached his conclusion in the following terms:
"6 Counsel for the objectors submitted there is no evidence before the court upon which it is open to
(Page 5)
- conclude that the reasonable requirements of the public for liquor itself and related services cannot be provided for in this affected area by licensed premises already existing in the area without occasioning substantial difficulty or substantial incovenience to the relevant public.
- 7 I accept that submission and it must be fatal to the application."
5 Regrettably, the reasons for the learned Judge's decision failed to reveal why the learned Judge considered that there was "no evidence" before the Licensing Court upon which it could conclude that the reasonable requirements of the public for liquor and related services could not be provided for in the affected area by licensed premises already existing in the vicinity, without occasioning substantial difficulty or substantial inconvenience to the relevant public. Instead, the learned Judge simply accepted the submission of the objectors that this was so.
6 The obligation to articulate proper reasons in a case in which there is a right of appeal to this Court on a question of law is clear. It was put in the context of an appeal from the District Court of Western Australia (where the appeal is of right whether for error of law or fact) in Lloyd v Faraone [1989] WAR 154 by Malcolm CJ (at 163 - 4):
"By s 79(1)(a) of the District Court of Western Australia Act 1969 a party to an action in the District Court who is dissatisfied with a final judgment may appeal from that judgment to the Full Court. Such an appeal is as of right, whether for error of fact or law. In these circumstances, the trial judge has a duty, in which both the litigants and the appellate court have an interest, to reveal his reasons. Those reasons must be revealed to such an extent as will enable an appellate court to consider and determine whether or not the judgment is erroneous. In Carlson v King (1947) 64 WN (NSW) 65 at 66 Jordan CJ said:
'It has long been established that it is the duty of a court of first instance, from which an appeal lies to a higher court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal. This includes not only the evidence, and the
(Page 6)
- decision arrived at, but also the reasons for arriving at the decision.'
- In Pettitt v Dunkley [1971] 1 NSWLR 376 at 387-388 Moffitt P (with whom Manning JA agreed) said:
'… there is as much a duty or judicial obligation or an obligation imposed by law to give reasons in an appropriate case as there is otherwise a duty to act judicially, such as to hear arguments of counsel and hear evidence and admit relevant evidence of a witness. The reason why the judicial obligation to give reasons in an appropriate case exists, is that, where an appeal is provided, the trial at first instance does not exhaust the rights which parties may have. Just as an expressed statutory requirement to find facts and give a decision on the particular question of law which arises is directed to ensuring that the right of appeal in case of error of law is effective, so any general judicial duty to give reasons is similarly directed. The views of Jordan CJ quoted (supra) recognise that the duty of the judge or court is not limited to hearing the case and entering a verdict. Not only has he a judicial duty to determine and enforce the rights of parties at a trial judicially conducted at first instance, but he also has a judicial duty which, within some limits, is directed to preserving and facilitating any rights of appeal from his decision which a party may have.'
This passage was repeated by Moffitt P (with whom Glass JA agreed) in Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 702."
- As indicated, an appeal to this Court from a decision of the Licensing Court is open only on a question of law. The appeal right considered in Lloyd v Faraone was in respect of errors of law and fact. Despite this distinction, the observations of Malcolm CJ are equally applicable to the Licensing Court although, in a particular case, what is necessary to preserve and facilitate the right of appeal may be affected by the limitation of the right to questions of law.
7 Because the judgment delivered by the learned Judge below made no real attempt to analyse and assess the evidence before him on the question which arose under s 38(2b) of the Act, the case has not been "laid properly and sufficiently before (this Court)" and, in my view, the
(Page 7)
- appellant is entitled to complain that the reasons delivered by the learned Judge were entirely inadequate to enable it to understand on what basis the application for removal of the liquor store licence had been refused.
Right of appeal
8 An appeal from the Court to the Supreme Court lies against a decision of the Licensing Court only upon a question of law (s 28(2) of the Act) but there is no doubt that the very question whether there is any evidence of a particular fact or set of facts is itself a question of law: McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-138; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [24].
9 Because the grounds of appeal in the present case raised the question whether it was open to the learned trial Judge to conclude that there was no evidence before the Licensing Court to satisfy the provisions of s 38(2b) of the Act, I am satisfied that a question of law is properly raised.
