Liquorland (Australia) Pty Ltd v Duke Unley Pty Ltd & Ors No. Scciv-03-1408

LIQUORLAND (AUSTRALIA) PTY LTD v
DUKE UNLEY PTY LTD AND ORS
[2004] SASC 113
Full Court: Prior, Debelle and Bleby JJ

PRIOR J: I agree with Justice Debelle. The appeal should be allowed, the judgment of the Licensing Court set aside and the application for a retail liquor merchant’s licence dismissed.
DEBELLE J. This is an appeal by leave against a decision of the judge of the Licensing Court granting a retail liquor merchant’s licence in respect of premises at the Unley Shopping Centre.
The essential issue before the Licensing Court and on this appeal is whether the applicant for the licence, Duke Unley Pty Ltd (“Duke”) satisfied the requirements of s 58(2) of the Liquor Licensing Act 1997 which provides:
“(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.”
The Judge of the Licensing Court held that it had. Liquorland (Australia) Pty Ltd, which is one of the objectors to the application, appeals against the grant contending that the judge erred in reaching that conclusion.
It is important to understand the history lying behind this application.
A Liquor Store is Removed
The Unley Shopping Centre is a large district shopping centre with a wide variety of shops. It used to include a liquor store. That liquor store had been operated by Liquorland (Australia) Pty Ltd (“Liquorland”) at least since the early 1990s. Liquorland had purchased existing premises for which a retail storekeepers’ licence had already been granted. The premises were then called “Vintage Cellars”. In July 2001 Liquorland succeeded in obtaining an order granting the removal of the licence to new premises some 600 metres south on Unley Road. The new premises are called “Quaffers”.
The Unley Shopping Centre is on the west side of Unley Road. The new premises occupied by Quaffers are on the eastern side of Unley Road. The Quaffers store is considerably larger than the Vintage Cellars store. The shop floor area is some 820 square metres compared with the Vintage Cellars store whose area was 155 square metres. The Quaffers store stocks some 4500 lines of liquor as compared with 1500 lines which had been stocked at the Vintage Cellars store.
An Application by Woolies
In 2002 Woolies Liquor Stores Pty Ltd applied for a grant of a retail liquor merchant’s licence in respect of the former Vintage Cellars premises in the Unley Shopping Centre. On 27 September 2002 the Licensing Court refused the application on the ground that the applicant had not proved that the demand for liquor could not be met by existing facilities in the locality.
Two Applications by Duke
A little later, the first respondent Duke Unley Pty Ltd (“Duke”) applied to the Licensing Court for the grant of a retail liquor merchant’s licence. Duke is the owner of the Unley Shopping Centre. On 17 March 2003 the Licensing Court refused the application on the ground that Duke had not satisfied the requirements of s 58(2) of the Liquor Licensing Act.
On 15 April 2003, within one month of that order, Duke lodged in the Licensing Court a fresh application for a retail liquor merchant’s licence. The appellant was one of three objectors to the application. The other objectors were the proprietors of the Cremorne Hotel and the Unley on Clyde Hotel both of which are on Unley Road. On 26 September 2003 the Licensing Court granted the application.
The same judge of the Licensing Court heard all three applications as well as the removal application which resulted in the new Quaffers store. The appellant appeals against that decision. The other objectors did not appeal. They were joined as respondents. They supported the appellant’s contentions on the hearing of the appeal but did not present any separate argument.
The reasons of the Licensing Court judge are not a self-contained set of reasons dealing with all relevant issues. It is necessary to refer back to his earlier two decisions and indeed to his decision in respect of the application by the appellant to remove its licence to what is now the Quaffers store. That is highly unsatisfactory. Each set of reasons should be a discrete and complete set of reasons in which all necessary findings of fact may be found and the reasoning for the decision may be ascertained. The fact that this is a specialist jurisdiction does not relieve the Licensing Court judge of the necessity for including in his reasons all those facts to which he has had regard in the course of making his decision and his analysis of the relevant issues.
The Licensed Premises in the Locality
The judge found that the general locality was an area bounded by Greenhill Road to the north, Fullarton Road to the east, Cross Road to the south and Goodwood Road to the west. There is no issue as to the relevant locality.
