Liquorland (Australia) Pty Ltd v Woolworths Limited

[2018] SASCFC 31

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

LIQUORLAND (AUSTRALIA) PTY LTD v WOOLWORTHS LIMITED AND ORS

[2018] SASCFC 31

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Parker)

8 May 2018

GAMING AND LIQUOR - ADMINISTRATION - LIQUOR LICENSING - APPLICATION FOR A LICENCE - APPLICATION HEARING - MATTERS FOR CONSIDERATION - WHETHER REQUIRED FOR NEEDS OF PUBLIC - SOUTH AUSTRALIA

The appellant applied for a retail liquor merchant’s licence for proposed premises at the Park Holme Shopping Centre.

A Judge of the Licensing Court refused the application because the appellant had not satisfied the prerequisites for the grant of a retail liquor merchant’s licence under s 58(2) of the Liquor Licensing Act 1997 (SA) (‘Act’). The Judge further held that even if the prerequisites in s 58(2) were met he would nevertheless exercise the discretion to refuse the application under s 53 of the Act.

On appeal, the appellant contends that the Judge erred by failing to identify the relevant locality, incorrectly applying the statutory test in s 58(2) and concluding that he would nevertheless refuse the application under s 53.

Held, by Parker J (Peek J agreeing), dismissing the appeal:

1.  While it would have been highly preferable for the Judge to make a specific finding about the locality, the failure to do so did not affect the outcome (at [93]).

2. The words “adequately cater” in s 58(2) require the Licencing Court to make a normative judgment about contemporary expectations of accessibility to retail liquor services (at [97]).

3. The preferences and aspirations of significant sections of the community, the degree of difficulty and inconvenience in accessing retail liquor services if the application is refused and contemporary patterns of family, work and social life that rely on the convenience of one stop shopping are all relevant considerations when fixing the normative standard required by s 58(2) (at [100]).

4.  This Court has previously observed that the community may have to tolerate some inconvenience in obtaining liquor. In that light, the question is whether the absence of a retail liquor merchant causes an unacceptable level of inconvenience by community standards (at [117]).

5.  The Judge did not err in finding that the existing retail liquor outlets adequately met the public demand for liquor supplies. The evidence supported the Judge’s finding that the lack of a retail liquor merchant at the Park Holme Shopping Centre would not give rise to an unacceptable level of inconvenience by community standards (at [110] and [119]).

Held by Parker J (Kourakis CJ and Peek J agreeing):

1. The object of furthering the interests of the liquor and associated industries in s 3(1)(b) does not prevail over the specific statutory prohibition on taking into account the economic effect of a decision upon local licensees in s 53(1) (at [131]).

2. Whilst the grant of the licence may have the consequence of reducing competition or otherwise impairing the statutory objects, in order to reach that secondary conclusion the Judge made an assessment of the “economic effect on other licensees”. Such an assessment was clearly impermissible under s 53(1) (at [132]).

3. However, as the Judge did not actually exercise the discretion under s 53, the interests of the appellant were not adversely affected (at [134]).

Held per Kourakis CJ (dissenting), allowing the appeal:

1. The Judge misapprehended his statutory function in exercising the power conferred by s 58(2), resulting in an error of law which in itself vitiates his Honour’s decision (at [9]).

2.  The Judge failed to evaluate the statutory test by reference to the different sectors of the public whose needs must be adequately catered for. Treating the “public” as a single amorphous body obscures the task of the Court and promotes a subjective and monocultural approach to decision making (at [9]).

3.  The reason provided for refusing the application, namely that purchasing alcohol from alternative locations is not “particularly inconvenient” to residents in the locality, constitutes a further error of law. First, the test for judging the adequacy of the way in which a particular aspect of public demand is met, is not whether the status quo is “particularly inconvenient” for some parts of the public. Secondly, there can only be one standard for the South Australian community (at [13] and [14]). 

4. The reasoning of the Judge discloses a failure to understand the very rationale for the prohibition, and the stated object of the Act to encourage a competitive market for the supply of liquor (at [16]).

5.  If one of the larger, or smaller, retailers, wishes to compete by meeting the sectional demand for one stop shopping, it is wrong in law to deny its application, even in part, because there is a stronger demand for large discount liquor stores. To refuse an application, even in part, on that ground, would skew the competitive market place which might otherwise adequately meet the demands of all significant sections of the public (at [18]).

Liquor Licensing Act 1997 (SA) ss 3, 53, 58, referred to.
Woolworths v Fassina Investments (2015) 122 SASR 535, distinguished.
BWS-Seaford [2015] SALC 19, not followed.
Woolies Liquor Store Pty Ltd v Seaford Rise Tavern (2000) 76 SASR 290; Liquorland (Aust) Pty Ltd v Woolies Liquor Store Pty Ltd [2014] SASCFC 87; Nepeor Pty Ltd v Liquor Licensing Commission (1987) 46 SASR 205; Woolies Liquor Stores Pty Ltd v Carleton Investments Pty Ltd (1998) 73 SASR 6; Woolworths Ltd v Drase Coosit Pty Ltd [2010] SASC 13; Woolworths Ltd v IPG Management (SA) Pty Ltd [2015] SASCFC 97; Woolworths Limited v Carleton Investments Pty Ltd [2016] SASCFC 157; Mandamo Pty Ltd v Crystalcorp Developments Pty Ltd (2004) 89 SASR 21; Nuriootpa Vine Inn Hotel & Motel Pty Ltd v Licencing Court [1999] SASC 512, considered.

LIQUORLAND (AUSTRALIA) PTY LTD v WOOLWORTHS LIMITED AND ORS
[2018] SASCFC 31

Full Court:  Kourakis CJ, Peek and Parker JJ

1. KOURAKIS CJ:     I gratefully adopt the summary of the evidence appearing in the judgment of Parker J.  I would allow the appeal.

2. The Coles supermarket in the Park Holme Shopping Centre (the Centre) is the fourteenth busiest of the 56 South Australian Coles stores.  It is likely therefore to be in the top one-third of all South Australian supermarkets.  It is a “full line” supermarket, which because it has operated for more than 50 years and has attracted a mix of adjacent tenants, was described as a “landmark” shopping centre by the expert planning consultant called by the appellant.  Up to 30,000 shoppers visit the Coles supermarket each week, and there are probably more weekly visitors to the Centre as a whole.  Of that large number of shoppers, those who wish to purchase alcohol must negotiate busy roads and intersections, either to make a special trip to a stand-alone retail liquor store, or shop for their groceries in one of two other supermarket locations at the edges of the relevant locality where they can purchase both alcohol and groceries.  One of those locations is the busy Westfield Marion Shopping Centre and the other a Coles store at Warradale, which is adjacent to a drive through liquor store.

3. It is notorious that there are many people who shop as and when needed, adapting the “just in time” business model to their domestic requirements.  There are many who no longer undertake a larger weekly, or fortnightly, grocery or alcohol shopping expedition.

4. As a matter of common experience, the categories of shoppers who, on occasion, may wish to purchase alcohol together with their groceries include the following.  First there are parents, more commonly women, who visit a supermarket to purchase ingredients for afternoon snacks and the evening meal after, or before, picking up children from school or sports grounds.  Making a special additional trip to purchase alcohol for parents with children in their care is not always an easy matter.

5. Pensioners, again many of whom shop as required, whether travelling by bus or car, may be put out significantly by having to make a special trip to purchase alcohol.  I observe here that the limit of two shopping bags on the Marion City Council community bus does not preclude the use of that door‑to‑door service by pensioners, singles, or couples, who wish to purchase their relatively limited food and beverage requirements from the Centre.

6. Young adults, married or single, on the way home from working long hours, or engaging in after-work exercise or social activities, are another significant group of shoppers who have pressing reason to purchase alcohol and ready to eat food or groceries in the same location. 

7. The demands for off-licensed premises consumption of the above mentioned significant sections of the public would appear, on the face of it, to be not adequately catered for by the limited provision of single location shopping on the fringes of the relevant locality.  On what ground then might the application properly be refused?

