Liquorland (Aust) v Hurley's Arkaba Hotel & Ors No. Scciv-00-1128

LIQUORLAND (AUSTRALIA) PTY LTD v HURLEY’S
ARKABA HOTEL PTY LTD and ORS
[2001] SASC 232
Full Court: Olsson, Perry and Gray JJ

OLSSON J. I have had the advantage of reading in draft the reasons published by Perry J.
I agree with the views which he expresses concerning the proper interpretation of the relevant legislation. Sheer logic and common sense demand such an approach. It follows that the learned Licensing Court judge fell into error in the basis upon which he proceeded.
Again, for the reasons expressed by Perry J, the views indicated by the learned Licensing Court judge concerning exercise of discretion also cannot stand.
My mind has vacillated somewhat as to whether, in the circumstances, this Court ought to substitute its view for that of the Licensing Court, or whether the matter should go back for rehearing de novo before a different judge.
At the end of the day I have reached the same conclusion as Perry J. Quite apart from the fact that steps would have to be taken to make a special acting appointment in the Licensing Court, a rehearing would visit substantial delay and very considerable expense on the appellant. Moreover, I find the reasoning expressed by Perry J on this aspect compelling.
I therefore agree with the orders which he proposes.
PERRY J. The appellant, Liquorland (Australia) Pty Ltd (“Liquorland”) is the holder of a retail liquor merchant’s licence issued under the Liquor Licensing Act 1997 (“the Act”) pursuant to which it operates a retail liquor store from a shop in the Unley Shopping Centre at Unley.
By leave granted by order of a Judge of this Court, Liquorland appeals against the refusal of its application to the Licensing Court to remove its licence to other premises. The appeal is brought pursuant to s 27 of the Act.
There were some 52 notices of objection to the removal application lodged in the Licensing Court. The parties lodging the objections included the proprietors of nearby hotels and bottle shops, the Australian Hotels Association (SA Branch), the proprietors of other businesses conducted both in Unley Shopping Centre and at other places in the area, and a number of local residents.
On the hearing of the appeal, Mr Walsh QC represented the hotel objectors, Mr Griffin represented Woolworths (SA) Pty Ltd which conducts a supermarket at Unley Shopping Centre, and Mr Costello appeared for the other objector respondents.
Both the application before the Licensing Court and the appeal to this Court were vigorously contested by the objectors. Clearly, the perception is that removal of the licence in question to enable a trading operation to be undertaken of the nature indicated by Liquorland, would have a substantial effect upon the profitability of the other liquor outlets in the locality. Further, there was a strong undercurrent apparent, suggestive of a concern that the grant of the application for removal might create what was thought by some of the objectors to be an undesirable precedent which could lead to applications for removal in comparable circumstances in other areas in the State, with similar consequences for other licence holders.
Consideration of the arguments advanced on the hearing of the appeal involves the need to address difficult questions of construction of various provisions of the Act which have a bearing upon applications for removal. However, before dealing with those questions, I will make some observations as to the factual background.
Factual Background
Unley Shopping Centre is located on the western side of Unley Road between Greenhill Road and Cross Road. There are 41 tenancies; 38 specialty shops, two supermarkets (Coles and Woolworths) and a swimming centre.
The centre includes 580 car parks. According to the evidence given by the shopping centre manager, about 40,000 customers patronise the centre each week. The main catchment area from which customers are drawn includes Unley, Parkside, Hyde Park, Malvern, Fullarton and Goodwood. Mitcham and Torrens Park were described by the shopping centre manager as its “secondary trade area”.
Within a short walking distance of the shopping centre there are five major banks.
The centre is basically a community or neighbourhood shopping centre, the accent being on convenience to nearby residents and the availability of goods which customers buy on a daily or weekly basis.
Liquorland conducts its bottle shop business under the name “Vintage Cellars” from shop 13, which is immediately adjacent to that part of the car park lying between the shopping centre and Unley Road. The Vintage Cellars shop occupies an area of 155 square metres.
The principal evidence given in support of Liquorland’s application was given by Rick Francis, an officer of the company who has experience with the operation of its liquor stores in New South Wales and Victoria. He has worked for other large liquor retailers and his experience in the liquor industry extends over 14 or 15 years.
It is clear from Mr Francis’ evidence and the other evidence given before the Licensing Court that despite the fact that it is a relatively small shop, and notwithstanding some practical difficulties associated with its operation, the Vintage Cellars outlet at Unley Shopping Centre is a successful and profitable business.
Liquorland purchased the shop, which was already operating as a liquor store, in the early 1990s. The average weekly turnover at the time of the hearing before the Licensing Court was of the order of $58,000. It carries about 1,300 lines. Mr Francis described the store as being one of the smaller, if not the smallest, of its stores in South Australia. There is not enough room for the storage of adequate back-up stocks. There is a particularly small cool-room. The limited space obliges Liquorland to carry such reserve stocks as are on hand, in the selling area of the store.