A large number of licensed premises exist within the locality or on its borders. There are seven hotels and six premises the subject of a retail liquor merchant’s licence. I list the hotels and their location:
Cremorne Hotel                    -     Unley Road, Unley
Unley on Clyde  -     Unley Road, Unley
Goodwood Park Hotel         -     Goodwood Road, Wayville
Hyde Park Hotel                   -               Corner King William Road and Park Street, Hyde Park
Arkaba Hotel  -     Corner Fullarton Road and Glen Osmond Road, Fullarton
The Fountain Inn                 -     Corner Fullarton Road and Glen Osmond Road, Parkside
Earl of Leicester                   -     Leicester Street, Parkside
The Unley on Clyde Hotel is some distance north from the Unley Shopping Centre. The Cremorne Hotel is only 200 metres south but on the other side of Unley Road. The Cremorne Hotel was found by the judge to have a good range of liquor, particularly wines. The Arkaba Hotel was described as having a very substantial range of liquor available. There is no complaint about the range of liquor available at the other hotels.
There are six premises which the subject of a retail liquor merchant’s licence. In addition to Quaffers there is:
Goodwood Cellars               -     Goodwood Road, in the Goodwood retail area
Max’s Liquor Store             -     King William Road, Unley
Vintage Cellars  -     Glen Osmond Road, Fullarton
Fullarton Cellars                   -     Fullarton Road, Fullarton
Super Cellars  -     Glen Osmond Road, Parkside
Quaffers is the largest of these retail liquor merchants. Vintage Cellars is another large retail outlet with a wide range of liquor. There is no criticism of any kind of any of these retail liquor merchant’s licences. It is apparent that this area is very well catered with a range of liquor outlets at which liquor may be purchased for consumption off the premises.
The First Application by Duke
In its first application Duke had sought to satisfy the requirements of s 58(2), by proving a need for one stop shopping in particular by elderly people who are disabled and by those who did not have access to vehicular transport who found it difficult to purchase liquor at a point other than at the Unley Shopping Centre. In dismissing the application, the judge held that the evidence of need was given by witnesses who were not representative of the locality. Most witnesses resided within close walking distance of the Unley Shopping Centre. The judge identified five people who were elderly and disabled who were, he said, “truly disadvantaged” and who found it difficult to purchase liquor. However, he held that there was no sufficient evidence that they were representative of a sufficiently large number of people to justify the grant of a licence. The judge held that Duke had not adequately proved a sufficient degree of inconvenience to elderly persons. There was, he concluded, no evidence of such a number whose need could not be met having regard to the facilities already existing in the locality.
In refusing the application the court said:
“I have weighed up the preferences, desires, shopping habits, aversions and so on of the public as represented by these witnesses. I fully recognise there are some who do have quite significant even extreme difficulty in getting their liquor, I have spoken of them. How many they represent is unknown. In every locality such a group will be found. As to the rest I appreciate their desire to ‘one stop shop’ but, on balance, a refusal to permit this will not involve them in undergoing anything more than mere inconvenience. I have looked at what I know of the population overall and assessed whether I think there is a significant population who are inadequately catered for given the licensed premises available to them in the different parts of the locality particularly those quite close to the Unley Shopping Centre. I cannot so find except in the case of an unknown number, though probably of small significance, of frail and disabled people.”
The Second Duke Application
As might be expected from the fact that Duke lodged its second application within a month after the Licensing Court had refused its first application, there had been no change in the circumstances. As the judge found, the locality was the same. The number and nature of the facilities in the area were the same and they were at the same location. The locality remained one in which a large number of existing liquor outlets catered for those seeking to purchase liquor for consumption off the premises.
The case presented by Duke was essentially based on the same grounds as the first application, that is to say, that there was a demand for liquor by elderly or disabled persons and those without transport who wanted one stop shopping, and that demand could not be met by existing facilities in the locality. As the Licensing Court judge himself observed, the only difference between the two applications was that Duke produced more compelling evidence than it had on the hearing of its first application as to the difficulties encountered by elderly or disabled people or those without access to a car. The judge was satisfied that it proved the demand required by s 58(2). By implication he seems also to have been satisfied that existing licensed premises did not adequately cater for that demand, at least in respect of a “significant” population of elderly and carless persons, and that the grant of the licence was necessary to satisfy that demand.