8. In refusing the application, the Judge found that the “evidence did not establish that there is a community expectation that [the Centre] would have … a retail liquor outlet”.[1] That paragraph fundamentally misunderstands the function of the Licensing Court in exercising the power conferred by s 58(2) of the Liquor Licensing Act 1997 (SA) (the Act). The community’s expectation is the normative legal standard which the Court applies in determining whether a demand of the public, or a significant section of it, is “adequately” met.  The expectation itself is not a matter of evidence.  A specialist court like the Licensing Court is entitled to take judicial notice of the general nature of the working, social and family lives of the public and significant sectors of it.  That general understanding of community life may be supplemented by evidence of the particular practices of witnesses who are called.  Little weight can be attached to the subjective desires, or objections, of the relatively small number of witnesses selected by the parties.  However, the evidence of their particular lifestyles and shopping practices, together with the Court’s own knowledge and experience, will inform the community standard which underlies the statutory test of adequately catering for public demand.

   [1]    Liquorland (Australia) Pty Ltd – Parkholme Shopping Centre v Woolworths Limited and Hurley Hotels Pty Ltd [2017] SALC 2 at [103].

9. The Judge’s misapprehension of his statutory function is an error of law which in itself vitiates his Honour’s decision. In addition, the Judge failed to evaluate the statutory test by reference to the different sectors of the public whose needs must be adequately catered for. The failure to do so is an error in itself. Treating the “public” as a single amorphous body obscures the task of the Court and promotes a subjective and monocultural approach to decision making under the Act.

10. Notwithstanding those errors of law, the question remains whether, on a proper application of the law to the evidence in this case, the decision should be affirmed, the matter remitted to the Licensing Court, or the license granted by this Court.

11. In the Licensing Court the appellant adduced evidence from:

    ·    a mother of twin boys aged 12 who walks to the Centre because she cannot drive;

    ·    a female pensioner aged 73 who lives on her own and who drives the three kilometres from her home to the Centre;

    ·    a semi-retired man who lives close to the Centre with his wife;

    ·    a young, married, working male, whose partner is a tertiary student who could not find time to give evidence because of her university commitments.  She shops at Coles for groceries, uses the post office, cheesecake store and Bakers Delight at the Centre but travels to Liquorland at Kurralta Park Shopping Centre to buy alcohol; and

    ·    a female worker in an electronics company who, with her partner, purchases most of their alcohol from Dan Murphy’s at Westfield Marion but shops for groceries at Coles, and is also a customer of the other stores.

12. All of those witnesses stated the obvious, namely that they would purchase alcohol at the Centre if it were available.  The reason for them doing so is anchored in their lifestyles, which they share with significant sections of the community, and not a matter of mere whim.   

13. The only reason advanced by the Judge for refusing the application is that purchasing alcohol from alternative locations is not “particularly inconvenient” to the residents in the locality because “travelling relatively long distances on busy roads is for many living in the locality part of ordinary life and is unexceptional.”[2]  That element of the Judge’s reasoning manifests a further error.  First, the test for judging the adequacy of the way in which a particular aspect of public demand is met, is not whether the status quo is “particularly inconvenient” for some parts of the public.  Nor is the test that the time and distance it takes to shop for alcohol is “unexceptional” in that it is no longer than the time and distance it takes to access other places and services.  Members of the South Australian public are entitled to a measure of convenience in balancing their busy lives and, if they are less mobile, in negotiating urban congestion and other obstacles.

    [2]    Liquorland (Australia) Pty Ltd – Parkholme Shopping Centre v Woolworths Limited and Hurley Hotels Pty Ltd [2017] SALC 2 at [107].

14. Secondly, there can only be one standard for the South Australian community.  It cannot be the case that for members of the public accustomed to short journeys along wide avenues or boulevards, access to retail liquor outlets must be relatively easy and fast, but that those living in more congested suburbs must be content with a longer or slower drive if that poses no greater inconvenience than other aspects of their ordinary lives.

15. The Judge indicated that he would, in any event, have exercised his discretion not to grant the licence because it might compromise the market by causing other licensed premises, for example hotels, to close, or to offer less services.  For the reasons given by Parker J, the Judge’s reasons on that issue are inconsistent with the prohibition against taking into account the economic effect of granting a licence on other licencees.

16. However, more fundamentally, the Judge’s reasoning discloses a failure to understand the very rationale for that prohibition, and the stated object of the Act to encourage a competitive market for the supply of liquor.[3] I fear that the Judge’s finding that the public demand was adequately met might also have been influenced by a failure to understand the market premise on which the prohibition and the object are founded.  The premise is that competition will generate a range of retail liquor outlets, which together will more adequately meet the range of demands from different sections of the public.

    [3]    Liquor Licensing Act 1997 (SA), s 3(1)(e).

17. A failure to understand the market premise of the Act is also reflected in the submission, put on appeal, that there was a growing trend towards large stand‑alone outlets of the type operated by chains like Dan Murphy’s and First Choice. It was put that that fact was a reason for discounting the weight given to the demand for same-location retail outlets for food and alcohol. The assertion that the market dominant liquor merchants are establishing such stores can be accepted. Liquor super stores allow opportunities for efficiency and discounting, through the sale of relatively larger volumes. Such superstores are the “heavy artillery” in the trade war between the operators which dominate the industry. It can also be accepted that such stores are being built because many members, and significant sections, of the public, shop there because those stores meet their needs. However, the public demand referred to in s 58(2) of the Act is much more than the demands of those members of the public alone. Moreover those members might not have the totality of their demand met in that way. The public demand includes the demands of those sections of the public to which I referred to in [4]-[6]. The trend toward superstores does not deny the significance of that aspect of the public demand.

18. More importantly, if that trend is used to justify the refusal of applications, such as the one proposed by the appellant, the superstore trend will inexorably march on.  If one of the larger, or smaller, retailers, wishes to compete by meeting the sectional demand for one stop shopping, it is wrong in law to deny its application, even in part, because there is a stronger demand for large discount liquor stores.  To refuse an application, even in part, on that ground, would skew the competitive market place which might otherwise adequately meet the demands of all significant sections of the public.

    Conclusion

19. The evidence clearly establishes that the proposed licence is necessary to satisfy public demand in the locality for the off-premises consumption of liquor.  I would allow the appeal.  I would grant the licence.

20. PEEK J:     I would dismiss the appeal.  I agree with the reasons of Parker J.

21. PARKER J: This is an appeal from the decision of the Licensing Court of South Australia to refuse the grant of a retail liquor merchant’s licence for premises that the appellant, Liquorland (Australia) Pty Ltd, proposes to build at the Park Holme Shopping Centre (‘the Centre’). The appellant contends that the Licensing Court Judge incorrectly applied s 58(2) of the Liquor Licensing Act 1997 (SA) (‘the Act’).

22. The first and second respondents, Woolworths Limited and Woolies Liquor Stores Pty Ltd, operate a Dan Murphy’s liquor store at the Westfield Marion Shopping Centre and a BWS liquor store on Marion Road at Ascot Park.  The first and second respondents are represented by the same counsel.

23. The third and fourth respondents, P & J Hurley & Hurley/Symons Pty Ltd and Hurley Hotels Pty Ltd, operate the Marion Hotel on Marion Road, Mitchell Park and the Tonsley Hotel on South Road, Clovelly Park.  The names of the fifth and sixth respondents identify their respective businesses, the Warradale Hotel Pty Ltd and the Morphett Arms Hotel Pty Ltd.  Those hotels are respectively located on Diagonal Road, Warradale and Morphett Road, Glengowrie. The seventh respondent, Fassina Holdings Pty Ltd, operates a retail liquor store on Oaklands Road, Somerton Park.  The third to seventh respondents are represented by the same counsel.

    The Liquor Licensing Act 1997 (SA)

24. The relevant provisions of the Act are:

    3—Objects

    (1)The object of this Act is to regulate and control the sale, supply and consumption of liquor for the benefit of the community as a whole and, in particular—

    (a)     to encourage responsible attitudes towards the promotion, sale, supply, consumption and use of liquor, to develop and implement principles directed towards that end (the responsible service and consumption principles) and minimise the harm associated with the consumption of liquor; and

    (b)     to further the interests of the liquor industry and industries with which it is closely associated—such as the live music industry, tourism and the hospitality industry—within the context of appropriate regulation and controls; and

    (c)     to ensure that the liquor industry develops in a way that is consistent with the needs and aspirations of the community; and

    (d)     to ensure as far as practicable that the sale and supply of liquor contributes to, and does not detract from, the amenity of community life; and

    (e)     to encourage a competitive market for the supply of liquor; and

    (f)    …

    (2)In deciding any matter before it under this Act, the licensing authority must have regard to the objects set out in subsection (1).

