Liquor Stores Association of WA (Inc) v Manya Holdings Pty Ltd - [2000] WASCA 21

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: LIQUOR STORES ASSOCIATION OF WA (INC) -v- MANYA HOLDINGS PTY LTD [2000] WASCA 21

CORAM: IPP J
MURRAY J
OWEN J

HEARD: 3 DECEMBER 1999

DELIVERED : 17 FEBRUARY 2000

FILE NO/S: FUL 79 of 1999

BETWEEN: LIQUOR STORES ASSOCIATION OF WA (INC)
Appellant
AND
MANYA HOLDINGS PTY LTD
Respondent

Catchwords:

Liquor licensing - Special facility licence - Proposal to sell packaged liquor to account customers of business selling office requisites - Whether a class of persons whose needs might be provided for in this way - Scope of licence discussed

Legislation:

Liquor Licensing Act 1988 (WA) s 38, s 46, s 71

Result:

Appeal allowed
Matter remitted to the Liquor Licensing Court

Representation:

Counsel:

Appellant: Mr W S Martin QC & Mr P G Laskaris
Respondent: Mr C L Zelestis QC & Mr D Mossenson

Solicitors:

Appellant: Frichot & Frichot
Respondent: Phillips Fox

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

Baroque Holdings Pty Ltd v Aljohn Pty Ltd, unreported FCt SCt of WA Library No 920441 28 August 1992
Liquor Stores Association Inc v Wine Net Australia Pty Ltd [1999] SASC 238
Rintag Pty Ltd v West Coast Hospitality Pty Ltd, unreported; FCt SCt of WA; Library No 990194; 20 April 1999

Case(s) also cited:

Beta-Chem Pty Ltd, unreported; 22 May 1997
Liquorland (Australia) Pty Ltd v Austie Nominees Pty Ltd (1999) 20 WAR 405
WA Land Authority, unreported; 8 April 1994

IPP J: I have read the reasons to be published by Murray and Owen JJ. I agree with them and the conclusions to which they have come. I have nothing further to add.
MURRAY J: The respondent carries on business in Victoria Park selling and supplying a range of office requisites. Customers may, and occasionally do, attend at the premises, order their needs and take them away, but the majority of customers place their orders by telephone or facsimile and receive their needs by courier delivery arranged by the respondent. Whether the respondent's customers attend personally to shop for their office needs or whether they do it from a distance, they are all account customers, mostly located within the Perth metropolitan area, but whose premises are to be found throughout the metropolitan area. They are individuals, corporations and firms trading as businesses whose credit worthiness the respondent has previously verified before undertaking to supply their office needs on account.
On 30 June 1998 the respondent applied to the Director of Liquor Licensing for a special facility licence to be conducted at its Victoria Park premises during its ordinary business hours so that it might supply liquor under special trading conditions that it may only be sold and supplied in sealed containers for consumption off the licensed premises to its existing account customers and not to the general public. The application was referred for hearing to the Liquor Licensing Court and, as there pursued, the proposed conditions were stated a little more expansively. In particular, there was proposed to be a condition that, "No liquor may be sold and supplied to members of the general public or anyone for private or domestic purposes."
However, the reasons for decision given by Judge Greaves, who heard the application, show that his Honour was alive to the fact that the respondent proposed no limitation that the supply of liquor should accompany an order of any substance or, indeed at all, for the supply of office or business requisites. In other words, in effect, it was proposed to treat packaged liquor as simply another office requisite. It should be noted that because the licence sought was to expressly authorise the sale of packaged liquor for consumption off the licensed premises, if granted it would under s 65(1) be subject to the conditions that the liquor must be consigned to the purchaser at, and delivered on or from, the licensed premises in sealed containers and that it should not generally be, or be permitted to be, consumed on or in the immediate proximity of the licensed premises.