Grounds of appeal
10 The grounds of appeal (excluding the lengthy particulars of each ground) are as follows:
"1. His Honour erred in law in finding that there was no evidence before the Court upon which it was open to the Court to conclude that the existing facilities in the affected area, being the area within a 3 km radius of the proposed premises ('the affected area'), cannot meet the reasonable requirements of the public pursuant to section 38(2b)(a) of the Liquor Licensing Act 1988. The Court ought to have found that it had [the following' evidence before it tending to establish the matter:
…
2. His Honour further erred in law in failing to hold that, on the basis of the evidence before him, the existing facilities in the effected [sic] area do not meet the reasonable requirements of the public."
(Page 8)
The essential facts
11 Pursuant to s 71 of the Act, the Director of Liquor Licensing was required, in respect of the appellant's application, to specify an "affected area". Section 71 of the Act is in these terms:
"71. The affected area
(1) Where -
(a) a notice of application is lodged for the grant, or removal, of a Category A licence; or
(b) the Director, having regard to the nature of an application in any other case, determines that it would be appropriate,
the Director shall cause an area surrounding the place where the premises to which the appplication relates are, or are proposed to be, situate to be specified, and the area so specified shall be taken to be the affected area to which the application relates."
12 The affected area specified by the Director was 3 km from the proposed site, an area which took in portion of the City of Bunbury and a portion of each of the Shires of Dardanup and Harvey. Annexed to this judgment is a plan which shows the affected area. Existing Category "A" licences in the affected area are marked 1, 2 and 3 on the plan. They are respectively the Collie Bridge Tavern, the Sanctuary Tavern and the Eaton Fair Woolworths Liquor Store. The location of the appellant's present Category "A" licence is marked "Existing Site" and that to which it seeks removal, "Subject Site". The affected area incorporates a number of residential locations, the most concentrated of which is within the area of Eaton.
13 In support of the appellant's application there was tendered to the Court a report of Planning Solutions (Aust) Pty Ltd (Urban & Regional Planners) dated October 2002 which set out many relevant matters. It pointed out that the subject site was located approximately 150 km south of Perth and situated between the townsite of Australind (3 km to the north) and the city of Bunbury (5 km to the south). The subject site is in Eaton at the corner of Pratt and Old Coast Roads and opposite it are Apex park and the Collie River. There are boat launching, picnic and toilet facilities provided within the park and the Collie Bridge which traverses the Collie River to the north of the subject site leads in
(Page 9)
- the direction of Australind. Adjacent to the subject site are a hall, fire station, offices, restaurant, hairdresser, convenience store (incorporating local shopping requirements and postal facilities), lottery agency and short stay accommodation (cabins, caravans and camping facilities).
14 The subject site is within the only significant commercial centre servicing the western area of Eaton and the surrounding area combines what is termed "passive recreation" with residential accommodation. West of the subject site the residential accommodation is described as "exclusive single style" accommodation within the "Grand Canal Estate" to the west of Old Coast Road, providing substantial quality housing development in a canal estate context. South-west of the subject site, the Sanctuary Golf Course Estate provides a range of quality single residential accommodation. The Riverside Caravan and Cabin Park located immediately to the east and south of the subject site provides limited short stay accommodation in the form of on-site cabins and caravans, caravan and camping sites. East of the Riverside Caravan and Cabin Park is the residential estate of Eaton, which is characterised by typically single residential housing accommodation and sporting/recreational facilities.
15 The subject site is on Old Coast Road which is the primary north-south highway access connecting Australind, Eaton and Bunbury. There is access to the subject site from surrounding residential areas, both north and south of the Collie River.
16 The proposed development at the subject site has been approved by the Shire of Dardanup. It involves the construction of a free-standing building for use as a liquor store with a sales area of 185 m2; store room of 99.7 m2; cool room of 48 m2 and staff amenities of 16 m2. Additionally, the proposed facility is to incorporate areas for wine tasting and product delivery. The Centre within which the proposed building is to be erected provides commercial services for residents of Eaton at a neighbourhood level. Other persons who are said to use the facilities include daily commuters from areas north of Bunbury such as Binningup and Australind, together with people visiting the south-west region of Western Australia.