    …

    53—Discretionary powers of licensing authority

    (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).

    …

    58—Grant of hotel licence or retail liquor merchant's licence

    (1)…

    (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)…

    Grounds of appeal

1. Liquorland has advanced nine grounds of appeal.  These grounds were set out in the Notice of Appeal as follows:

   1.His Honour erred by failing to determine the locality for the said premises.

   2.His Honour erred in determining the issue of whether the existing premises adequately catered for the public demand for liquor by reference to the "standard" that people in the locality around the centre were used to travelling distances along major roads to access other amenities that were relatively long by contemporary suburban standards [107-108]

   3.His Honour erred, by reasoning that the community expectations for reasonably accessible liquor differed from other areas of metropolitan Adelaide by reference to the standard that the community had to make longer trips to access other amenities.[107-108]

   4.His Honour erred by approaching the matter of accessibility by reference to whether a retail liquor shop in the Parkholme Shopping Centre was necessary to service the public demand. [104]

   5.His Honour erred in failing to address or take into account the Appellant's argument and evidence that there was a reasonable community expectation for packaged liquor at the proposed store by reason of the absence of any other proximate one-stop shopping facilities for large sections of the community.

   6.His Honour erred in failing to distinguish this matter from earlier decisions of the Licensing Court that he referred to having regard to the importance of the centre to the large population it served, the range of facilities at the centre and in particular the absence of other proximate facilities for one-stop shopping. [99-101]

   7.His Honour erred in failing to conclude that there was a reasonable community expectation for a liquor store in this centre, having regard to the matters referred in 6 above. [99-101]

   8.His Honour erred by failing to give due weight to the evidence of community inconvenience, expectations and the unchallenged evidence regarding the time and distances involved for large sections of the locality in undertaking one stop shopping or purchasing liquor at the Westfield Marion shopping centre.

   9.His Honour erred in concluding that had he been satisfied that section 58 (2) of the Act had been met that he would have exercised his discretion against granting the application [110-112]

   and in particular

   9.1     erred in concluding that the proposal would not add to the existing range of facilities in the locality

   9.2     erred in failing to conclude or take into account that the grant of the licence would add to competition in the market within the locality

   9.3     erred in proceeding on the basis, without any evidence, and /or contrary to the evidence that the viability of "adjacent hotels" would be at risk if the application were to be granted

   9.4     erred in failing to distinguish the dicta in BWS Seaford referred to at [110] of the Judgement

   9.5     erred in failing to give due weight to the long distances travelled by community members by contemporary standards to access one stop shopping facilities.

2. Permission to appeal under s 27 of the Act was granted by the Full Court on 22 May 2017.

   Background

3. The Centre is a neighbourhood shopping centre situated at Park Holme on the south western corner of the junction of Marion Road and Oaklands Road.  It includes a Coles supermarket together with a number of other shops and businesses.  The other shops comprise two bakeries, a hairdresser, a butcher, a pharmacist, a newsagent, two takeaway food shops, a sushi shop, a cheesecake shop, a bank and an electric appliance shop.  The Centre lacks a greengrocer, a barber, a dry cleaner, a petrol station and a café (as distinct from fast food outlets).  The Judge listed most of the retail premises in his reasons but failed to mention the electric appliance and cheesecake shops and one of the fast food premises. 

4. The appellant proposes that its liquor store would be located in a new building to be erected in the northern side of the enclosed foyer leading into the Coles supermarket.  Customers would enter the liquor store through automatic sliding doors near the entrance to the Coles supermarket.  The new building would have a total floor area of 157 square metres, of which 121.5 square metres would be devoted to sales.  The balance would comprise a cool room and a small stock area.  Most stock would be held in a bond room some 100 metres away on the opposite side of the Centre.

   The locality

5. The Licensing Court conducted a view at the Centre and also at several licensed premises in the general area. However, the Judge did not make any decision defining the locality for the purposes of s 58(2) of the Act. That is an unfortunate omission and forms the basis for the first ground of appeal. I will further consider the question of locality after I have referred to the evidence and the parties’ submissions.

   The evidence

6. The appellant called Ms Sophie Wong, the operations manager for Coles Supermarkets in South Australia, the Northern Territory and Tasmania.  Expert evidence was called by the appellant from Mr Jeffery Smith, a planning consultant, and Mr Sean Stephens, an economist.  The appellant also called five local residents as witnesses.

7. The first and second respondents called expert evidence from Mr Graham Burns, a town planner.  The third to seventh respondents called evidence from Mr Shaun Dwyer, the manager of the BWS liquor store at Ascot Park, Mr Samuel McInnes, the general manager of the Hurley Hotel Group, and Mr Nicholas Limberis, the bottle shop manager at the Marion Hotel.

   Sophie Wong

8. In her former role as Manager of Coles Liquor, Ms Wong was responsible for 35 Coles liquor stores in South Australia.  She stated that, as far as possible, the aim of the Coles Group is to co-locate liquor stores with supermarkets.  Ms Wong suggested that people are generally “time poor” and the current trend is for people to shop on multiple occasions each week rather than to have one big weekly shopping excursion.  The proposed store would offer “one stop shopping” for customers and remove the need to make another trip for liquor purchases.  The store would provide easy access for customers with trollies. 

9. Ms Wong stated that some 28,000 to 30,000 people visit the Coles supermarket at Park Holme each week.  The supermarket was the fourteenth busiest of the 56 Coles stores in South Australia.  The Park Holme Coles is a “full line” supermarket and comprises 3,500 square metres.  The site was re-developed in 2012 at a cost of $5.5 million.  Ms Wong acknowledged that the proposed Liquorland store would be one of the smaller stores operating under that name in South Australia. 

10. Based upon her knowledge of drive through bottle departments at hotels operated by the Coles Group, Ms Wong stated that persons attending bottle departments are predominantly male whereas Liquorland customers are predominantly female.  She also stated that at drive through bottle departments a high proportion of the sales are beer and pre-mixed drinks, whereas in a liquor store the product mix is more evenly weighted.  Specifically, in Liquorland stores there is a “higher skew” towards wine, with up to 50% of sales attributable to wine. 

    Jeffery Smith

11. Mr Smith prepared a detailed report and gave oral evidence.  He described the Centre as a “landmark” shopping centre that has operated for more than 50 years.  Due to its longevity and mix of tenants, it has sustained its position as an important retail centre for the local community.  In the view of Mr Smith, the proposed Liquorland store will add to the range of facilities available in this well recognised and substantial neighbourhood shopping centre. 

12. Mr Smith stated that the Centre is serviced by bus routes operating on Marion Road and Oaklands Road and also by a community bus service operated by the City of Marion.  The community bus service provides regular door-to-door service to the Centre for the aged and disabled. 

13. In the opinion of Mr Smith, the locality for the purposes of s 58(2) was bounded by Bray Street and Raglan Avenue in the north, South Road to the east, Sturt Road to the south and on the western side by a line delineating the western edge of the suburb of Marion, a portion of Oaklands Road and that part of Morphett Road north of Oaklands Road. He based his opinion on historical development, geographical characteristics, accessibility, statistical indicators, travel distance and the retail network. He also took into account the fact that the Sturt River and the Seaford and Tonsley railway lines present barriers to movement through the locality. Those barriers truncate the margin of the locality to the south-west of the Centre. Mr Smith considered that the Centre relies to a significant extent on its accessibility by the main road network, generally from areas to the west and north-west, and from the south for traffic using Marion Road, particularly where access is facilitated by traffic signals.

14. Mr Smith stated that the proposed liquor store will service the suburbs of Morphettville, Park Holme, Ascot Park, Clovelly Park, Edwardstown, Mitchell Park and Marion.  The proposed store will be reasonably accessible and very convenient due to the location of the Centre on the junction of Marion Road and Oaklands Road.  Those arterial roads carry significant volumes of traffic.  Mr Smith accepted that Oaklands Road provided access to the Fassina store

15. While Mr Smith suggested that elderly residents could use the Marion Council community bus to travel to the Centre, in cross-examination he acknowledged that the service requested that passengers use only two recyclable shopping bags.  This would not facilitate one stop shopping that included alcohol purchases.  He also acknowledged that the community bus travels more frequently to Westfield Marion and to Castle Plaza at Edwardstown and that both of those shopping centres have a wider range of supermarkets and banks.