Deliveries to the store are awkward. There is no back entrance. Large trucks draw up in front of the shop to the side of the car park, and pallets or boxes are deposited on the footpath in front of the store and manhandled into the store by staff.
This procedure obstructs pedestrian movement along the footpath in that part of the shopping centre, and gives rise to a degree of pilfering. Within the shop there is a further difficulty posed by people who bring in shopping trolleys, which causes congestion within the limited floor area.
As well, Mr Francis and another employee of Vintage Cellars, a sales assistant, Ms Aston, spoke of difficulties in finding a parking space near the Vintage Cellars store, notwithstanding the overall size of the shopping centre car park.
The existing shop has a small tasting facility, but according to Mr Francis, it is invariably covered with stock and rarely used. Ms Aston gave evidence that because of the limited storage and relatively small range able to be maintained within the shop, people come in daily asking for wines which are not in stock. Particular wines might be advertised by Liquorland as being available across its various stores in the State, but requests by customers would be referred to other Vintage Cellars stores if, as was often the case, due to the restraints imposed by the lack of space a request could not be serviced from the Unley store.
Unley Vintage Cellars trades seven days a week, from 9.00 am to 9.00 pm. There are no other stores within the shopping centre open after 7.00 pm.
Shop premises adjoining the Vintage Cellars store became vacant in September 2000. The shopping centre manager indicated a willingness to lease the other shop to Liquorland. It appears from the evidence that the manager was willing to countenance alterations which would enable the two premises to be merged. This would give an extra 205.5 square metres of space, together with rear access.
Liquorland was not disposed to take up the offer of leasing the adjoining shop. According to Mr Francis, the increased rental (an additional $61,000 odd on top of the existing rental of $85,000) would mean that the operation would not be economically viable. Perhaps more importantly, even an additional 200 square metres of space would not give a sufficiently large area for the style of operation which Liquorland wished to set up in the premises to which it sought removal.
The premises to which removal is sought are situated on the opposite side of Unley Road from the shopping centre, that is, on the eastern side, about 600 metres south of the Centre. The proposed premises form part of a site previously occupied by Unley Mitsubishi, which vacated the area in August 1999.
Immediately to the south of the former Mitsubishi premises is the Malvern Village Shopping Centre, which includes a seven-day supermarket, trading from 8.00 am to 9.00 pm every day.
The proposed premises would comprise a shop floor area of 821 square metres, together with a storage area of 119 square metres and an ancillary staff area of 100 square metres, a total of over 1,000 square metres. Despite the very substantially larger area to be leased, the rental at the proposed premises would be between $88,000 and $90,000 per annum, which is roughly equivalent to the annual rental of the existing shop in Unley Shopping Centre.
The additional space available in the proposed premises would enable Liquorland to conduct a very different style of liquor retail trading operation. Instead of being described as a Vintage Cellars store, the store would be re-named a “Quaffer’s” store.
There are at the present time some four other Quaffer’s stores conducted by Liquorland, two in Sydney and two in Melbourne. Mr Francis was involved in establishing the two Quaffer’s stores in Melbourne, which are situated respectively at Taronga, about eight kilometres from the Central Business District and at Mount Waverley, which is somewhat further out of the city.
In the Licensing Court a series of photographs of the Taronga store was tendered, together with a video which, inter alia, depicts the interior of the store.
The Taronga store has a retail space of approximately 1,800 square metres, an area which Mr Francis conceded was larger than necessary. However, the essence of the Quaffer style stores is that they utilise a large retail selling area of a minimum of 800 square metres. Liquorland’s policy is to site such stores on an arterial road in an area populated by what might be described as upper middle class residents.
Quaffer’s stores offer a large variety of lines. For example, the stock list tendered in evidence for the proposed store comprised in excess of 4,000 lines.
While there would be no restraint on the purchase of one or two bottles, the marketing emphasis would be on the purchase of larger quantities at discounted prices. Financial benefits would be offered to encourage customers to buy a case of wine, for example, which could be a mixed case.
Substantial back-up stock of all lines would be held, with a view to ensuring that a customer who wished to buy a quantity of any particular line would be assured of sufficient stock being available.
The Quaffer’s operations feature daily tastings of up to twenty or thirty wines kept open on the tasting table, with occasional tastings which Mr Francis described as “large-scale” events which could be of 100 wines.
Regional wine tastings are encouraged, featuring winemakers from particular areas.
Compared with an average purchase at Unley Vintage Cellars of approximately $29 per head, based on its experience with its other Quaffer’s stores, Liquorland anticipates that the proposed store would be likely to involve an average purchase of $55 per head. In its first year it estimates a turnover of $130,000 per week, double that of Unley Vintage Cellars.
Given the characteristics of the type of operation exemplified by the Quaffer’s stores, Mr Francis’ evidence was that even if the size of Unley Vintage Cellars was doubled, the premises would not be suitable for a Quaffer’s style operation.