17 Within the affected area, urban development is generally contained within discrete urban cells. The locality of Eaton is bounded by the Collie River on the north, the Australind Bypass to the east and south and the Leschenault Estuary to the west. The western part of Eaton has been substantially developed with housing and a new subdivision is
(Page 10)
- underway in the east and north-east of the suburb. Clifton Park is on the northern side of the Collie River and it is bounded by the River to the south-east, the Bunbury Golf Course to the north and the Leschenault Estuary to the west. Glen Iris is a developing locality south of the Australind Bypass.
18 The report of Planning Solutions Aust Pty Ltd describes the three other Category "A" licensed premises within the affected area in the following terms:
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Friday & Saturday - 9am - 12pm; Sunday - 10am - 9pm |
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Sunday - 7pm - 10pm |
(Page 11)
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Public Holidays - 10am - 6pm |
- 20 The report annexes photographs and a description of each of the three Category "A" licensed premises. The Collie Bridge Tavern is described as being a short distance from a caravan park and a chinese restaurant, with the provision of a two-lane drive-through bottle shop and an adjacent service area which provides parking opportunities for customers to browse for packaged liquor. The Sanctuary Tavern is described as accessed from Old Coast Road and part of the Sanctuary Resort Golf Course, with the tavern being part of the central golf club facilities. There is a lounge bar and a beer garden and packaged liquor sales are made over the bar. There is no liquor store or bottle shop facility. The Eaton Fair Cellars (Woolworths Liquor Store) is within the Eaton Fair Shopping Centre, which is the major shopping facility for Eaton. It is said to provide "a comprehensive bottle shop and occasional wine tasting". The appellant's present premises (Giants Liquor Store) comprise only a small shop forming part of a shopping complex. The premises provide a range of packaged beer, wine and spirits.
21 Planning Solutions Aust Pty Ltd commissioned Alison Day & Associates to prepare a demographic assessment of the affected area. The report summarises in seven paragraphs the following characteristics within the affected area:
"1. The Affected Area contains three local authorities, all of which have experienced considerable growth over the past two decades.
2. The Shire of Dardanup, within which the predominant portion of the Affected Area is located, experienced a 25.4% growth over the period between 1996-2001.
3. Based upon the Western Australian Planning Commission publication, 'Western Australian Tomorrow, Population Projections for the Statistical Divisions, Regions and Local Government Areas of Western Australia (October 2000)', the Shire of Dardanup is expected to double its population between 2001-2016.
(Page 12)
4. The population of the Affected Area is experiencing considerable growth, and is forecast to continue to experience the growth experienced over recent times.
5. The growth of the population over 20 years of age is expected to be strong, continuing well in to the next two decades.
6. The Affected Area is a more youthful area than compared to the state of Western Australia, with proportionally more families than the state of Western Australia.
7. The predominant accommodation within the Affected Area is defined as a 'Separate House" ie single residence."
22 A community survey conducted by Alison Day & Associates surveyed 200 residents within the affected area and Planning Solutions Aust Pty Ltd have summarised the results of the survey in the following eight paragraphs:
"1. 78% of the sample purchase takeaway liquor, whilst 22% do not;
2. Of those purchasing takeaway liquor:
48% buy weekly or more regularly;
22% buy fortnightly;
16% buy monthly; and
13% buy irregularly
99% (Figure varies due to rounding);
3. 76% of those surveyed who buy liquor, buy liquor within 3km;
4. 71% of those surveyed who buy liquor consider the range of goods offered by a liquor store is important;
5. The range of goods and convenience was considered highly when purchasing takeaway liquor;
6. 98.5% of respondents were familiar with the Pratt Road centre, the site to which the proposed facility would be 'removed';
(Page 13)
7. 54.5% of the entire survey sample (including persons who do not now purchase liquor) would purchase takeaway liquor from the site to which the facility is proposed to be removed; and,
8. 7.5% of respondents would find the site to which the liquor store is to be 'removed' would be less convenient, whereas 45.5% more convenient, 27% no difference and 20% indicated the issue not to be relevant, if the facility was improved."