The Licensing Court should be slow to depart from a previous decision, if a second application is made for a licence in respect of premises which are the same as those in which an earlier application has been refused: Harding Hotels Pty Ltd v Jatadd Pty Ltd (2001) 81 SASR 222 at 227 where Doyle CJ said:
“The Licensing Court should be slow to depart from a previous recent decision, if a second application is made for a licence in respect of premises after a refusal of an application. In the ordinary course of things one would expect the Court to grant a second application only if there is good reason to think that there has been a change in the public demand for liquor in the locality, or in the ability of the licensed premises in the locality to cater for that demand.”
I would qualify those remarks by saying that the position is a fortiori if the applications follow one another very quickly and that, assuming no error in the first decision, the Licensing Court should grant the second application only if there has been a material change in relevant circumstances. It is not enough to prove some changed factual circumstances. The changed facts and circumstances will also have to be of sufficient weight to justify a different conclusion: see Nuriootpa Vine Inn Hotel and Motel Pty Ltd v Licensing Court (Perry J, 13 December 1999, [1999] SASC 512, Unreported), at [17]. Because the Licensing Court is concerned with the public interest as opposed to private interests: Harding Hotels at [25] and because an application does not give rise to a lis inter partes, there is no room for the application of the principles of res judicata or issue estoppel.
The Judge’s Findings
The judge expressly had regard to the remarks in Harding Hotels. The judge described the differences between the two cases as being that Duke was able to produce more compelling evidence on the second application. For the reasons which follow, this was an instance of a case where the applicant was producing evidence to plug the gaps which had been demonstrated in the first application. In my view, it failed. There were in truth no changed circumstances sufficient to justify the grant of the retail liquor merchant’s licence.
The evidence on which the judge primarily relied was given by a Ms Rudd, a demographer. The judge said that her evidence established that a large quantity of people over the age of 65, whom the judge called “the elderly” lived in the locality. In 2001 they totalled 5,575 of the 35,000 who lived in the area, a little over one seventh. He found that many of this group, like younger persons, would have no difficulty in moving around the area and would have no difficulty in purchasing liquor.
He concluded that Ms Rudd demonstrated the existence of a significant sector of the public in this locality who might find it difficult to obtain liquor. However, he went on to find that those without a car or suffering a disability would be presented with “some difficulty”. The basis for this somewhat, indefinite, if not elusive finding was never articulated. The judge defined disabled persons as those who, because of their age, cannot drive or who have difficulty in walking long distances, as well as those confined to a wheelchair or who move about on an electric scooter.
The judge then referred to the evidence. He said:
“I heard from one witness without a car and whilst she did not exhibit any real difficulty in getting liquor I have no doubt some of that [sic] other carless in the community and living further away from liquor facilities than she did would have some difficulty and a bottleshop at Unley Shopping Centre would cure any problem they have.”
The judge did not define what he meant by “the community”. I presume he was referring to the people in the locality and I will proceed on that footing. The lack of logic in this reasoning is breathtaking. One of the issues was whether the licensed premises in the locality adequately catered for the needs of the public. Subsidiary issues were how many persons seeking to purchase liquor did not have access to a motor vehicle and whether those persons were, by contemporary standards, reasonably catered for by existing premises: Lovell v New World Supermarket Pty Ltd (1990) 53 SASR 53.
The judge then turned to examine the evidence of witnesses who were elderly and frail and who lived further from the Unley Shopping Centre than those witnesses who had been called on the first application. He found that they were representative of others. He had no doubt that they had serious difficulty in obtaining liquor in the locality because of their frailty. In reaching this conclusion he relied on the evidence of Mrs Stojani, noting that, although she was not frail, she genuinely found it difficult to purchase liquor. No doubt she does represent others as the judge found but it is apparent that her evidence did not amount to real inconvenience.
In the first Duke application, the judge identified five people whom he described as disadvantaged and who had severe difficulty, he said, in obtaining their liquor. All shopped at the Unley Shopping Centre and expressed the wish to purchase their liquor there. They were Mr and Mrs Green, Ms Siebert, Mrs Roach and Mrs Guehrer. All but Mrs Green gave evidence in both the first and second applications.