An application for a special facility licence is by definition under the Liquor Licensing Act 1988 (WA) s 3(1) a Category A licence. That being the case, the Director of Liquor Licensing was required by s 71 of the Act to specify "the affected area to which the application relates". A primary, but by no means the only, important purpose for the specification of an affected area is to give residents of that area and persons holding Category A licences for premises situated in the area a right of objection to an application for a licence: s 73(2)(a). For this purpose, by s 73(3), a resident includes any person or body of persons corporate or unincorporate who has, in the opinion of the licensing authority, a proper interest in the affected area other than as a licensee and who is likely to be affected by the grant of the application.
I note, however, that the right of objection thus conferred is not exclusive. By s 73(2)(b) other persons or classes of persons prescribed or specified by the licensing authority and defined in the advertisement of the application have a right of objection, in each case upon any grounds specified in s 74. Subject to the requirements of s 73(2)(b) being satisfied (which was not the case here), in a case such as this where the operation of the licence might attract customers from anywhere within and indeed beyond the metropolitan area, a person or body who might have a right of objection might be a person or body wherever situated who, in a way of business or otherwise, may be able to demonstrate a relevant interest in the application.
In this case, however, the affected area specified was that within a radius of three kilometres from the respondent's Victoria Park premises and there were a number of objectors, represented by the one legal practitioner, who pursued common objections as the holders of liquor store licences, themselves being Category A licences, within the affected area. Their grounds of objection under s 74 of the Act were summarised by Judge Greaves as being that the grant of the application was not necessary to provide for the reasonable requirements of the public for packaged liquor in the affected area and that the special facility licence should not be granted because their liquor store licences were reasonably adequate to provide for the requirements of the public which were found to be reasonable.
After a hearing over two days in March 1999, in a decision delivered by his Honour on 28 May 1999, the application was granted upon the conditions proposed by the respondent. From that decision the appellant, one of the objectors before his Honour, appeals on grounds which it sought to amend by adding an additional ground at the hearing. The ground which is sought to be added raises a question of law, as proper grounds must (s 28(2)), concerned with whether, under a section relevant to the decision of the application, s 38, it was permissible to have regard to the requirements of the public outside the affected area for packaged liquor and the extent to which those requirements are lawfully met by other licensed premises. The ground asserts that, by s 38, the inquiry is limited to the reasonable requirements of persons within the affected area and the extent to which those requirements are met by licensed premises within the affected area. This was not apparently argued below and the respondent objects to its addition, but it is an important question of law, both for the decision of this application and generally. It was fully argued before us and, in my opinion, leave should be granted to amend the notice of appeal by the addition of this ground.
If that is done, the grounds as a whole provide proper particularisation in respect of four legal issues raised by the case. One is the proper interpretation of s 38, the question to which I have referred. The second is the proper qualifying circumstances for the grant of a special facility licence under s 46 of the Act. The third is the proper operation of the disqualification from granting such a licence that a licence of another class would be reasonably adequate, and the last question raised is whether the conditions as proposed by the respondent and upon which the application was ultimately granted are too vague and uncertain to be held to be conditions within the contemplation of the Act, specifically s 46(3).
It is convenient to start with the issues raised in respect of the operation of s 46 which is in the following terms:
"(1)The licensing authority may, in accordance with this Act, grant a special facility licence to provide for the needs of persons of a particular class or in particular circumstances, or for a particular purpose.
(2)A special facility licence shall not be granted where a licence of another class, or the imposition of a condition on a licence of another class, would be reasonably adequate.
(3)A special facility licence -
(a)may, without limiting the discretion of the licensing authority under subsection (1), be granted to provide for the needs of persons of a prescribed class, in prescribed circumstances or for a prescribed purpose; and
(b)is to be granted on such terms and conditions as are necessary to ensure that the licence is used only for the reasons for which it is to be granted.
(4)The licensee of a special facility licence is authorized to sell liquor in accordance with the terms and conditions of the licence.
(5)At a time when a sale of packaged liquor to any other persons would not be within permitted hours or at a time authorized by the licence, any authority conferred by a special facility licence to sell packaged liquor to a lodger or to any other specified class of person extends only to such quantities as might reasonably be consumed by the person to whom the liquor is sold on that day.
(6)If the Director so approves, section 37 (5) or section 38, or both of those provisions, or parts of either of those provisions, do not apply in respect of a special facility licence of a type prescribed."
In a rather different case factually, Rintag Pty Ltd v West Coast Hospitality Pty Ltd, unreported; FCt SCt of WA; Library No 990194; 20 April 1999, I said of this section, with the agreement of Kennedy and Pidgeon JJ, at 11 - 12 that:
"I think it is the case that, consistently with the object of the Act stipulated in s5(2)(c) 'to facilitate the use and development of licensed facilities reflecting the diversity of consumer demand', the special facility licence is one the use of which is justified under the Act where no other licence would be reasonably adequate to cater for a purpose identified as comprising the needs of persons of a particular class, or in particular circumstances, for liquor and related services, or where the licence is required to cater for some other identified particular purpose which may not adequately be provided for by a different form of licence. In that way, I suppose it may be useful to refer to the special facility licence as a licence of last resort, provided that description does not carry the connotation that the application for such a licence should only rarely be granted. The only requirement for any special quality within the special facility licence is, in my opinion, that it is designed to meet needs or provide for a particular purpose which may not reasonably adequately be met or provided for in any other form of licence for which the Act provides.