Having regard to the matters to which I have so far referred, the underlying reasons why Liquorland sought to remove its Unley licence are clear. In the first place, there are a number of drawbacks associated with its present operation, largely attributable to the constraints imposed by the small size of the existing premises and the lack of rear access for deliveries. In the second place, even if those premises were enlarged by the addition of the space available in the vacant adjacent premises, there would not be enough space to sustain the marketing operation which Liquorland wishes to establish.
The Locality
Identification of the factors which may be taken into account in defining the relevant locality for the purposes of applications under the Licensing Act has been the subject of comment by this Court over many years.[1] In this case, much evidence was given as to the demographic characteristics of the area surrounding the Unley Shopping Centre.
[1] See, for example, Buttery v Muirhead and Ors [1970] SASR 334 per Zelling J at 352, Hoban’s Glynde Pty Ltd and Ors v Firle Hotel Pty Ltd and Ors (1973) 4 SASR 503 and Nepeor Pty Ltd v Liquor Licensing Commission and Ors (1987) 46 SASR 205 per von Doussa J at 214 et seq.
In particular, Mr Burns, a planner, offered a report and gave evidence on the matter.
It appears from his evidence that there is a reasonably clearly defined area which he described as the Unley Shopping Precinct lying between Greenhill Road, Goodwood Road, Cross Road and Fullarton Road. This area comprises a resident population of the order of 22,000, which features a higher proportion in the age group between 18 and 49 years compared with the average to be found in the rest of the Adelaide metropolitan area. Furthermore, there is a higher proportion of fully-owned dwellings in the Unley Shopping Precinct than is the average elsewhere in the Adelaide metropolitan area. It appears that in this area the proportion of the population in the mid to high income brackets is significantly higher than is the case for metropolitan Adelaide as a whole.
No doubt it was these features which brought Liquorland to the view, as expressed in Mr Francis’ evidence, that the proposed site is ideally suited for a Quaffer’s style store.
Within the Unley Shopping Precinct as described by Mr Burns are situated a number of other licensed premises comprising either hotels or liquor stores. A map was tendered in evidence indicating the position of some 31 licensed premises, the majority of which were within the Precinct. Two hotels with both drive-in and walk-in bottle shops, namely, the Unley-on-Clyde and the Cremorne Hotel, have frontages to Unley Road and are located on either side of Unley Shopping Centre in close proximity to it. Two other hotels, the Arkaba Hotel and the Edinburgh Hotel are outside of the Unley Shopping Precinct, but both are very well stocked with packaged liquor and for sale off-premises undoubtedly service some of the demand within the precinct.[2]
[2] In appropriate cases, regard may be had to the extent to which licensed premises outside the relevant locality are capable of servicing part of the demand within it: see Woolies Liquor Stores Pty Ltd v Seaford Rise Towers and Ors (2000) 76 SASR 290.
I have no doubt that the relevant locality for the purposes of the Act approximates the Unley Shopping Precinct, which in turn corresponds with the area which Ms Schmidt, the shopping centre manager of Unley Shopping Centre, described as the main area from which the customers of the shopping centre are drawn.
One would have to conclude that residents of the Unley Shopping Precinct are well served with licensed premises offering off-premises sales of packaged liquor, and further, that a number of those outlets are in close proximity to the Unley Shopping Centre as well as to the proposed premises.
It is unnecessary further to comment upon the extent or features of the relevant locality or on the facilities offered by the other licensed premises within the locality, as this is not a case in which those matters have any impact upon the critical issues upon which the appeal stands to be resolved.
The Onus on the Grant or Removal of a Retail Liquor Merchant’s Licence
Counsel for both Liquorland and for the objectors sought to draw support for their respective arguments from the history of the various changes which have occurred in the provisions in the various Liquor Licensing Acts which define the test to be met by an applicant for the grant or removal of a retail liquor merchant’s licence and its precursor, the retail storekeeper’s licence.
The legislative history relative to the grant of such a licence is summarised in the judgment of Doyle CJ in Woolies Liquor Stores Pty Ltd v Carelton Investments Pty Ltd and Ors.[3]
[3] (1998) 73 SASR 6.
As was pointed out by Doyle CJ in that case, a feature of that history is the progressive erosion of the policy that a full publican’s licence, now known as a hotel licence, should be regarded as “a central feature of the liquor licensing system”.[4] That policy was manifest in the Licensing Act 1967 which by s 22(2) obliged an applicant for a retail storekeeper’s licence to satisfy a particularly onerous test, namely, to demonstrate that the “public demand for liquor cannot be met by other existing facilities for the supply of liquor in the [relevant] locality ...”. That requirement, peculiar to the grant of a retail storekeeper’s licence, was superimposed upon the requirement found in s 47(a) of that Act for an applicant for almost every class of licence to satisfy a more generally expressed test involving assessment of public need in the relevant locality.
[4] Ibid per Doyle CJ at 8.