23 Apart from this material there was, before the Court, detail of the range of stock carried in each of the Category "A" licensed premises other than the Sanctuary Tavern. The appellant carries approximately $80,000 worth of stock with approximately 926 different product lines as follows:
beers 72
wines 384
spirits and liquors 276
miscellaneous 194
24 The Collie Tavern stocklist (excluding spirits and liquors):
Beer 85
Wines Red 173
White 192
Sparkling/other 65
25 The Eaton Fair Cellars (Woolworths Liquor Store) stocklist is as follows:
Red Wines - Minimum 650
White Wines - Minimum 600
Bruts & Sparkling - Minimum 70
Brandy - Minimum 10
Scotches - Minimum 20
Rum - Minimum 9
Bourbon - Minimum 13
Gin - Minimum 8
Ports - Minimum 30
Vodka - Minimum 12
Imported Beer - Minimum 15
Casks - Minimum 12
(Page 14)
Local Beers - All
26 It can be seen immediately that the range of stock carried at Eaton Fair Cellars far exceeds that of the other Category "A" licensed premises. While the stock lists of each of the Collie Bridge Tavern and the Eaton Liquor Store appeared to be similar, it became apparent during the hearing that reliance could not be placed on the Collie Bridge Tavern stock list. There was evidence before the Court that the appellant, if relocated, would greatly increase its stock. In evidence before the Court, Mr R J Johnson, a director of the appellant, said:
"So you gave evidence, Mr Johnson, that if the permission is given and the proposed premises are relocated to the shopping centre then the level of stock will increase to about $180,000. The question that I put to you is, what will the flow-on consequence be to the range of products offered once the stock level will increase to $180,000.
JUDGE GREAVES: I don't know whether he can say that. He says he hasn't considered the question of the raised stock other than in the dollar terms which have been mentioned.
ATKINSON, MR: Yes. I understood his evidence to be that he hasn't considered specifically which stock he will increase.
JUDGE GREAVES: That's not what he said but you go on for the moment, Mr Atkinson but that seemed to me to be his evidence.
ATKINSON, MR: Thank you, your Honour.
What can you say about your stock range once you relocate, if you were to relocate? --- Well, I can really only tell it how it is and that is that I've got a dollar figure that I've worked out that the stock lever dollars-wise will have to increase by. I have not prepared or even attempted to prepare a stock list for something that could be 5 or 6 months down the track but I know the range will increase, that's natural but I can't say by what or what I'm going to put in there."
27 There was evidence before the Licensing Court that if residents in the western part of Eaton wanted to access Woolworths Liquor at Eaton Fair, where there was a wider range of stock than elsewhere, they would be required to travel a return trip of 6.8 km. Residents from Clifton
(Page 15)
Park would have to drive substantially more than 6.8 km. This evidence was relevant because in Downes Family Trust v Woolworths (WA) Pty Ltd [2001] WASCA 382 this Court accepted the conclusions of the Licensing Court that in the Riverton area return journeys of between 2 and 8.6 km to purchase packaged liquor meant that "according to contemporary standards" other premises could not provide for the reasonable requirements of the section of the public relied upon for packaged liquor without substantial difficulty and inconvenience.
28 Further, in Laveson Pty Ltd v Prosser Automotive Engineers Pty Ltd [1999] WASCA 285, this Court accepted the finding of the Licensing Court that in relation to the same area (Eaton), a trip of six to eight minutes by motor vehicle was something which was unreasonable for customers to have to travel for packaged liquor. In that case, the Licensing Court had been dealing with the Eaton Bottle Shop and Liquorland Australind, concluding that because Liquorland Australind was six to eight minutes by motor vehicle from the proposed Eaton Bottle Shop, it was not reasonable to expect customers of the Eaton Fair Shopping Centre to travel such a distance for packaged liquor.
29 Although counsel for the first respondent argued at the hearing of the appeal that no consideration should be given to the conclusion reached in the Licensing Court in relation to this matter, I am unable to accept that submission. It seems to me that if the Licensing Court considered a return journey of between 2 and 8.6 km to purchased packaged liquor from other outlets was such that packaged liquor could not be purchased without substantial difficulty and inconvenience, that is a factor which must weigh in favour of the appellant's case.
The legal test
30 Section 38(2b) of the Act has been the subject of consideration by this Court in Liquorland (Australia) Pty Ltd v Austie Nominees Pty Ltd (1999) 20 WAR 405. There, Anderson J (at 415) said:
"The correct test under s38(2b)
Looking at the section as a whole, and having regard for the legislative history and the obvious legislative policy of special restriction in regard to liquor stores, I am of the opinion that subs (2b) is not concerned - in the way that subs (1) is - with the requirements of the public as to matters of taste, convenience, shopping habits, shopper preferences
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- and the like, but is concerned with the requirements of the public for liquor itself.