The diversity of the purposes for which a special facility licence may be granted as set out in s46(5) and as extended even further in their mention in reg 9A, gives the flavour of the provision, and to my mind the provision in subs(6) that nothing in subs(5) precludes the licensing authority from granting a special facility licence for a purpose to which that subsection does not refer, reinforces the view that the terms of s46 should not be read restrictively. In a real sense, the section is a 'catch-all' type of provision, designed to enable the Liquor Licensing Court, as the specialist tribunal which it is, to use this form of licence to cater for particular needs and circumstances, or a combination of such needs and circumstances, which are unable to be met by another form of licence provided for in the Act."
I propose to adopt the same approach to the proper interpretation of the section in relation to the specific issues raised in this case.
As the second paragraph quoted above reveals, the form of the section under consideration in that case preceded amendments made by a 1998 Act which became operative as from May of that year. But the Liquor Licensing Regulations 1989 reg 9A still exists, prescribing the matters referred to as purposes in respect of which a special facility licence may be granted pursuant to s 46(3)(a). In this case, I should set the regulation out in full:
"(1)For the purpose of section 46 (3)(a) of the Act the following purposes are prescribed as purposes in respect of which a special facility licence may be granted -
(a)a works canteen, authorizing the sale of liquor at a canteen for consumption at the canteen, or at other specified locations, where the liquor is sold or supplied by a person undertaking a project or carrying on a business at or near the canteen, to provide for the needs of the employees and other persons engaged in work being carried out on that project or for that business;
(b)a seafarers canteen, authorizing the sale of liquor at a canteen which is, or is to be, conducted in a seaport by a body of persons approved by the Director, to provide services or amenities (additional to the sale of liquor) to the members of the crews of ocean-going vessels and their guests;
(c)a theatre, authorizing the sale of liquor to patrons of a cinema or other theatre at which entertainment is, is to be, or has been held;
(d)A ballroom, authorizing the sale of liquor to persons attending dancing where music is provided by a band consisting of 4 or more persons;
(e)a reception or function centre, authorizing the sale of liquor to persons attending a function or reception at premises primarily used as a venue for functions and receptions;
(f)private or public transport, authorizing the sale of liquor to passengers and their guests -
(i)while, after or during travel by means of a specified means of transport;
(ii)at specified refreshment rooms or other premises at an airport, railway, bus station or seaport;
(g)historical or cultural preservation, authorizing the sale of liquor at premises of architectural or historic significance, or otherwise of cultural interest, which have at some time in the past been licensed or used as a hotel;
(h)tourism, authorizing the sale of liquor to persons likely to be attracted to, or present at places or premises that, in the opinion of the licensing authority are or will become -
(i)a tourist attraction; or
(ii)a facility that enhances the State's tourist industry;
(i)post secondary educational institutions, authorizing the sale of liquor to students and staff of the institution and their guests;
(j)a sports promotion, authorizing the sale of liquor to persons attending a sporting event at premises primarily used for playing and viewing sporting events;
(k)foodhalls, authorizing the sale of liquor from the specified licensed premises, for consumption in the foodhall ancillary to a meal;
(l)a food and beverage caterer, authorizing the sale of liquor for consumption at premises where the caterer has agreed to provide food or beverages;
(m)a bed and breakfast facility, authorizing the sale of liquor to persons staying in accommodation facilities that offer bed and breakfast facilities to guests;
(n)a room service facility, authorizing the sale of -
(i)liquor in a restaurant to a person, whether or not ancillary to a meal eaten by the person, if the liquor is consumed at a dining table and not more than 20% of the seating capacity for customers on the premises is available, or being used at any one time, for persons to consume liquor other than ancillary to a meal; or
(ii)packaged liquor from a restaurant as a service to persons resident in serviced apartments ordering room service from the restaurant;
(o)amusement venues, authorizing the sale of liquor at premises the primary purpose of which is the playing and viewing of snooker, bowling, electronic games or other similar amusements;
(p)a wine club, authorizing the sale of packaged liquor sent to a person who is a member of a wine club in the State, from a place outside the State by a liquor merchant who is authorized under the law of another State or Territory to sell liquor;
(q)a liquor auction, authorizing the sale of packaged liquor by way of auction at specified premises for consumption off those premises.
(2)In subregulation (1) -
'specified' means specified in the special facility licence.
(3)For the purposes of section 46(6) of the Act a special facility licence granted for one of the following purposes is a licence of a type prescribed:
(a)works canteen;
(b)foodhall;
(c)private or public transport;
(d)food and beverage caterers;
(e)bed and breakfast facility;
(f)room service facility;
(g)wine club; or
(h)liquor auction."
Relative to this case, it is to be noted that reg 9A(3) prescribes the types of special facility licence "for the purposes of s 46(6) of the Act". It need only be said that the Director of Liquor Licensing did not, in respect of this case, "approve" under s 46(b) that s 38, or any part of that section, did not apply in respect of this licence; nor I think could he have done so having regard to the purposes to which subreg 9A(3) refers.
Judge Greaves identified the particular class of persons for the purpose of s 46 as being those persons or legal entities who were the respondent's credit customers for office requisites, wherever their businesses might be situated, and his Honour identified the particular circumstances relevant to the section as being that the licensed premises were not open to the public, the supply would be of packaged liquor as an office requisite and not for private or domestic purposes, and the supply would be during limited hours for the particular purpose of providing liquor as an office requisite.
In my view, the section is not to be interpreted in a technical or confined way and it is to be noted that subs (1) refers disjunctively to a particular class of persons, particular circumstances or a particular purpose. The gravamen of the operation of the section is its "catch‑all" character and, as subs (2) makes clear, the incapacity to grant the licence where a licence of another class would be reasonably adequate to provide for the particular class of persons, the particular circumstances or the particular purpose upon which the applicant relies.
For myself I see no difficulty in describing the natural persons, firms or corporations who are the approved account customers of the respondent as being a particular class of persons. It may be a wide class, but it is much more restricted than the general public for whose needs in respect of the consumption of liquor the Act is designed to provide in a regulated way.
Nor do I see any difficulty, as a matter of law, in the description of the provision of packaged liquor as an office requisite to persons of the particular class upon a credit facility approved by the respondent, as being a particular circumstance or a particular purpose within the meaning of s 46. The circumstance and purpose is quite different from the mere sale of packaged liquor to the public at large or to persons who may establish they have the capacity to pay for it.