That the test to be satisfied for the grant of a retail storekeeper’s licence was so onerous was one of the “protections against competition .... designed to safeguard the profitability of publicans ...”.[5]
[5] Lincoln Bottle Shop Pty Ltd v Hamden Hotel Pty Ltd and Ors (No 2) (1981) 28 SASR 458 per King CJ at 461.
Over the course of time the “move towards a less regulatory approach to liquor licensing”,[6] apparent in amendments to the 1967 Act and continued in the Liquor Licensing Act 1985, resulted in a progressive reduction in the types of licence with respect to which the grant was predicated upon a requirement to prove need of any kind. By the time of the enactment of the Liquor Licensing Act 1997, the requirement to prove a need for the grant of a licence applied only to applicants for a hotel licence or a retail liquor merchant’s licence.
[6] Woolies Liquor Stores Pty Ltd v Carelton Investments Pty Ltd and Ors (supra) per Doyle CJ at 9.
That requirement is now to be found in s 58 of the 1997 Act, which is as follows:
“(1)An applicant for a hotel licence must satisfy the licensing authority by such evidence as it may require that, having regard to the licensed premises already existing in the locality in which the premises or proposed premises to which the application relates are or are to be situated, the licence is necessary in order to provide for the needs of the public in that locality.
(2)An applicant for a retail liquor merchant’s licence must satisfy the licensing authority that the licensed premises already existing in the locality in which the premises or proposed premises to which the application relates are, or are proposed to be, situated, do not adequately cater for the public demand for liquor for consumption off licensed premises and the licence is necessary to satisfy that demand.
(3)A reference to licensed premises already existing in a locality extends to premises in that locality, or premises proposed for that locality, in respect of which a licence is to be granted, or to which a licence is to be removed, under a certificate of approval.”
It will be seen that sub-section (1) relating to the grant of a hotel licence and sub-section (2) relating to the grant of a retail liquor merchant’s licence, provide for different tests, both relating to the needs of the public or public demand for liquor in the relevant locality.

But the onus to be satisfied for the grant of a retail liquor merchant’s licence, although cast in terms which represent a slight relaxation of the stringency which characterised the corresponding provisions in the earlier Acts, is still more onerous than the test for the grant of a hotel licence. The fact that there remains this difference in the two tests represents the last surviving vestige of the policy of protection for the holder of a hotel licence against undue competition.
So far I have dealt with considerations more particularly relevant to the grant of a retail liquor merchant’s licence. The reason why I have done so is because an understanding of the history of the provisions relating to a grant of such a licence is necessary in order properly to understand the present requirements for removal of such a licence. Those requirements are to be found in s 61 of the Act:
“(1)An applicant for removal of 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 to which licence is to be removed, the licence (sic) is necessary in order to provide for the needs of the public in that locality.
(2)An applicant for the removal of a retail liquor merchant’s licence must satisfy the licensing authority that the licensed premises already existing in the locality to which the licence is to be removed do not adequately cater for the public demand for liquor for consumption off licensed premises and the removal of the licence is necessary to satisfy that demand.
(3)A reference to licensed premises already existing in a locality extends to premises in that locality, or premises proposed for that locality, in respect of which a licence is to be granted, or to which a licence is to be removed, under an existing certificate of approval.”
It will be seen that, on the face of it, the requirements for removal of both a hotel licence and a retail liquor merchant’s licence are expressed in terms which replicate the test for the grant of a licence in each category, as set out in s 58 of the Act.
That the legislative provisions dealing with removal of a licence should be expressed in that way has the potential to create an anomalous situation where approval is sought for removal of a licence to premises which may be only a short distance away from the existing premises, both premises being within the relevant locality.
A similar anomaly arose under the 1985 Act. In the context of that Act, the matter was considered by the Full Court in New World Supermarkets Pty Ltd v K. Pandelis Nominees Pty Ltd and Ors.[7]
[7] Full Court, Jacobs, Cox and Matheson JJ, Judgment No 2586, 10 July 1990 (unreported).
Section 38 of the 1985 Act was as follows:
“(1)Subject to subsection (2), a retail liquor merchant’s licence shall not be granted in respect of, or removed to, premises unless the licensing authority is satisfied that the public demand for liquor in the locality in which the premises are situated cannot be met by other existing facilities for the sale of liquor.
(2)Subsection (1) does not apply to the removal of a retail liquor merchant’s licence to premises situated not more than 500 metres from the premises from which its removal is sought.”
In Pandelis, the appellant applied to the Licensing Court for removal of a retail liquor merchant’s licence from an address in Whyalla to another address at Whyalla Norrie. The premises were more than 500 metres apart, but the case proceeded on the footing that what the applicant was seeking to do was to remove its licence from one place in the locality to a different place in the same locality.