16. While Mr Smith expressed the opinion that Liquorland would service an area in which there had been considerable recent growth in persons aged 20-39 years, in cross-examination he acknowledged that the data upon which he based that view was “experimental” and should be approached with caution.  He also accepted that his suggestion that the proposed store would serve an area with continued growth due to the development of new housing was based on his own observation rather than upon any statistics. 

17. Mr Smith stated that the BWS store at Ascot Park, which has a trading area of 347 square metres, is very large for a bottle shop.  He also stated that it was reasonably easy for drivers to exit the Centre and that it was “relatively straightforward” to travel from the Centre to the BWS.  A pedestrian crossing allowed easy access to the BWS store.  Mr Smith acknowledged that the destination for the majority of local bus routes was Westfield Marion. That shopping centre is important for residents who are disadvantaged and rely upon public transport.

18. Mr Smith also stated that at peak periods Marion Road is extremely busy with traffic frequently banking up.  At times, Marion Road was busier than South Road.  It was difficult to cross Marion Road at some times of the day.

    Sean Stephens

19. Mr Stephens is an economist with expertise in urban economics and the assessment of the economic impact of urban development projects. The focus of his report was upon defining and analysing the relevant trade area for the proposed Liquorland store.  He described the “trade area” as an analytical tool used by retail economists to define the geographical area in which residents are a source of regular and significant sales for a particular store or retail centre.  Mr Stephens opined that 80 to 90% of total sales are typically generated from within the trade area, although this can vary depending on the circumstances of the individual retailer.  Trade areas are often divided into primary and secondary areas.  Combined, the primary and secondary trade areas reflect the overall size of the market that is to be served by a store, with the exception of passing trade and other sales generated by residents outside the trade area, which may be 10 to 20% of total sales.  The primary trade area reflects where patronage is the highest and the secondary trade area reflects consistent but lower levels of patronage and sales.  It is normal for trade areas to overlap to varying degrees.  That is because over time consumers will often visit multiple stores and destinations for particular types of shopping. 

20. Mr Stephens considered that the most important factor influencing the proposed Liquorland store is the customer visitation and sales generated by the Coles supermarket and the Centre more generally.  Another relevant factor was the prominence of the Centre on a major arterial road with strong north-south and east-west road access.  However, there were a number of physical barriers which influenced customer visitation patterns.  A further relevant factor was the presence of competing retail destinations, including Westfield Marion, Castle Plaza and Brighton and also stand-alone liquor stores.  

21. The starting point of the trade area analysis conducted by Mr Stephens was a radius of three kilometres. He then considered whether the proposed Liquorland store would either draw customers from a lesser distance, for reasons such as the presence of competition or physical barriers that disrupt movement and customer convenience, or from a greater distance due to the lack of relevant competition or particularly strong levels of accessibility and convenience.  He also relied upon data drawn from the Flybuys loyalty program conducted by Coles.  He found that the Park Holme supermarket drew a high proportion of sales from residents living in proximity to the store.  However, the overall “trading draw” of the Centre was not extensive and was often less than the three kilometre radius, with the exception of the Coles supermarket which drew consistent patronage as far west as Brighton Road due to the strong east-west road connection along Oaklands Road and the location of alternative supermarkets. 

22. In light of these factors Mr Stephens defined the primary trade area as generally skewed in a north-south direction with Marion Road functioning as the ‘spine’.  The primary trade area extended to South Road in the east, Sturt Road in the south, Diagonal Road and Morphett Road to the west and to the north as far as South Terrace, Plympton.  Mr Stephens considered that the secondary trade area extended to the west of the primary area and was centred on Oaklands Road as far west as Brighton Road.  This secondary area included those parts of the suburbs of Glengowrie, Warradale, North Brighton and Somerton Park that were in proximity to Oaklands Road and which are easily accessible to the Centre from the west. Mr Stephens used the term “main trade area” to describe the combination of the primary trade area and the secondary trade area.

23. Mr Stephens also referred in his report to the socio-economic characteristics of residents in the trade area as compared with the average for the greater Adelaide area based upon 2011 census data.  He reported that personal income levels in the primary trade area were particularly low at approximately 14.1% below the greater Adelaide benchmark.  There was a very high proportion of rented housing (41.2% of dwellings in the primary trade area) that reflected the presence of public housing and the lower income profile of the area.  The share of median household income dedicated to mortgage repayments in the trade area was significantly higher than the greater Adelaide average. The rate of car ownership in the trade area was also lower than the greater Adelaide average by a significant margin.  Based on this information, Mr Stephens expressed the opinion that the low socio-economic profile of residents in the main trade area indicated relatively low levels of mobility and tight household budgets. Accordingly, there would be a community benefit in enabling residents to shop for liquor as well as other items at the Centre.

24. Mr Stephens also expressed the opinion that the focus of most of the liquor stores in the area surrounding the Centre was upon serving passing trade.  In his view, this could be contrasted to the proposed Liquorland store which would have a “close functional relationship” to the adjacent supermarket and specialty shops.  He further stated “the demographics of the surrounding population suggest that the ability to undertake shopping for take home liquor items in combination with purchases of other day-to-day grocery and other items, as will be enabled by a Liquorland at the Centre, would deliver a strong community benefit”. Mr Stephens concluded his written report with the statement that he was “of the professional opinion that the proposed Liquorland is consistent with the normal efforts of the retail industry to meet growing market demand, and also ensures consumers achieve their contemporary expectations for convenient access to take home liquor facilities both now and into the future”.

    The local residents

25. As I have already noted, the appellant called evidence from five local residents in support of its application.  Each of these witnesses stated that the opening of the proposed Liquorland store would make it more convenient for them to purchase liquor when they attended the Centre to make other purchases.  In fact, all five of the witnesses specifically used the phrase “one stop shop” or “one stop shopping” when describing why it would be more convenient for them if there was a liquor store at the Centre.  Three of the witnesses referred to local traffic problems, particularly on Marion Road.  Those three witnesses each also stated that the traffic problems made it difficult for them to attend the BWS store at Ascot Park.  Two witnesses also made the same observation about the bottle department of the Marion Hotel.  In particular, the evidence of one witness who travels north along Marion Road while returning from work in the southern suburbs stated that it was difficult to access the Marion Hotel at that time because it is on the western side of Marion Road.  Three of the witnesses indicated that they made most of their liquor purchases at the Dan Murphy’s store at Westfield Marion.  However, they all indicated that they would find it more convenient to engage in “one stop shopping” at the Centre.

    Graham Burns

26. Mr Burns described the boundaries of the locality in his report.  He made clear that the boundary he described was indicative and should not be interpreted as being precise or “hard and fast”.  The boundary generally extended 1.5 kilometres to the north and to the east, 2 kilometres to the west and almost 2.5 kilometres to the south and south-east of the Centre. The locality was bounded generally by Bray Street and Raglan Avenue to the north, South Road to the east, Sturt Road to the south and Diagonal Road to the west.  This locality was centred on the suburb of Park Holme and extended north to include Morphettville and Edwardstown while to the south it included Clovelly Park and Oaklands Park (excluding the area occupied by Westfield Marion) and adjacent residential areas to the north-east of Westfield Marion.  To the west, the locality included portions of the suburbs of Glengowrie and Warradale as far west as Diagonal Road.  Mr Burns also noted that the Sturt River limits east-west vehicle movements to some extent. However, bridges at Sturt Road, Finnis Street, Oaklands Road and Morphett Road provide unrestricted vehicle access.

27. Mr Burns noted that the licensed premises within the locality as described by him were the BWS liquor store at Ascot Park, the Marion Hotel, the Castle Tavern at South Road, Edwardstown and the Tonsley Hotel at South Road, Clovelly Park.  Each of these hotels include a drive in bottle shop.  Mr Burns stated that the licensed premises on the edge of the locality were the Morphett Arms Hotel and the Warradale Hotel.  Both these hotels include a drive in bottle shop.  Other licensed premises on the edge of the locality were the Dan Murphy’s and BWS stores at Westfield Marion.  Mr Burns stated that he expected that persons living on the western side of the locality would use the Fassina liquor store at Oaklands Park although he did not consider this store to be within the locality.