I think that, on the proper construction of s 38, an applicant for a liquor store licence is required by subs (2b) to satisfy the licensing authority that the reasonable requirements of the public for liquor itself (or liquor of a particular type, such as bottled table wines) and related services cannot be provided for in the affected area by licensed premises already existing in the area; that is, cannot be provided for at all, or cannot be provided for without occasioning substantial difficulty or substantial inconvenience to the relevant public.
There are still questions of degree about which value judgments must be made. It remains a question for judgment in every case whether the licensing authority ought to be satisfied that the 'requirements … for liquor and related services', in this narrower sense, 'cannot' be provided for by licensed premises already existing in the affected area. See, for example, Lincoln Bottle Shop Pty Ltd v Hamden Hotel Pty Ltd in which King CJ held that an existing outlet could not meet the demand in the area for wines because, although there was an ample quantity and good range in stock, the stock was not in a practical sense accessible to shoppers because it was kept in boxes in the store room."
- This passage was quoted in part by the learned Judge in his reasons, but without reference to the important third paragraph.
31 In Lincoln Bottle Shop Pty Ltd v Hamden Hotel Pty Ltd & Ors (No 2) (1981) 28 SASR 458, King CJ (speaking of s 22(2) of the Licensing Act 1967 - 1978 (SA), which is in similar terms to s 38(2b) of the Act) said (at 460):
"Section 22(2) is not concerned with the satisfaction of needs in relation to licensed premises and the services provided thereon which is embodied in s 47(a). It may be, as was suggested by Bray CJ in Blackwood Foodland Pty Ltd v Milne, that the word 'demand' in s 22(2) and the word 'needs' in s 47(a) reflect different shades of meaning. I do not think, however, that too much can be made of the difference in meaning of the two words. It seems to me that a public demand for liquor consists of a desire by the public or a significant section of it to purchase liquor or liquor of a
(Page 17)
- certain type. If that demand is not sufficiently and reasonably met, there is a need for liquor: Buttery v Muirhead, per Bray CJ at pp 337-338. The significant difference, as it seems to me, between the test under s 22(2) and that under s 47(a) is that the essence of the former test is the availability of liquor or liquor of a particular type in the existing facilities to satisfy the desire of members of the public to purchase it, whereas the latter test concentrates attention, not on the desire for liquor specifically, but on the more general concept of needs in relation to licensed premises and the services provided by them. The need referred to in s 47(a) is a need for liquor but it may be a need for liquor served in a particular context. The former test is more stringent because it requires the Court to be satisfied, not merely, as with the latter test, that the licensing of the premises is required for the needs of the public having regard to licensed premises existing in the locality, but that the public demand for liquor cannot be met by the existing facilities. Matters of taste, preference and convenience which might be relevant to the test under s 47(a) have no relevance to the test under s 22(2). 'The word "cannot" in the sub-section does not denote absolute physical impossibility. A demand for liquor within the locality which can only be met within the locality with extreme difficulty or hardship would be enough': Tomley Investment Co Pty Ltd v Victoria (Tapleys Hill) Pty Ltd and Flagstaff Hotel Pty Ltd, per Bray CJ at p 587. Mere inconvenience is not enough (Papadopoulos v The Opal Inn Pty Ltd, per Bray CJ at p 351), but, in my opinion, if the liquor of the type demanded by the public is not provided by the existing facilities in a way which makes it available, in a reasonable and realistic sense, to the members of the public requiring it, it can properly be said that the public demand for that type of liquor 'cannot be met' by those facilities."
32 In South Eastern Hotel Pty Ltd v Woolies Liquor Stores Pty Ltd (1998) 71 SASR 402, Doyle CJ (speaking of s 58(2) of the Liquor Licensing Act 1997 (SA), a section almost identical in terms to s 38(2b) of the Act) said:
"The other feature of s 58(2) is that the court must consider whether the existing premises 'do not adequately cater for the public demand for liquor'. Those words suggest to me that the court is required to consider the accessibility of the existing premises to the
(Page 18)
- public in the locality (matters such as distance, forms of transport available, time taken to get to existing premises and so on); the availability at the existing premises of the range of liquor demanded by the public, the standard of the existing premises and of the service provided there, and the existing shopping patterns and habits of the public to the extent that they bear on the accessibility of the existing premises. There may well be other matters, but these seem to me to be the matters most relevant in considering whether existing premises adequately cater for the public demand for liquor."