The application was refused by the Licensing Court on the footing that s 38(1) was not satisfied. In the course of his judgment in the Full Court, Jacobs J (with whom Cox and Matheson JJ agreed) observed:[8]
“... the issue on this appeal is whether it [s 38] speaks at all to a case such as this. It is to be observed in the first place that it applies to a new licence as well as to removal of an existing licence, and it looks to the ability of other licensed premises in the locality to meet the public demand for liquor. Both its language and its history are consistent with the view that its concern is with a new, ie an additional licence in the locality, whether by grant of a new licence, or removal. In the case of removal, that necessarily implies removal from another locality, for otherwise it is not a new licence in the locality, and any other construction gives no meaning or effect to the word ‘other’. What has to be determined under s 38 is whether the public demand for liquor (not the needs of the public) can be met without the intrusion of another licence into the locality. The very purpose of the barrier erected by s 38 was to prevent undue or indiscriminate proliferation of licences. It therefore follows that s 38 cannot speak sensibly at all to removal within a locality.
That conclusion can be tested in another way. The decision of the learned judge that s 38 is an insurmountable obstacle to the present application involves a finding that the public demand for liquor in the locality can be met without the applicant’s existing licensed premises, notwithstanding that those premises help to meet the demand. That implies that its existing licence is redundant, which is in itself an anomaly; but there is a further anomaly, for it follows that the existing licence can continue to operate and meet the public demand in its present situation in the locality, but is not necessary to meet the demand in the locality as a whole if moved to a different part of the same locality.
The Act in my opinion should not be given a construction which leads to that unsatisfactory and extraordinary result, more especially when the test under s 67 has been satisfied, and in my view the better construction dictated by the language of s 38, and the significance of the word ‘other’, is to confine its operation, in the case of removal, to removal from one locality to a different locality, ie to the introduction of a new licence in the locality to meet the demand that is not being met by other licences in the locality.”
[8] Ibid 5.
A similar question arose in Woolies Liquor Stores Pty Ltd v Port Pirie Licensed Victuallers Association and Ors.[9] That case concerned the removal of a retail liquor merchant’s licence from an address at Port Pirie to other premises about 200 metres away. Section 38 of the 1985 Act was not of application, as the two premises were less than 500 metres apart.
[9] Judgment No S3956.1, 17 June 1993, Matheson, Legoe and Duggan JJ (unreported).
However, the provision in the 1985 Act which applied to removals generally was of application. That was s 67, the relevant terms of which were:
“(1)An applicant for the removal of a ... 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 ... to which removal of the licence is sought are ... situated, a licence of the class to which the application relates is necessary in order to provide for the needs of the public in that locality.
(2)A reference in this section to licensed premises already existing in a locality extends to premises in that locality ... in respect ... to which a licence is to be removed, in pursuance of a certificate under this Part.”
In Woolies Liquor Stores v Port Pirie Licensed Victuallers Association, the Full Court declined to follow the same line of reasoning as that which was adopted by Jacobs J with reference to s 38 of the 1985 Act. In his judgment, Matheson J, after citing the judgment of Jacobs J in Pandelis, observed:[10]
“In the case of Pandelis, the Licensing Court judge found that the requirements of s 67 had been met, and consequently the Full Court did not have to express a view on whether the section actually applied at all in that case. I agree, however, with Mr Firth, counsel for the respondents, that the judgment of Jacobs J appears to imply that s 67 was properly considered by the Licensing Court. Moreover, his Honour was at pains to stress differences in the wording and application of the two sections. Section 38 applies to an application for a new licence as well as for the removal of an existing licence. It looks to the ability of other licensed premises, whereas the word ‘other’ is not included in s 67. Further, as Jacobs said:
‘What has to be determined under s 38 is whether the public demand for liquor (not the needs of the public) can be met without the intrusion of another licence into the locality.’
Section 67, unlike s 38, applies equally to removals under and over 500 metres. Section 38 only applies to retail liquor merchant’s licences, whereas s 67 applies to all Category A licences, including hotel licences.
I also agree with Mr Firth that the fact that the proprietors of Jubilee Cellars have a retail liquor merchant’s licence does not imply that there is a present need for that licence at the site in that locality. It mere implies that such a need existed when it was granted, and that the licensee is entitled to stay there, whether there is a present need or not. Needs may have changed since the original grant, and it seems to me entirely reasonable that Parliament intended that the court should look at need again when a removal is applied for, even if only to premises within the same locality.”
[10] Ibid 5-6.
It is unnecessary for me to express a view as to whether Woolies Liquor Stores v Port Pirie Licensed Victuallers Association was correctly decided, and whether the omission of the word “other” from s 67 of the 1985 Act warranted the distinction drawn by Matheson J between that case and Pandelis.
In this case, counsel for the objectors drew attention to the fact that the expression “other existing facilities”, which was regarded as significant in Pandelis, more particularly the use of the word “other”, does not appear in s 61 of the 1997 Act. Furthermore, subsection (2) of the 1997 Act, it was suggested, was in terms which should be construed in the same way as s 67 of the 1985 Act was construed in Woolies Liquor Stores v Port Pirie Licensed Victuallers Association.
I would not be prepared to approach the construction of s 61 in that way.