1. Mr Burns made several trips by car to determine the travelling time to and from the Centre and the BWS store at Ascot Park, the Fassina store at Somerton Park and the Marion Hotel.  These journeys were undertaken between 2.15 pm and 3.05 pm on a Monday afternoon.  He recorded that the travel time from the BWS to the Centre was 1 minute and 37 seconds while the reverse journey took 2 minutes and 17 seconds.  His trips to and from the Centre to the Marion Hotel took 2 minutes and 38 seconds and 2 minutes and 24 seconds, and his trips to and from the Centre to the Fassina store on Oaklands Road took 3 minutes and 43 seconds and 5 minutes and 6 seconds.

2. Mr Burns provided a substantial volume of information about the characteristics of the population in the locality.  Although Mr Burns compared the statistical data for the locality with that for South Australia as a whole, whereas Mr Smith drew a comparison with the greater Adelaide area, the result is not materially different.  As had Mr Smith, Mr Burns found that the population in the locality were more likely to live in rented housing, have a lower than average income and a lower proportion of car ownership.  However, Mr Burns noted that the lower incidence of car ownership may be explained by the higher proportion of elderly persons. 

3. Mr Burns regarded the BWS store at Ascot Park as having a good range of beers, wines and spirits, typical of stores of this kind.  The products are displayed in a spacious and easy to navigate layout.  He was advised that the store carried slightly less than 1,600 product lines.  The store is located 530 metres by road from the Centre.  Persons walking between the two locations could make use of pedestrian activated crossings to cross each of the main roads.  Mr Burns suggested that it was relatively easy for vehicles leaving the Centre carpark to turn right into Oaklands Road to reach the BWS store because the westward flow of traffic would be interrupted by the traffic lights at the Marion Road intersection. 

4. Mr Burns reported that the bottle shop at the Marion Hotel was not large but, in his opinion, it was well stocked with a range of wines that he regarded as above average.  The Hotel was located 1.08 kilometres south of the Centre.  A Foodland supermarket and a pharmacy were located on the opposite side of Marion Road about 130 metres south of the Hotel.  Breaks in the median strip provided relatively safe and convenient vehicle access between the two sites, as did pedestrian activated traffic lights.

5. Mr Burns considered that the Fassina liquor store on Oaklands Road was large and very well appointed.  He suggested that in many respects it operated in the same way and at the same level as a Dan Murphy’s or First Choice liquor store.  It was located 2.7 kilometres west of the Centre.  An IGA supermarket and associated shops were located about 320 metres to the east of the Fassina store.

6. In the opinion of Mr Burns, the Thirsty Camel outlet at the Morphett Arms Hotel provided a limited range of beer, wines and spirits.  However, in his view, the Thirsty Camel outlet at the Warradale Hotel supported a reasonable range of beer, wines and spirits.  The Warradale Hotel also shared access and parking facilities with a large Coles supermarket. The Cellerbrations outlet at the Castle Tavern provided a “basic” range of beer, wine and spirits while the Tonsley Hotel carried an “above average” range.

   Shaun Dwyer

7. Mr Dwyer is the manager of the BWS store at Ascot Park.  The store covers approximately 380 square metres and stocks about 1,600 lines.  Sales comprise 34% wine, 33% beer and 33% spirits.  Mr Dwyer stated that approximately 80% of customers are “regulars” from the surrounding area.  A majority of customers come from Ascot Park, Mitchell Park, Park Holme, Marion, Morphettville, Edwardstown and Clovelly Park.  The store also has some passing trade.  He considered that the Centre was easily accessible from the BWS store.  He buys his lunch at the Centre and also uses the pharmacy and newsagency.  He acknowledged that Marion Road was very busy from 4 pm to 6 pm but suggested that at other times access to the BWS site was very easy.

   Samuel McInnes

8. Mr McInnes is the general manager of the Hurley Hotel Group which owns and operates the Marion and Tonsley Hotels.  He stated that the Hurley Hotel Group had done preliminary work on a redevelopment of the Marion Hotel. The estimated cost of this redevelopment is some $12 million.  That proposal had not yet been put to the Marion Council.  He stated that the patronage of the drive‑in bottle shops at both the Tonsley and the Marion Hotel was equal between males and females.

   Nicholas Limberis

9. Mr Limberis is the manager of the bottle shop at the Marion Hotel.  He stated that the bottle shop includes two lanes, including an express and browse lane.  He suggested that a high percentage of customers browse in the bottle shop before 4 pm and after 6 pm. The busiest part of the day is from approximately 4 pm to 7 pm. He said that the split between male and female patrons was 60:40.  He was not aware of any problems with women being uncomfortable using the drive‑in bottle shop.

   The appellant’s submissions

10. The appellant contends that the Judge erred by failing to identify the relevant locality. It was necessary for him to do so in order to apply the test under s 58(2) of the Act. The appellant also contends that the Judge failed to address the case it made with respect to the absence of reasonably proximate one stop shopping facilities in the locality.

11. The appellant further contends that the Judge erred in deciding the threshold test under s 58(2) was not satisfied because residents in the locality are required to travel longer distances to access amenities than those experienced by most people in the metropolitan area. His Honour also erred in proceeding on the basis that the expectation of residents in the locality for reasonably proximate one stop shopping facilities was not to be judged against contemporary metropolitan standards.

12. The appellant also contends that the approach adopted by the Judge did not reflect the statutory test under s 58(2) of the Act. The findings of his Honour on critical issues suggest that he was applying the stricter test under s 38 of the repealed Liquor Licensing Act 1985 (SA) (‘Repealed Act’). The appellant supports that submission by reference to the judgment of the Full Court in Woolworths Limited v Fassina Investments Pty Ltd.[4]

    [4] (2015) 122 SASR 535.

13. The final submission made by the appellant is that the Judge erred in concluding that if it became necessary he would have exercised his discretion under s 53(1) of the Act to refuse the application. The submissions by the appellant in respect of that issue reflect the matters set out in paragraphs 9.1 to 9.5 of the Notice of Appeal reproduced at [25] above.

    The respondents’ submissions

    The submissions of the first and second respondents

14. The first and second respondents submit that the appellant failed to satisfy the requirement in s 58(2) of the Act that the licensed premises already existing in the locality do not adequately cater for the public demand and that the licence is necessary to satisfy that demand. The Centre is a neighbourhood centre and could clearly be distinguished in terms of the ‘adequately cater’ test from the Arndale Centre (a district centre/sub-regional shopping centre which attracted over 7 million visitors annually) that was the subject of this Court’s decision in Woolworths Limited v Fassina Investments Pty Ltd.[5]

    [5] (2015) 122 SASR 535.

15. The first and second respondents contend that while the Judge had not expressed a preference for the evidence of Mr Smith concerning the locality, the difference between Mr Smith’s opinion of the locality and the larger locality identified by Mr Burns did not matter. Mr Stephens had advocated a trade area that was similar to the locality described by Mr Burns.  This Court observed in Liquorland (Aust) Pty Ltd v Woolies Liquor Stores Pty Ltd that the locality may be identified by the area from which demand for liquor might, at least in part, be met by the proposed licensed premises.[6] 

    [6] [2014] SASCFC 87 at [62], Parker J.

16. The first and second respondents submit that the Judge did not err in concluding that residents in the locality (however defined) were more accustomed to travelling longer distances than residents in an inner suburban area. Liquor was available at the BWS store at Ascot Park, even though the witnesses called by the appellant chose to go further.

17. All bus routes in the locality lead to Westfield Marion, which includes BWS and Dan Murphy’s stores.  Disadvantaged persons who did not have a vehicle could make use of those stores.

18. The Judge’s finding about travel patterns supported his Honour’s conclusion that it was not particularly inconvenient for residents to buy liquor from the BWS store at Ascot Park, the BWS and Dan Murphy’s stores at Westfield Marion, the Marion, Tonsley and Morphett Arms Hotels, the Fassina store on Oaklands Road and Liquorland at Anzac Highway, Kurralta Park. 

19. The fact that liquor may be obtained from premises just outside the locality is relevant if those premises can satisfy the needs of the public within the locality.[7] The Fassina Store on Oaklands Road would become increasingly relevant towards the western end of the locality. Similarly, the facilities at Westfield Marion become progressively more relevant as one moves from Oaklands Road towards Sturt Road.