It is plain from Ms Siebert’s evidence that she does not have difficulty. She lives very close to Goodwood Cellars, although she says that its car parking arrangements are difficult. She did not like the service at Quaffers. She drives to work at Flinders Medical Centre so drives past a number of liquor outlets. Hers is plainly a case of mere convenience.
Mrs Guehrer has a car but shares it with her son. She walks to the Unley Shopping Centre. Her residence is as close to the Cremorne Hotel as to the Unley Shopping Centre. Hers is another case of mere inconvenience.
Mrs Roach suffers from multiple sclerosis although she does use a motor car. She has used Quaffers and the Cremorne Hotel.
Mr and Mrs Green are an elderly couple who live in a street immediately west of the Unley Shopping Centre. Mr Green goes to the shopping centre via electric scooter. Mrs Green walks to the centre. After the bottle shop had ceased to exist in the shopping centre, Mr Green has used the Cremorne Hotel to purchase his liquor. For Ms Roach and the Greens there is plainly a degree of difficulty but they do have access to liquor outlets close by. Notwithstanding their evidence, the judge did not find it sufficient to warrant granting the first application.
In the first Duke application, the Licensing Court judge described the evidence of the five other witnesses as to need as proving no more than inconvenience, in the case of one stating that she was determined to shop at the Unley Shopping Centre and was not prepared to consider any reasonable alternative. Those witnesses were Mr Mulchay, Ms McLeod, Mrs Almeida, Ms Patti and Ms O’Connor. They did not give evidence on the second application.
At the second hearing four new witnesses as to need were called. They had all purchased liquor at the shopping centre when the bottle shop had existed. They all wished to purchase liquor at the Unley Shopping Centre. They were called for the purpose of seeking to prove a desire to purchase liquor at the Unley Shopping Centre and to prove difficulties in obtaining liquor supplies. They were Ms Miller, Mrs Sandow, Mrs Stojani and Ms Trumble. Ms Miller lives in a retirement village about 100 yards from the Fullarton Cellars and a little further from the Arkaba Hotel. She does not buy substantial quantities of liquor. Her only reason for not using the Fullarton Cellars was that she did not wish to carry liquor home. Mrs Sandow is 81 years and lives alone. Her daughter takes her to Goodwood Cellars, which is not far from her residence, each weekend. She likes to browse and enquire about wine. She suffers a degree of inconvenience by not being able to purchase liquor as part of her one stop shopping but it is no more than mere inconvenience. Mrs Stojani, who is aged 68 years, lives not far distant from Goodwood Cellars and the Hyde Park Hotel. She could obtain her liquor supplies from each. She lives with her two sons. They purchase liquor for her. She says that she does not feel comfortable at the Hyde Park Hotel. She is not prepared to walk to Goodwood Cellars. Given that her sons already purchase liquor for her, hers is a case of mere inconvenience, a large part the result of being unwilling to try the Goodwood Cellars. Mrs Trumble is a married woman with two children. Her home is in Hart Avenue which is quite close to the Cremorne Hotel. She buys liquor for herself and her husband. It would be as easy for her to walk to the Cremorne Hotel as to the Unley Shopping Centre save for the fact that she must cross Unley Road. There are traffic lights to assist crossing Unley Road. Hers is another case of mere inconvenience.
The evidence of these witnesses reinforced the fact that this locality is very well catered for with licensed premises capable of adequately catering for the public demand at a number of points within and at convenient locations on the boundaries of the locality. These licensed premises are all relatively close at hand.

It is not usual for this court to have to re-examine the evidence in this way. It has been necessary to do so because the Licensing Court judge has not done so. His conclusion that it was better evidence than had been led on the first application is not justified. It is plain that it is not. This is a case where this court is in as good a position as the Licensing Court judge to determine its weight and effect. Its probative value does not in any sense depend on being able to see the witnesses give their evidence. It is capable of being assessed by reference to objective facts.
It is apparent from this analysis of the evidence given at the second application that it was little, if at all, better in quality than what had been led on the first application. Save perhaps in some isolated instances, it does not amount to evidence of anything more than mere inconvenience.