In the first place, s 61(2) is drafted in rather different terms from any of its predecessors. I would not be prepared to approach the construction of it by making such a nice comparison between the language which appears in s 61 and that which was used in its predecessors. To do so would be to overlook the eminently sensible and practical considerations which led the court in Pandelis to read down the application of s 38 of the 1967 Act in its application to removals within the same locality.
For reasons similar to those expressed by Jacobs J in Pandelis, it would be a strange and anomalous result if s 61(2) was to oblige an applicant for removal of a retail liquor merchant’s licence to have to face all over again the very onerous test of need which would be applicable if the applicant was to apply for a new licence in the same locality.
Ipso facto, an applicant for removal of a retail liquor merchant’s licence, in order to have obtained the licence in the first place, would necessarily have satisfied the onus of proving that the licensed premises “already existing in the locality” did not “adequately cater for the public demand for liquor for consumption off licensed premises”. It would make no sense to oblige the applicant for subsequent removal to satisfy the same onus when the effect of the removal would be simply to maintain (or perhaps improve) whatever contribution the applicant was making towards the satisfaction of the public demand for liquor in the locality.
As Jacobs J observed in Pandelis, if such an approach was to be adopted, “... the existing licence can continue to operate and meet the public demand in its present situation in the locality, but [must be regarded as] ... not necessary to meet the demand in the locality as a whole if moved to a different part of the same locality”.
If that view was to prevail, the heavy onus applicable to the grant of a new licence in the locality would have to be satisfied, by an applicant who simply wished to move one door away from premises which, through no fault of the licensee, might have ceased to be available to him or her. Such a view ignores the fact that the obvious legislative intent behind the replication of the text for a new licence in the provision dealing with removal, is to address the situation where the removal is to a new locality, and if permitted, would be equivalent to the grant of a new licence in that locality.
In my view, the only real question which arises is whether or not, in order to avoid the absurd results which would otherwise ensue, the language of s 61(2) can properly be construed so that its application is limited to a situation in which the removal is from one locality to another.
In my opinion, the section ought properly to be construed in that way. It seems to me that the words “... the licensed premises already existing in the locality to which the licence is to be removed ...” are apt to identify a situation in which there is a removal to another locality. The words do not, in my view, have a sensible application where the removal is within the same locality.
This does not mean, as was suggested during argument, that there is “no test applicable to a removal of either an hotel licence or a retail liquor merchant’s licence if the removal is not from outside the locality”.[11] An applicant for removal would still have to satisfy the licensing authority that the proposed premises to which removal was sought were suitable to be licensed, and did not unduly interfere with the amenity of the residents in the vicinity of the new premises.
[11] Written outline of argument of the hotel objectors and the AHA, para 2.8.
Specific provisions as to matters of that kind, and other matters which an applicant for removal must prove to the satisfaction of the licensing authority, are set out in s 60 of the Act:
“(1)An applicant for the removal of a licence to premises or proposed premises must satisfy the licensing authority-
(a)    that the premises to which removal of the licence is sought are, or, in the case of premises not yet constructed, will be, of an appropriate standard for carrying on business under the licence; and
(b)    that the removal of the licence would be unlikely-
(i)to result in undue offence, annoyance, disturbance or inconvenience to people who reside, work or worship in the vicinity of the premises; or
(ii)to prejudice the safety or welfare of children attending kindergarten, primary school or secondary school in the vicinity of the premises.
(2)An application for the removal of a licence to premises or proposed premises cannot be granted unless the licensing authority is satisfied-
(a)    that any approvals, consents or exemptions that are required under the law relating to planning to permit the use of the premises or proposed premises for the sale of liquor have been obtained; and
(b)    that any approvals, consents or exemptions that are required by law for carrying out of building work before the removal of the licence takes effect have been obtained; and
(c)    that any other relevant approvals, consents and exemptions required for carrying on the proposed business from the premises have been obtained.
(3)...........”
Apart from the matters referred to in that section of the Act, if the removal was to premises from which the service capable of being offered to satisfy the public demand for liquor in the locality would be impaired rather than maintained or enhanced, no doubt that is a matter which would go towards the exercise of the discretion.
During the course of argument, reference was made to s 77 of the Act, which creates a general right of objection to any application. Specifically, as to applications for removal of a retail liquor merchant’s licence, the following sub-section is relevant:
“77(5)An objection may be made on one or more of the following grounds:
...........
(c)in the case of an application for the grant or removal of a retail liquor merchant’s licence - that the grant of the application is not necessary in order to provide for the public demand for liquor for consumption off licensed premises in the area in which the premises or proposed premises to which the application relates are situated; ...”
Some of the objectors to the application in question raised that ground.
I think it is unfortunate that this ground of objection is cast in such different terms from s 61. That it does so may be explained by reference to the fact that the wording of the sub-section appears to have been directly transposed from the corresponding section in the 1985 Act, namely, s 85(4)(b) of that Act, apparently without regard to the differences in context in the 1997 Act.