    [7]    Woolies Liquor Stores Pty Ltd v Seaford Rise Tavern (2000) 76 SASR 290 at [29]-[36], Doyle CJ.

20. The BWS store at Ascot Park is more than double the size of the proposed Liquorland store, carries a greater range than other BWS stores and has car parking. The evidence of Mr Stephens that most of the trade of the BWS store at Ascot Park was likely to be passing trade was contrary to the evidence of the store manager, Mr Dwyer. 

21. The first and second respondents contend that the evidence of Mr Burns and Mr Smith established that it is relatively easy to enter and leave the Centre from major roads. Mr Smith also accepted that it was a relatively easy trip, either by car or on foot, from the Centre to the BWS store at Ascot Park.

22. While five residents gave evidence that it would be very convenient to have another bottle shop at the Centre, this would be true of all neighbourhood shopping centres. This Court has stated on a number of occasions that the expression “do not adequately cater for” in s 58(2) means that the public may have to tolerate some inconvenience in obtaining alcohol.[8]

    [8]    Woolworths Limited v Drase Coosit Pty Ltd (2010) 106 SASR 146 at [53], Kourakis J (as he then was); Woolies Liquor Stores Pty Ltd v Carleton Investments Pty Ltd (1998) 73 SASR 6 at [11], Doyle CJ.

23. The first and second respondents also submit that the Judge did not err in suggesting at paragraph [102] of his reasons that the demand for one stop shopping could only justify the grant of a retail liquor merchant’s licence in a regional or district centre but not a neighbourhood shopping centre. There is nothing in his Honour’s reasons to suggest that he was rejecting the possibility that evidence of unsatisfied demand might justify the grant of a licence in a particular case. In that context, his Honour had noted immediately prior to his observation about neighbourhood centres that the existing liquor outlets were more than adequately meeting public needs.

24. The first and second respondents also submit that the case advanced by the Woolworths Group before the Licensing Court when it sought a licence for a First Choice store on South Road, Clovelly Park is relevant to the present application.[9]  In that case, Woolworths asserted a demand for take away liquor facilities from residents of Mitchell Park and Clovelly Park who were said to be disadvantaged.  However, the Licensing Court found that residents in those suburbs could have their liquor needs met by the BWS at Ascot Park and by the Marion Hotel.  While the first and second respondents concede that the locality in that case is not identical to that in the present matter, the facts suggest substantial commonality.  Ms Wong gave evidence for Coles in the First Choice Liquor case and in the present matter.  Her evidence in this case was that the primary strategy of her employer was to locate Liquorland stores near Coles supermarkets but she conceded that was not the primary consideration in seeking a licence for the First Choice store on South Road.  Ms Wong conceded that if the licence was granted at Park Holme it was possible that it might be removed elsewhere in the locality. The first and second respondents submit that although the First Choice Liquor case was decided on its own facts, the circumstances speak heavily against the submission by the appellant in the present case that the needs of the public are not adequately met and that a licence is necessary to meet that demand.

    [9]    See, First Choice Liquor v Woolworths Limited & Ors [2015] SALC 1 (‘First Choice Liquor case’).

25. The first and second respondents submit that the Judge had correctly concluded that the test under s 58(2) of the Act had not been met. The Court should not readily disturb the finding of an experienced Licensing Court Judge who had attended a view and heard the evidence of the expert and lay witnesses.

26. Finally, the first and second respondents submit that the Judge did not err by indicating that if it became necessary, he would have exercised the discretion under s 53 of the Act to refuse the application. That discretion is very wide.[10] His Honour’s conclusion that the grant of the licence might assist one form of consumer at the expense of other groups, especially the adjacent hotels and their patrons, is consistent with the principle that undue proliferation of licences should not be encouraged and that a suitable balance should be maintained between the various types of licensed premises.[11]

    [10]   Dalgety Wine Estates Pty Ltd v Rizzon (1979) 141 CLR 552 at 572, Mason J.

    [11]   Waiata Pty Ltd v Lane (1985) 39 SASR 290 at 294-295, King CJ.

    The submissions of the third to seventh respondents

27. The submissions of the third to seventh respondents were consistent with those of the first and second respondents. They noted that the appellants had failed in their earlier application before the Licencing Court for a standalone large format liquor store nearby based upon convenience shopping for packaged liquor. As the proposed Liquorland store would not offer a greater range or better prices than the nearby BWS liquor store, the appellant’s case was now founded upon the desirability of one stop shopping. However, the fact that the witnesses called by the appellant might prefer to shop in a particular way and to buy liquor at the Centre did not satisfy the statutory test. That evidence did not prove the existence of a community expectation sufficient to justify a new licence. If that were the case, virtually every neighbourhood shopping centre could mount a claim for a retail liquor merchant’s licence.  

28. The Centre is similar to other shopping centres considered in other recent unsuccessful applications where permission to appeal was refused by the Full Court.[12] The size, scale and diversity of the retail facilities offered at the Centre are much less than those offered at the Arndale Centre.[13] The facilities are also significantly inferior to those available at larger centres that are readily accessible to residents to the north and south of the Centre, namely Westfield Marion and Castle Plaza. It was common ground that the price and range of products to be offered at the proposed Liquorland store would be inferior to those offered at Dan Murphy’s at Westfield Marion. Thus, the proposed store did not provide anything that was not already available to the residents in the locality.

    [12]   Woolworths Limited v IPG Management (SA) Pty Ltd [2015] SASCFC 97; Woolworths v Carleton Investments Pty Ltd [2016] SASCFC 157.

    [13]   See, Woolworths Limited v Fassina Investments Pty Ltd (2015) 122 SASR 535.

29. The Judge was not satisfied that the evidence demonstrated any particular or elevated desire for one stop shopping. To the extent that residents may have a particular preference to purchase alcohol while undertaking other shopping, the BWS store at Ascot Park is at most 500 metres away. Furthermore, any need of residents to undertake convenient purchases was already well catered for by a variety of premises in and around the locality.

30. Although the appellant contends the Judge erred by failing to fix the locality, the appellant has not identified the locality it contends should have been found. Moreover, there was little difference between the expert witnesses concerning the locality. The “trade catchment” area identified by Mr Stephens only differed from the preferred locality of Mr Smith by extending further west to include parts of Glengowrie and Warradale. The locality identified by Mr Burns was similar to that of Mr Smith but its western extent was about the mid-point between the boundaries suggested by Mr Smith and Mr Stephens. In that light, and as there was little disputation in submissions, it is entirely hollow for the appellant to now complain about the failure of the Judge to specify the locality.

31. The minor differences between the experts about the locality were not the subject of extensive submissions at trial because all parties accepted that it was relevant to have regard to premises outside the locality and also that the locality need not be fixed precisely. A further reason for the lack of substantial dispute at trial about the locality was that if the locality extended further to the west, as suggested by Mr Stephens and Mr Burns, the Fassina store on Oaklands Road became increasingly more relevant. That store had been described in evidence as “relatively large and well stocked” and “with a large array of wine and a very attractive store”.

32. The Judge referred to the general locality and its features in his reasons. It is clear that the minor differences in the extent of the locality proposed by the experts made no difference to his Honour’s conclusion. There is no basis to the contention by the appellant that the Judge erred by giving particular weight to the one stop shopping options available at Westfield Marion and at Kurralta Park. Westfield Marion was clearly relevant to persons within the locality who used it for a variety of purposes and the reference to Kurralta Park arose from the evidence of a witness called by the appellant.

33. The third to seventh respondents submit that there is no merit in the appellant’s contention that the Judge erred by failing to make any findings that “squarely addressed” the issue of reasonably proximate one stop shopping. They submit that the Judge clearly understood the basis upon which the appellant advanced its case. His Honour considered the authorities that made clear that matters to be taken into account are broader than an inquiry into the desirability of one stop shopping at a particular location. The fact that some of the witnesses called by the appellant would find it convenient to purchase liquor at the Centre, did not establish a relevant community expectation. That conclusion was compelling in light of the evidence actually given by the community witnesses and having regard to the need to avoid giving excessive weight to the evidence of such witnesses. In that context, it is significant that no witnesses were called from large parts of the locality. That fact reinforces the significance of considering the objective features of the whole locality in determining whether the witnesses were reasonably representative. Apart from the evidence of those witnesses there was no basis to conclude that there was a community expectation that the Centre should offer “one stop shopping”.