There was a good deal of evidence concerning a community bus which collects people from different points and takes them to the Unley Shopping Centre. Many elderly people use this service which is operated by the City of Unley. However, the evidence is not compelling. It establishes little more than that a number of elderly people patronise the Unley Shopping Centre who would, if it were available, obtain liquor at the liquor store in the shopping centre. There was other evidence from shopkeepers in that shopping centre proving that their clientele had a high proportion of elderly people. The evidence from Mr Angelopoulos, a director of Duke, also established that a significant portion of elderly people patronise the Unley Shopping Centre. When speaking of those who are elderly, Mr Angelopoulos was referring to those over the age of 55 years. Plainly, very few of those between the ages of 55 and 65 would fall into the disadvantaged group identified by the Licensing Court judge. Some customers, elderly and others, walk to the shopping centre. Others come on electric scooters. Some will have to walk or ride past existing facilities. In addition, the Cremorne Hotel is but 200 metres from the shopping centre.
This evidence establishes no more than that there are members of the public who would find it convenient to purchase liquor at the proposed premises and they include elderly and disabled persons. The evidence begs the question whether existing licensed premises adequately cater for those persons.
The findings made by the Licensing Court judge reflect this shortcoming. He has focused on the fact that elderly and disadvantaged people who visit the shopping centre speak of the convenience of purchasing their liquor there. There is very little examination of the extent to which this need cannot be met by existing facilities. There was a reference to those who live near the shopping centre who are not representative of the wider locality. There was a reference to Mrs Stojani who has already been mentioned. There was a reference to a Mrs Trumble who does not have a motor car but did not, as the judge found, have any difficulty in obtaining liquor because she lived close to what he described as “perfectly good liquor outlets”. However, the judge then went on to find “there have to be others who, as a probability, live further than her away from convenient outlets. There may not be a great number but certainly they have to be considered on the totality of the evidence”. On the judge’s own findings, they are relatively few. In addition, as the judge himself found, “many of the so called elderly would have no difficulty at all” in obtaining liquor. He added:
“In light of the licensed premises in this locality it is hard to imagine the young or the elderly who are freely ambulant and who have their own transport and have no physical or mental disability having any significant difficulty in getting their liquor.”
When analysed, the case that the elderly, the disabled, and those without access to a car is inadequate to establish the grant of a retail liquor merchant’s licence. The additional evidence which was led does not establish that the position was in truth materially different from that which obtained when Duke’s first application was refused.
When stripped to essentials, this was a case where the witnesses who were called naturally expressed disappointment that a liquor store no longer existed in the shopping centre and said they would patronise such a shop if it were to be found in the shopping centre. The case was essentially one grounded on the convenience of one stop shopping by the elderly, disabled and those without cars. This court has pointed out on several occasions that one stop shopping does not, standing alone, constitute a sufficient ground for the grant of a licence. It will have even less weight in cases where there are a large number of outlets from which liquor for consumption off the premises already exist in the locality. I refer to the remarks of King CJ in Lovell v New World Supermarket Pty Ltd (1990) 53 SASR 53 at 55-56:
“The desire for one-stop shopping is widespread in the community. The inability of customers to obtain their liquor supplies where they do the rest of their shopping may be irritating but it does not of itself mean that their demand for liquor cannot be met by existing facilities. It may be that the demand can be met, although perhaps at the price of some inconvenience to the customer. Inconvenience in gaining access to the required liquor is undoubtedly relevant to the determination of the question whether the public demand for liquor in the locality cannot be met by the existing facilities but it is not of itself decisive. If, for example, there existed an accessible first grade bottle shop at a distance of, say, 200 or 300 m from the shopping centre, it would be absurd to suggest that the demand for liquor by customers of the shopping centre could not be met simply because they would have to drive their cars a short distance from the general shopping centre in order to obtain their liquor. To attempt to provide access to a full range of liquor for everybody who is without the use of a motor car would result in a wholly undesirable proliferation of liquor outlets with consequent deterioration of the standards in the service of liquor which are necessary in the public interest. It is, however, a matter of degree. I repeat what I said in New World Supermarkets Pty Ltd & L H & B J Martin Pty Ltd v Liquor Licensing Commissioner and Jattadd Pty Ltd (unreported, Supreme Court, SA, King CJ, Legoe and Bollen JJ, 5 July 1989):
‘The section is satisfied if the public demand for liquor in the locality cannot be met without unreasonable difficulty and inconvenience. Distance and conditions of traffic play an important part in such a decision as is shown by Nepeor Pty Ltd v Liquor Licensing Commission (1987) 46 SASR 205. Entrenched shopping habits and aversions arising out of these and other considerations, if reasonable, are not to be disregarded.’”