Be that as it may, I would not construe s 77(5)(c) as providing a ground of objection which would negate the construction which, in my view, is the proper interpretation to be placed on s 61(2).
It remains to deal with the question of the exercise of the discretion under the 1997 Act. Under the 1997 Act, the licensing authority is given a wide discretion to grant or refuse an application, as was the case in the earlier Acts.
Section 53 of the 1997 Act states:
“(1)Subject to this Act, the licensing authority has an unqualified discretion to grant or refuse an application under this Act on any ground, or for any reason, the licensing authority considers sufficient (but is not to take into account an economic effect on other licensees in the locality affected by the application).
(2)A licensing authority should not grant an application as a matter of course without proper inquiry into its merits (whether or not there are objections to the application).
(3)A licensing authority may, on such conditions (if any) as it thinks fit, vary or waive compliance with formal requirements relating to an application.”
Authorities which emphasise the breadth of the discretion exercisable by the Licensing Court in the context of the precursors to s 53 of the present Act are of equal application. The discretion is “the widest of possible discretions”,[12] although it is doubtful that it might properly be used to enable a grant to be made if specific criteria for such a grant, to be found elsewhere in the Act, are not met.[13] That is not the case here.
[12] Dalgety Wine Estates Pty Ltd v Rizzon (1979) 141 CLR 552 per Stephen J at 566 and per Mason J at 572. And see Lincoln Bottle Shop Pty Ltd v Hamden Hotel and Ors (No 2) (1981) 28 SASR 458 per King CJ at 463 and Buttery v Muirhead and Ors [1970] SASR 334 per Zelling J at 350.
[13] Milne v Pope and Belair Cellars Pty Ltd (1972) 4 SASR 45 per Bray CJ at 48.
It should be noted that a most important change appears in s 53, in comparison with its predecessors. Section 53(1) provides that the licensing authority “... is not to take into account an economic effect on other licensees in the locality affected by the application”. That provision should be read together with s 3(e), which enumerates as one of the objects of the 1997 Act “to encourage a competitive market for the supply of liquor”.
In the result, it was incumbent upon the court to approach the matter with a view to encouraging competition, and furthermore, to ignore the economic impact of the removal upon the trading operation of the other licensees in the locality.
The Judgment of the Licensing Court
In his reasons for decision, the learned Licensing Court judge, after referring to Pandelis and Woolies Liquor Stores v Port Pirie Licensed Victuallers Association, expressed the view that:
“... the applicant in this case is required to ‘overcome’ the provisions of s 61(2).”

He then proceeded to define the locality. After referring to various features of the evidence, he concluded:
“I do not accept that the already existing licensed premises in the locality are somehow inadequate in catering for the liquor demand. Nor do I accept that the removal is necessary to satisfy that demand.”
For the reasons which I have given, in adopting that approach, the learned Licensing Court judge applied the wrong test. It follows that the conclusion which he reached cannot be sustained. His order dismissing the application for removal should be quashed.
This leaves the question as to how this Court should dispose of the appeal.
Disposal of the Appeal
It would be open for this Court to remit the matter for re-hearing before another judge.
But the case as presented in the Licensing Court was lengthy. A large number of witnesses was called and there was an exhaustive examination of the demographics of the locality and other relevant considerations. It would be unfortunate if the applicant was obliged to start afresh and present its case again in the Licensing Court.
Clearly, the requirements of s 60 of the Act were met.
For the reasons which I have given, the only real issue in the case is whether or not, in the exercise of the discretion pursuant to s 53 of the 1997 Act, the application should be refused. It seems to me that this Court is in as good a position as was the learned Licensing Court judge to address that question.
It was suggested by counsel for the objectors that in fact the decision of the learned Licensing Court judge was one which he reached in the exercise of the discretion. I do not think that to have been the case, having regard to the conclusion expressed at the foot of his reasons in the passage which I have quoted above.
However, he did make a number of observations, some of which might be thought to be pertinent to the exercise of the discretion. Under the heading “The Proposal Generally” he said.
“I have no quarrel with the concept at all. It is a very sensible commercial decision which will enhance business and profits substantially. But I must look at a wider field. Public interest and the provisions of the Liquor Licensing Act are this Court’s domain. The proposal does not fit kindly within that domain.
The public, as represented by the witnesses called by the objectors (I note not one from the applicant) do not want it. Indeed I am not surprised that the applicant called no such evidence. I would think and infer that there would be very few indeed who would favour a shift of their preferred bottleshop from the area of their preferred major shopping centre which would require a special trip with attendant traffic difficulties. Whilst I generally accept Mr Young’s views I do have my concerns (and I think the public would too) that driving away from the new premises and getting onto the very busy Unley Road would be an undesirable and sometimes awkward task. But that apart I detect a groundswell of public opinion against this proposition notwithstanding the greater size and greater range of the proposal. Going back to parking too, I think the parking area at the shopping centre to be far more ‘customer friendly’ than at the proposal. Mr Siow made criticisms of the latter and some of them had validity though not so compelling as to refuse the application on those grounds. Entry and exit onto Unley Road is also a much easier task than at the proposal.