34. The third to seventh respondents submit that due to the increase in the number and prominence of large liquor stores in recent years there is good reason to doubt that convenience purchases in liquor stores co-located with supermarkets were increasing in significance. Indeed, Mr Stephens conceded that, on a per capita basis, large format liquor stores have increased their percentage share of off premises liquor consumption. At the very least, the combined effect of the trend towards large standalone liquor stores, combined with the increasing prevalence of direct sales licences and the decline in per capita liquor consumption suggests there was no reason to think that “one stop shopping” for alcohol is more important than in the past.

1. The third to seventh respondents contend that the submissions made by the appellant mischaracterises the approach adopted by the Judge with respect to the issue of traffic conditions. The Judge was dealing with the contention by the appellant that the availability of nearby licensed facilities should not be given great weight because of the travel times caused by the busy roads between the Centre and other facilities.  The third to seventh respondents submit that the point made by the Judge, and in their submission correctly, was that the residents who the appellant relied upon and who currently use the Centre are already encountering reasonably busy roads on a frequent basis and would be familiar with those roads. The important point is that the delay and inconvenience involved with incorporating a visit to the BWS store, or one of the many other nearby facilities, was relatively minor.

2. The third to seventh respondents submit that there is no substance to the appellant’s complaint that the Judge applied the more stringent test in s 38 of the Repealed Act rather than the test under s 58(2) of the Act. The use by the Judge of the word “necessary” at paragraph [104] of his reasons did not indicate error but reflected the use of that word in the second limb of s 58(2). Similarly, the conclusion by the Judge at paragraph [108] that the outlets to which he referred “are more than adequately meeting the public’s relevant needs” did not reveal error. The phrases “the needs test” and “needs witnesses” are commonly used when referring to public demand.

3. The third to seventh respondents also submit that the approach adopted by the Judge to the exercise of the discretion under s 53 was not contrary to the prohibition in s 53(1) against taking into account the economic effect of the grant of a licence upon competitors. The discretion under s 53 is unqualified and is the widest of possible discretions.[14] When exercising that discretion it is appropriate to have regard to the hierarchy of licences under the Act and the statutory purposes and the maintenance of an appropriate balance between the various classes of licences in the public interest.[15] Although the economic effect upon other licensees was not a permissible consideration, the Court is entitled to be mindful that by giving effect to the preference of some consumers it does not set a precedent which would be likely to result in a generally adverse effect upon another class of licensee (particularly hotel bottle shops) thereby harming the balance of licences implicit in the structure of the Act and the different purposes served by these licences. That was a matter of concern to the Judge.[16] 

   [14]   Dalgety Wine Estates Pty Ltd v Rizzon (1979) 141 CLR 552 at 572, Mason J; Bottega Rotolo Pty Ltd v Saturno’s Colonist Tavern Pty Ltd (2008) 100 SASR 1 at [26], Debelle and Bleby JJ; Costco Wholesale Australia Pty Ltd v Woolworths Ltd (2016) 125 SASR 300 at [85], Parker J.

   [15]   Costco Wholesale Australia Pty Ltd v Woolworths Ltd (2016) 125 SASR 300 at [87], Parker J; First Choice Liquor v Woolworths Ltd & Ors [2015] SALC 1 at [217], Gilchrist J.

   [16]   See [111] of his Honour’s reasons.

4. The third to seventh respondents also refer to the principle of appellant restraint when considering the exercise of a judicial discretion.[17]  The need for appellant restraint is particularly significant when the discretion has been exercised by a specialist tribunal or court.[18] 

   [17]   House v The King (1936) 55 CLR 499.

   [18]   Jattadd Pty Ltd v The Liquor Licencing Commissioner (1993) 172 LSJS 246 at 250, King CJ.

5. The third to seventh respondents further submit that the appellant has not discharged the onus of demonstrating that the existing facilities do not adequately cater for public demand for consumption of packaged liquor in the locality. There is also no basis for the appellant’s contention that but for the alleged errors in his Honour’s approach he would have granted the application.

   Consideration

6. The first eight grounds of appeal focus on the approach adopted by the Judge to the requirements of s 58(2) of the Act. Several of those grounds significantly overlap. The ninth ground of appeal advanced by the appellant is directed at the observations made by the Judge as to how he would have exercised his discretion under s 53 if he had concluded that the requirements of s 58(2) were satisfied.

   Failure to identify the locality

7. The appellant’s first ground of appeal is that the Judge failed to identify the locality. I noted in Woolworths v Fassina Investments (with Kourakis CJ and Vanstone J agreeing) that s 58(2) gives rise to two questions:[19]

   1Do the licenced premises already existing in the locality adequately cater for the public demand for liquor consumption off licensed premises?

   2Is the licence necessary to satisfy that demand?

   [19] (2015) 122 SASR 535.

8. Those questions relate to the supply and demand for liquor in the locality. While it would have been highly preferable for the Judge to make a specific finding about the locality, for the reasons that follow, I do not consider that his Honour’s failure to do so affected the outcome.

9. The only difference between the localities identified by the two planning experts was that Mr Burns placed the western boundary somewhat further west than Mr Smith. The boundaries identified by Mr Smith and Mr Burns were otherwise identical. They both fixed the eastern boundary at South Road, the southern boundary at Sturt Road and the northern boundary at Bray Street and Raglan Avenue. The economist, Mr Stephens, fixed part of the western boundary of the primary trade area at an intermediate position between the limits preferred by Mr Smith and Mr Burns. However, the secondary trade area described by Mr Stephens extended to Brighton Road, which is well beyond the western boundary identified by both Mr Smith and Mr Burns.

10. The only significance of the difference in expert opinion concerning the extent of the locality is that the Fassina store on Oaklands Road at Somerton Park assumes greater importance as the boundary moves further west. The Fassina store is larger and provides a significantly greater range of products in comparison to the proposed premises and the other liquor outlets in or near the locality, with the exception of the Dan Murphy’s store at Westfield Marion. Even if the more confined western boundary preferred by Mr Smith is adopted, the fact that consumers living to the west of the Centre are likely to make at least some use of the Fassina store remains relevant. That is because when public demand for liquor is assessed it is permissible to have regard to premises outside the locality.[20] 

    [20]   Woolies Liquor Store Pty Ltd v Seaford Rise Tavern (2000) 76 SASR 290 at [29]-[36], Doyle CJ.

11. While the Judge did not make a specific finding as to the extent of the locality, it is apparent from his Honour’s reasons that he was alert to the need to consider that issue. His Honour referred in detail to the evidence about the locality and also considered several relevant authorities.[21] Significantly, his Honour said at [107] in the context of customer travelling distances “whether that locality be defined by the evidence of Mr Smith or Mr Burns or by reference to the ‘main trade concept’ used by Mr Stephens”.  That passage indicates that his Honour concluded that there was little material difference between the evidence of the three expert witnesses. That conclusion was clearly correct. His Honour’s approach was also consistent with the view of this Court that it is not necessary to fix precisely the boundaries of a locality.[22] For these reasons, I do not consider that the Judge erred by not specifically determining the boundaries of the locality.

    [21]   Liquorland (Aust) Pty Ltd v Woolies Liquor Store Pty Ltd [2014] SASCFC 87 at [62]-[63], Parker J; Nepeor Pty Ltd v Liquor Licensing Commission (1987) 46 SASR 205 at 215, von Doussa J.

    [22]   Nepeor Pty Ltd v Liquor Licensing Commission and Ors (1987) 46 SASR 205 at 215, von Doussa J; Woolies Liquor Stores Pty Ltd v Seaford Rise Tavern (2000) 76 SASR 290 at [29]-[36], Doyle CJ.

    Section 58(2)

12. I observed in Fassina that Doyle CJ in Woolies Liquor Stores Pty Ltd v Carleton Investments Pty Ltd recognised that when determining an application for a retail liquor merchant’s licence the Licencing Court must make a normative judgment about contemporary expectations of accessibility. [23]

    [23] (1998) 73 SASR 6 at 11-12; Woolworths Ltd v Drase Coosit Pty Ltd [2010] SASC 13 at [53], Kourakis J.