- In my view, the observations of King CJ and Doyle CJ are directly applicable to the present case.
The weight of evidence
33 The appellant contends that in the light of the evidence before the Court the learned Judge should have concluded:
(a) The population in the affected area had a subjective requirement for a liquor store at the corner of Pratt Road and Old Coast Road by reason of;
(i) the survey evidence in relation to the liquor purchasing population in the affected area (64% of whom would find it convenient to purchase their liquor at the corner of Pratt and Old Coast Roads), and
(ii) the size of the population and the affected area (approaching 10,000) and its demographics demonstrated prima facie evidence of demand.
(b) The subjective requirement for a liquor store at the corner of Pratt Road and Old Coast Road was subjectively reasonable on the grounds that the population of the affected area had grown and continues to grow rapidly.
(c) The reasonable requirements of the public for packaged liquor would not be met in the western and northern parts of the affected area without substantial difficulty or substantial inconvenience, given that the only licensed premises selling packaged liquor in the affected area which met the reasonable requirements of the public was
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Woolworths Liquor at the Eaton Fair Shopping Centre, by reason of the fact that:
(i) Woolworths Liquor was a large bottle shop carrying a large range of stock;
(ii) the Sanctuary Tavern sold only a basic range of liquor over the counter;
(iii) the appellant's bottle shop had a retail area which was too small to meet the reasonable requirements of the public for packaged liquor;
(iv) the Collie Bridge Tavern had an even smaller retail floor area than the appellant's bottle shop, was poorly presented, and carried a limited range of stock.
(d) Residents in the western part of Eaton had to embark on a return journey of up to 6.8 km to purchase liquor at Woolworths Liquor at Eaton Fair and residents of Clifton Park would have to drive more than 6.8 km to the same location.
(e) Statistical evidence showed that 6 per cent of the population in the affected area who do not now purchase liquor would be likely to or highly likely to purchase liquor from a shop at the corner of Pratt Road and Old Coast Road.
(f) The proposed premises of the appellant were to be large, modern premises with a retail floor area of 186 m2 being considerably larger than the premises at Woolworths Liquor in Eaton Fair Shopping Centre.
- The arguments on behalf of the appellant are very persuasive and, especially in the absence of written reasons to explain his Honour's decision, it is very difficult to understand how the existence and apparent force of this evidence was not recognised by his Honour.
34 At the hearing of the appeal, counsel for the appellant urged this Court to accede to the orders sought in the notice of appeal, namely orders that the dismissal of the appellant's application or refusal of the appellant's application be set aside and in lieu thereof this Court enter judgment, pursuant to which the application for conditional removal of the appellant's licence be granted subject to certain conditions.
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35 Under s 28(5) of the Act, the Supreme Court may affirm, vary or quash the decision subject to appeal. It may also remit the matter to the Licensing Court for further hearing, with such directions as it thinks fit.
36 In my view, the appellant has demonstrated that the learned Judge erred in law in concluding that there was no evidence before him upon which it was open to conclude that the reasonable requirements of the public from liquor and related services could not be provided for in the affected area by licensed premises already existing in the area, without occasioning substantial difficulty or substantial inconvenience to the relevant public. There was evidence, very little of which was analysed and assessed by the learned Judge in his reasons for judgment and it is arguable that this evidence made out a strong case for the appellant's application.
37 The failure of the learned Judge to analyse or assess the evidence in his reasons, and his conclusion that there was "no evidence" demonstrates, in my view, a clear error of law.
38 However, I do not think it appropriate for this Court to grant the application for the conditional removal of the appellant's licence. There are other factors which the Licensing Court would be required to consider if, upon a review of the evidence, it accepted that a prima facie case had been made for removal of the licence. Some of those factors are referred to in the notice of appeal and they are matters which the Licensing Court, not this Court should weigh.
39 I would allow the appeal on the first ground of appeal insofar as it contends that the learned Judge erred in law in finding that there was no evidence before the Licensing Court upon which it was open to the Licensing Court to conclude that the existing facilities in the affected area, being the area within a 3 km radius of the proposed premises, cannot meet the reasonable requirements of the public, pursuant to s 38(2b)(a) of the Act.
40 In my view the matter should be remitted to the learned Judge to determine it according to law in the light of these reasons.
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