In this case, Duke conceded that Quaffers was a store which stood out because of the very extensive range of liquor it provided. It has the most extensive range of liquor of any liquor store in this State. There are five other liquor stores within or on the boundaries of the locality. Those on the boundaries mainly serve those who reside within the locality. In addition, there are seven hotels and, the Cremorne Hotel, the nearest of those hotels to the proposed premises, has what the judge found to be a good range of liquor and in particular wine. A number of the hotels and liquor stores (including the Cremorne Hotel) have a delivery service. The judge discounted the evidence as to delivery services on the ground that there were those who wished to be able to browse and exercise a choice and others who do not like delivery of alcohol to their door. While that may be so, the fact that delivery services are available is a relevant factor, albeit one which may not carry a lot of weight.
It must be presumed that the Licensing Court judge, who has a long experience in this jurisdiction, was aware of these outlets. However, his reasons do not mention them except in a very general and cursory way. More significantly he has not had any sufficient regard to the spread of these 13 outlets throughout the locality and to the consequence that this locality is very well served with bottle shops and hotels. The judge has failed to weigh the voiced need of the witnesses, including elderly and disabled people, against the facilities which already exist. It does not follow that, because a large number of elderly or disabled people or people without cars, patronise the Unley Shopping Centre and seek to purchase liquor there that the criteria in s 58(2) have been satisfied. The demand from those members of the public only serves to prove the first of the two requirements of s 58(2) that there is a need, a demand, for liquor at the site. It does not, standing alone, prove the second requirement that the licensed premises that already exist in the locality do not adequately cater for that demand and that the grant of the licence is necessary to satisfy that demand.
When the evidence is analysed it is quite clear that Duke has not proved that second requirement. This was essentially a case centring on those who are elderly, disabled and without cars. When the evidence is analysed that need is not very substantial and is a need met by existing facilities. Almost all of the additional witnesses who were called had quite convenient access to licensed premises near where they reside. In this locality, which is well catered for by a relatively large number of licensed outlets selling liquor for consumption off the premises, it is relatively easy for most in the locality, even the elderly, disabled and those without cars, to purchase bottled liquor. For those in nursing homes or retirement villages, liquor can be made available. A number of the elderly and disabled have their liquor purchased for them by members of their families as one might realistically expect.
One difficulty with the findings are that they overlook Ms Rudd’s evidence that of the population of the City of Unley over the age of 60 years the percentage who are over the age of 80 years is much higher than for the rest of the metropolitan area, being some 40 per cent, compared with 20 per cent for the rest of the metropolitan area. Of those over the age of 80 years, a relatively higher percentage will be living in retirement villages and nursing homes. The sale of liquor in a nursing home or retirement village does not constitute a sale of liquor for the purposes of the Liquor Licensing Act, and therefore liquor may be sold without contravening the Act: Regulation 8 of the Liquor Licensing (General) Regulations 1997. There was no evidence of the extent to which elderly people living in nursing homes or retirement villages were able to purchase liquor. In addition, the evidence suggested, as one might expect, that those who live in nursing homes and retirement villages often have members of their respective families obtain liquor for them.
The grant of the application would result in three sets of licensed premises within 600 metres. Given that one of the two existing licensed premises has the most extensive range of liquor in the State and the other has been found to have a very good range of liquor, it is apparent that the application must fail. The more detailed analysis of the evidence only serves to reinforce that conclusion.
In the result, Duke did not on its second application prove a different case. It was the same case with Duke seeking to plug gaps in the evidence called on the first application. Duke sought to argue the same issues with greater force. In my view, it failed on both counts.
For these reasons I would allow the appeal, set aside the judgment of the Licensing Court and refuse the application.
BLEBY J: I agree that the appeal should be allowed. I agree with the orders proposed by Debelle J and I agree with his reasons.

[2004] SASC 113

23 April 2004