I have gone on long enough. I hope I have dealt with all major issues.”
In the first paragraph of that passage, the learned Licensing Court judge refers to commercial considerations, public interest and the provisions of the Liquor licensing Act. In making those observations, he failed to refer to the need “to encourage a competitive market for the supply of liquor” which, as I pointed out, is one of the express objects of the 1997 Act,[14] and which is a consideration peculiar to that Act as compared with its predecessors.
[14] Section 3(e) of the Act.
Given the particular circumstances of the application with which he was dealing, this was an important consideration. It does not seem to me to be a matter to which, with respect to him, the learned Licensing Court judge has accorded sufficient weight.
The learned Licensing Court judge goes on to refer to the evidence given by the witnesses called by the objectors, and the fact that he detected “quite a groundswell of public opinion against” the application.
I do not consider that the evidence tendered in the case justified that conclusion.
Several residents were called who were regular shoppers at the Unley Shopping Centre and frequented the Vintage Cellars store at the Centre. They spoke of the convenience of being able to attend to most of their weekly shopping needs at the Centre, including the purchase of liquor, expressed satisfaction with the range of liquor available at the appellant’s present store, and expressed some concerns at the implications with respect to traffic and parking if it was to be removed to the proposed site.
It is not in the least surprising that some shoppers who find it convenient to frequent the Unley Shopping Centre and who live nearby might prefer to see the status quo preserved.
Although it is perfectly proper for the Licensing Court to take into account voiced demand or preferences by local residents, too much can be made of evidence of that kind. I repeat observations which I made in Sailmaster Tavern and Ors v Nemo Nominees Pty Ltd:[15]
“... the finding of a relevant need .... does not necessarily turn upon the cogency of a voiced demand. On the contrary, there are many other factors to be taken into account, some of which stem from the objective geographic and demographic features of the relevant locality, the knowledge of the licensing authority, which may be presumed without the need for evidence being called, of the nature and scope of the trading operations of the other licensed premises in the locality, the general understanding of the licensing authority as to public preferences, tastes and needs, and its understanding of the general nature of the particular needs of sections of the community such as tourists. The fact that it has become customary in the Licensing Court, at least in contested applications, to call a number of lay witnesses to give evidence of voiced demand or of particular unmet ‘needs’, should not obscure the fact that in dealing with all applications the licensing authority is entitled to bring to bear its experience and understanding of the matters to which I have referred, ...”
[15] Full Court (Perry, Cox and Lander JJ), 20 October 1995, Judgment No S5266, at 7-8.
In dealing with this particular application, even without the evidence called to that end, the Court could safely assume that there would be a number of local residents who shopped regularly at the Unley Shopping Centre and who might find it convenient to continue to purchase their liquor requirements at the existing liquor store.
The anticipated patronage at the proposed premises may be inferred from Mr Francis’ evidence of the anticipated turnover, which evidence was not placed under serious challenge. That evidence leads me to conclude that the premises to which removal is sought, and the style of the trading which Liquorland proposes to conduct at the premises, could fairly be assumed to meet the convenience of as large, or even larger proportion of the population within the locality than is presently the case with the existing store.
The learned Licensing Court judge refers to the question of parking and ingress and egress for vehicles travelling on Unley Road, but it seems to me that the considerations to which he had regard in that respect were not such as might properly lead to the exercise of the discretion against the grant. Parking and traffic considerations had separately been addressed and resolved in Liquorland’s favour by the Environment Resources and Development Court. Although, as the learned Licensing Court judge indicated, he did not regard himself as bound by the decision of that court, it seems to me that the circumstances would be rare indeed it which it would be proper for the Licensing Court to revisit planning considerations associated with an application and determine them inconsistently with a view expressed by the Environment Resources and Development Court.
In all the circumstances, it seems to me that there are no considerations which should lead to the exercise of the discretion against permitting the proposed removal. The removal is over a comparatively short distance, and Liquorland’s ability to service the local demand for off-premises sale of packaged liquor would, if anything, be substantially enhanced if the application was to be granted.
I would allow the appeal and quash the order of the learned Licensing Court judge dismissing the application for removal.
I would refer the matter back to the Licensing Court to issue a certificate of approval pursuant to s 62 of the Act, which will provide an opportunity for that court to address any practical considerations which might have a bearing upon the alteration and equipping of the proposed premises to fit them for their intended use. The Licensing Court must, in conformity with these reasons, effectively grant the application for removal, and any conditions to be imposed under s 62 of the Act must be confined to the making ready of the proposed premises.
If it does not think it necessary to issue a certificate of approval under that section, it should simply make an order granting the application.
GRAY J. I agree that the appeal should be allowed for the reasons published by Perry J.

[2001] SASC 232

18 July 2001