As to the question arising under s 46(2), in the circumstances of this case the question identified correctly by his Honour was whether a liquor store licence granted under s 47 would be reasonably adequate to satisfy the purpose for which the special facility licence was sought. Judge Greaves thought that was not the case "because the applicant seeks authority to sell packaged liquor to a limited class of persons during limited hours from premises which are not open to the public." In other words, his Honour was persuaded by the limited nature of the market which the respondent sought to service.
A liquor store licence granted under s 47 is for the purpose of the supply of packaged liquor to the public generally "on and from" licensed premises which are kept open to the public during defined hours. In my opinion it is clear that the intention of the Act is not to use that form of licence for the supply of liquor on and from premises which are closed to the general public, to persons who are not the general public but a limited class of persons conducting businesses which have a need for office supplies, including liquor, rather than for any private or domestic purpose. It seems to me that, as a matter of law, having regard to the terms of s 47, it was open to his Honour to conclude that the respondent's proposal in this case was not to sell packaged liquor "to any person" "on", as opposed to "from", the licensed premises which the respondent proposed to "keep open" in any meaningful way during the period of supply. Those are the conventional features of a liquor store licence which were absent in this case because of the limitations on supply proposed by the respondent. I see no reason to suppose that his Honour erred in law in his consideration of the issues raised by s 46(2).
As to the contention that the conditions imposed are too vague and uncertain to satisfy the requirements of the Act, by s 46(3)(b) they are to be such "as are necessary to ensure that the licence is used only for the reasons for which it is to be granted." In this case then, to be valid it would seem to me that the conditions must be such as to ensure that the special facility licence restricted the supply of packaged liquor for consumption off the licensed premises by the respondent's approved credit customers who conducted businesses requiring the supply to them of office requisites generally. The supply was not to be to the public at large and, to the restricted class of customers envisaged, the supply was not to be for private or domestic purposes. The supply was only to be during the week, during the respondent's ordinary business hours.
Those seem to me to be essentially the matters to which the conditions imposed were directed. No doubt they could have been expressed more tightly and perhaps with greater clarity, but I think that is a very different matter from the proposition that they were so vague and uncertain as to be unworkable and to lead to the conclusion that they were not terms and conditions of the type contemplated by s 46(3)(b).
In short, in my opinion, the matters of law raised with respect to the application of s 46 are not made out as grounds upon which the appeal should be allowed, but s 46(1) provides that the grant of a special facility licence is to be "in accordance with this Act", and the real difficulty in this case, in my opinion, is that raised by the final ground of appeal, which I would grant leave to add, which is concerned with the application to the case of s 38.
The question raised by this ground, which I have set out earlier in these reasons, requires consideration of s 38 of the Act. So far as it is necessary to set it out, it is in the following terms:
"(1)An applicant for the grant or removal of a Category A licence must satisfy the licensing authority that, having regard to -
(a)the number and condition of the licensed premises already existing in the affected area;
(b)the manner in which, and the extent to which, those premises are distributed throughout the area;
(c)the extent and quality of the services provided on those premises; and
(d)any other relevant factor, being a matter as to which the licensing authority seeks to be satisfied,
the licence is necessary in order to provide for the reasonable requirements of the public for liquor and related services or accommodation in that area.
(2)Taking into account the matters referred to in subsection (1), the licensing authority in considering what the requirements of the public may be shall have regard to -
(a)the population of, and the interest of the community in, the affected area;
(b)the number and kinds of persons residing in, resorting to or passing through the affected area, or likely in the foreseeable future to do so, and their respective expectations; and
(c)the extent to which any requirement or expectation -
(i)varies during different times or periods; or
(ii)is lawfully met by other premises, licensed or unlicensed.
(2a)In considering what the reasonable requirements of the public may be for the purposes of an application under subsection (1) the licensing authority may have regard to ‑
(a)the subjective requirements of the public, or a section of the public, in the affected area for liquor and related services, whether those requirements are objectively reasonable or not; and
(b)whether the grant or removal of the licence will convenience the public or a section of the public in the affected area,
but the licensing authority may disregard either or both such considerations as it sees fit."
It will be observed that subss (1) and (2) are in mandatory terms as opposed to the expressly permissive terms in which subs (2a) is expressed. The focus of the provision is upon the affected area. In this case, as I have mentioned, that area was specified under s 71 as being that enclosed within a radius of three kilometres from the proposed licensed premises. The requirement to specify an affected area was mandatory. Under s 71(2) the Director of Liquor Licensing may take into account:
"(a)the class of licence to which the application relates;
(b)the nature and location of the places from which, and the persons from whom, the prospective licensee might derive trade;
(c)planning matters;
(d)existing or proposed licensed premises or other recreational venues, facilities or amenities;
(e)questions of access, or of limitations on access;
(f)established or prospective trading patterns; and
(g)any other matter likely to be relevant to the reasonable requirements or expectations of the public."
Having regard to those matters, particularly those specified in s 71(2)(a), s 71(2)(b), s 71(2)(f) and s 71(2)(g), it may have been preferable to specify a much larger affected area, one more closely approximating the area from which the respondent drew or proposed to draw its credit customers for office requisites.
I consider that the Act imposes no particular limitation upon the nature of the area which may be specified, provided, of course, that it is an area which may be given some definition: cf Liquor Stores Association Inc v Wine Net Australia Pty Ltd [1999] SASC 238, an unreported decision of the Full Court of South Australia, delivered 16 June 1999, where the court was concerned with an application for a liquor merchant's licence where there were proposed to be no premises open to the public but a warehouse from which could be despatched orders of wine placed with the applicant by means of the Internet. As Duggan J put it at [97] and [98]:
"97.The Liquor Licensing Act 1997 contemplates that a licensed retail liquor merchant's outlet will operate as a normal retail outlet with facilities for the public to make liquor purchases on the premises. It is unnecessary to refer to the various provisions in the Act which make this clear, but the onus imposed by s 58(2) on an applicant for a licence to satisfy the licensing authority that there is a need in the locality in which the premises are, or will be, situated is an example. In my view the matters relevant to this test which must be considered by reference to a locality in the geographical sense (Woolies Liquor Stores Pty Ltd v Carleton Investments Pty Ltd and Ors) (unreported, 15 May 1998 Judgment No S6682) cannot be assessed when there are no premises which function as an ordinary retail outlet.
98.The learned Licensing Court judge found that the relevant locality was the whole of South Australia and then went on to consider whether demand was already satisfied by the holder of a retail liquor licence which utilises the internet for marketing and sales purposes. The holder of the licence which presently utilises the internet operates premises which had to satisfy the need test in relation to the locality in which the shop is situated in order to obtain its licence in the first place. In my respectful view, however, the concept of need in the sense contemplated by the Act cannot be applied to the circumstances of the present case where the premises to be licensed are an irrelevant consideration to the test of need in a particular locality. South Australia and beyond might well be the market which the internet and other communication systems assist in creating, but it does not follow that this market can be equated with the relevant locality for the purposes of s 58(2)."
In this case, it is clear that Judge Greaves took the view that although the objectors before him were existing liquor store licensees within the affected area, the nature of the application and the proposals before him meant that he ought to consider the requirements of the public outside the affected area and their reasonable need to satisfy requirements for the purchase of packaged liquor as effectively just another office requisite. He was really led to that proposition by the way in which the case was conducted before him by both parties, but in my respectful opinion, it is clear under s 38 that such an approach has caused the learned Judge to fall into error.
The matters to which regard is to be had under s 38(1) are necessarily concerned with facilities within the affected area. In my opinion, s 38(1)(d) cannot be given an operation which may cause the court to disregard locality‑based considerations and to focus on the impact of the applicant's proposal and the capacity to satisfy it over a much wider area. It remains necessary under s 38(1) to satisfy the licensing authority that the licence is required to provide for the reasonable requirements of the public, including a more limited class of persons which is nonetheless a section of the public, for liquor and related services in the affected area. The provisions of subs (2), in particular, reinforce that view although there is a flexibility there in the need to have regard to the matters set out in subs (2)(b) and, in particular, the potential market, which may include persons "resorting to or passing through the affected area, or likely in the foreseeable future to do so".
Even so, it remains the case that the focus is upon the affected area. This remains a regulated industry. By s 5(1)(a) that is one of the primary objects of the Act. It is clear from s 5 that the regulation is for the purpose of facilitating the supply of liquor in the community, but in a controlled and regulated way designed to ensure, not only that the facilities which the community requires are available, but also that the

industry develops in a regulated and orderly way having regard to the interests of those who participate in it. The device of the affected area is a central means by which those policies are given effect in the decision by the licensing authority of applications for licences, permits and the like.

The licensing authority may not, in my opinion, particularly having regard to the terms of s 38, consider the requirements of the public outside the affected area; nor do I accept that in a case of this kind it may be said that that did not occur because account customers of the respondent resort to the area by placing their orders by telephone or facsimile.
The crucial thing then, in relation to a special facility licence, is to specify as the affected area that area which is proposed to be serviced by the licence having regard to the particular terms of the application. As has been seen, s 46 introduces a flexibility into the licensing system to enable the needs of a wide variety of particular classes of persons, particular circumstances or particular purposes to be met. That view is reinforced by the terms of reg 9A. It may be that, by the process provided in s 46(6) in relation to a particular type of special facility licence, the requirement to satisfy s 38 may be dispensed with, but this was not such a case and until that happens it will remain crucial that the affected area be specified in such a way as to allow a realistic judgment to be made within the confines of s 38.
In view of the error made, as I have identified it, I consider that the appeal must be allowed. I would quash the decision to grant the licence subject to the conditions specified and remit the matter to the Liquor Licensing Court to be further dealt with in accordance with these reasons. Whether it would be appropriate to grant the application having regard to the relevant factors operating within the affected area is not a matter upon which I would comment. Although I do not decide the point, it would seem to me to be difficult to suppose that the application might further proceed upon a newly specified affected area.
OWEN J: I have seen the reasons for decision that Murray J intends to publish. I agree with his Honour's reasons and with the conclusion that the appeal must succeed. I wish to add a brief comment on one aspect.
In my view the learned Licensing Court Judge erred in the way he approached the task under s 38 of the Liquor Licensing Act 1988. The Director of Liquor Licensing specified the region within a three kilometre radius of the applicant's premises as the "affected area" for the purposes of the application. In my view His Honour effectively treated the affected area as being anywhere from which the applicant would or might draw

account customers and failed to pay proper regard to the three kilometre region. The Judge took into account the reasonable requirements of the public both inside and outside the affected area and the extent to which those requirements were met by licensed premises both inside and outside that area. I do not think this is in accordance with the scheme of the Act.

The concept of an "affected area" is an important one in the liquor licensing regime established under the Act. As Ipp J said in Baroque Holdings Pty Ltd v Aljohn Pty Ltd, unreported; FCt SCt of WA; Library No 920441; 28 August 1992 at 11:
"The principal purpose of defining an affected area is to establish the qualification for standing for those who wish to object to the application (see s 73(2)). The very term "affected area" suggests that it is intended to embrace those persons who would be affected by the grant of the application. It is those persons who have the right to object to the grant of a licence."
The problem is, I think, that it means that a significant number of operations which "would be affected by the grant of the application", for example the liquor stores in places in which there many offices or similar establishments but which are more than three kilometres from the applicant's premises, will not have standing to object. I do not think this accords with the plain wording and intent of the Act.
There is a further issue. Under s 38(1) the licensing authority must be satisfied that the licence is necessary to provide for the reasonable requirements of the public for liquor and related services in the affected area. By s 38(2) the licensing authority must, in considering the requirements of the public, have regard to:
(a)the population of, and the interests of the community in the affected area; and
(b)the number and kinds of persons residing in, resorting to or passing through the affected area.
The first part of that stipulation concentrates on what might be called the local community, namely, those whose residential or working base is within the affected area. The second part extends that somewhat and includes within the scope of persons constituting the public (or a section of it) people who are not so intimately connected to the affected area but who nonetheless have a connection with it. Leaving to one side residents, they are persons who resort to or pass through the affected area.
I am not at all sure that a person who is geographically remote from the affected area and whose only connection with it (at least for purposes relevant to this application) is the lodging by electronic means of an order for liquor along with office supplies can be said to resort to or pass through the area as those phrases are used in the section. In a similar vein, the application seemed to proceed on the assumption that liquor may be regarded as "just another office requisite". I am not sure that this approach is helpful. Liquor is a substance the supply of which to members of the public is controlled. That sets it apart from conventional office requisites.