13. I also observed in Fassina that, in contrast to applications for hotel licences under s 58(1) of the Act, it is not sufficient for an applicant for a retail liquor merchant’s licence under s 58(2) to show there is an unmet demand which would be met by the grant of the licence. Such an approach would permit the preferences of a significant section of the public to be decisive. It would also be contrary to the requirement in s 58(2) that the Licencing Court make a normative judgement about the adequacy of the liquor supply provided by existing licensed premises.

14. I observed in Fassina that the reference by Doyle CJ in Carleton to a “mere preference” for one stop shopping was not intended to deny that consideration significant weight when determining the normative standard. The point made by the former Chief Justice was that the preferences of some consumers, whether that be a liking for one stop shopping or a desire for a liquor store in a particular location, were not of themselves determinative. However, the preferences and aspirations of significant sections of the community are an important consideration in fixing the normative standard required by the words “adequately cater” in s 58(2).

15. I observed in Fassina that the use of the term “adequately cater” in s 58(2) has altered the focus of the public demand test from that which operated under s 38 of the Repealed Act to require consideration of the public’s expectations as to the accessibility of retail liquor services. I noted that the extent to which existing facilities cater for the contemporary shopping habits of the public as a whole, or significant sections of the public, is an important element of the “adequately cater” test. Thus, an important consideration is the degree of difficulty and inconvenience that the public, or a significant section of the public, will experience in accessing retail liquor services if an application is refused. Contemporary patterns of family, work and social life that rely on the convenience of one stop shopping are also relevant considerations.

16. The Full Court held in Fassina that the Judge in that case had erred by applying the “unreasonable difficulty and inconvenience test” as an exclusive test without addressing the broader “adequately cater” test. The Judge in Fassina had not considered whether the contemporary community expectation would be that a centre such as Arndale would include a retail liquor store. That consideration was of particular importance because of the size, location and substantial patronage of Arndale as a large regional centre. The evidence in that case clearly established that the contemporary community expectation was that a large regional centre such as Arndale would include a retail liquor store.

17. Subsequent to the decision in Fassina the Full Court refused permission to appeal in two cases where an application for the grant of a retail liquor merchant’s licence in a neighbourhood shopping centre was refused by the Licencing Court. The first of those cases was Woolworths Ltd v IPG Management (SA) Pty Ltd.[24]  The case related to the Seaford Meadows Shopping Centre. It was described as a relatively small centre comprising a Woolworths supermarket and some specialty shops and food outlets. It was about two kilometres from the much more substantial Seaford Central Shopping Centre which comprised two supermarkets, a Big W store, a significant number of other retail outlets and, most relevantly, a BWS liquor store. There were also five other retail liquor outlets in and around the locality. The basis upon which the Full Court refused permission was that, given the small size of the Seaford Meadows Shopping Centre, and the proximity of other retail liquor outlets, it could not be properly said that there was a contemporary community expectation that it would include a retail liquor outlet.

    [24] [2015] SASCFC 97.

18. The second relevant case where the Full Court refused permission to appeal against the refusal of the Licencing Court to grant a retail liquor merchant’s licence was Woolworths Limited v Carleton Investments Pty Ltd.[25]  The case concerned an application for a retail liquor merchant’s licence to operate a BWS store at the Woodcroft Market Plaza Shopping Centre. The Full Court held that there was no reasonable prospect that the appeal would succeed having regard to the size and nature of the Woodcroft Market Plaza and its proximity to other retail liquor outlets. The centre was very different to Arndale and comprised no more than a large supermarket and a handful of retail outlets.

    [25] [2016] SASCFC 157.

19. I stress that the comparison between the size and range of retail facilities offered at Seaford Meadows and the Woodcroft Market Plaza as compared to Arndale should not be taken to suggest that the test under s 58(2) is to be applied so that an application for a retail liquor merchant’s licence at a regional or district shopping centre will necessarily succeed while an application relating to a neighbourhood centre is likely to fail. Such an approach would not give proper effect to the terms of s 58(2). As I noted in Fassina, it is necessary to take into account contemporary social and work patterns and measure the significance of the proposed location for a retail liquor outlet in that context.

    Local traffic issues

20. The appellant has submitted in support of appeal grounds two and three that the Judge erred by finding that community expectations for reasonably accessible liquor differed from other parts of metropolitan Adelaide because residents in the locality were used to travelling significant distances on major roads to access amenities. By reference to that standard the Judge found that the evidence did not establish that it was particularly inconvenient for the residents in the locality to access the existing licensed premises in and adjacent to the locality.

21. The Judge referred specifically to the BWS at Ascot Park, the two liquor stores at Westfield Marion, the Marion Hotel, the Tonsley Hotel, the Fassina store on Oaklands Road, the Morphett Arms Hotel and Liquorland at Kurralta Park. To that list might also be added Cellarbrations at Castle Plaza, the Thirsty Camel outlet at the Warradale Hotel on Diagonal Road and the Avoca Hotel on South Road, Edwardstown.

22. One of the community witnesses referred to the difficulty in accessing the Marion Hotel when she was driving north along Marion Road from her place of employment late in the afternoon due to the difficulty of making a right-hand turn across the line of traffic travelling south. The evidence suggests that the difficulty in turning right into the BWS store for motorists proceeding north along Marion Road would largely be limited to the peak hour period. Moreover, the evidence also indicates that those driving south along Marion Road could readily turn left into either the BWS store at Ascot Park or the Marion Hotel. While Marion Road is clearly a busy thoroughfare, the tenor of the evidence is that the volume of traffic does not cause particular inconvenience other than in peak hours. Although there is also evidence (see [118] below) suggesting that motorists would experience some inconvenience in travelling about five hundred metres north from the Centre to the BWS store on the opposite side of Marion Road, this would be limited to peak periods.

23. I do not accept the appellant’s contention that the Judge found that community expectations for reasonably accessible liquor in the locality differed from elsewhere in Adelaide because residents were used to travelling substantial distances on busy roads. His Honour’s observation concerning local roads was made in response to the submission by the appellant that access to nearby licensed premises should not be given great weight because of the difficulties with traffic.[26] In that context his Honour found that the existing local outlets more than adequately met the public need for accessible liquor supplies.

    [26]   Liquorland (Australia) Pty Ltd v Woolworths Ltd and Ors [2017] SALC 2, at [21].

24. There is nothing in the evidence which suggests that the opening of a liquor store at the Centre would have any significant effect on the distances or times that residents are required to travel to access liquor facilities. The only saving in time and distance would be for those who wished to engage in one stop shopping and do not have convenient access to other one stop shopping facilities in or near the locality.

25. I do not consider that the Judge erred in finding that by contemporary standards the existing liquor outlets adequately met the public demand for liquor supplies.

    One stop shopping

26. The appellant complains that although the Judge listed in his reasons most of the retail premises located at the Centre, his Honour failed to mention the electric appliance and cheesecake shops and one of the fast food premises.  I infer that the omission by the Judge of any reference to the three businesses may possibly have occurred because they are located in a building separate from, but immediately adjacent to, the main structure containing the supermarket and all other shops. Given the nature of the three businesses, I do not consider that their omission is relevant to the one stop shopping issue. That concept primarily relates to regular purchases of foodstuffs, household consumables and the like, rather than fast food shops (of which there are several at the Centre) or specialist retailers such as the electric appliance and cheesecake shops. I also do not consider that the failure to mention the three businesses caused the Judge to err in his assessment of the Centre’s significance in terms of community expectation.

27. While each of the five community witnesses made specific reference in their evidence to the desirability of one stop shopping, their evidence about their shopping and liquor purchase habits does not suggest they would make great use of the concept if the licence application were to succeed.

28. While one stop shopping considerations remain important when deciding an application for a retail liquor merchant’s license, the growing trend towards large stand-alone outlets of the type operated by Dan Murphy’s, First Choice and, to some extent, Fassina is also relevant. The evidence of Mr Stephens referred to that trend. The evidence of three of the community witnesses also suggested that they made most of their liquor purchases at the Dan Murphy’s store at Westfield Marion.

29. Mr Stephens also referred to the growth in direct sales effected through the Internet.[27] However, the evidence does not permit any finding as to whether an increase in direct sales has had a significant effect on the volume of purchases made by those with a preference for one stop shopping. It may be that these are different market sectors.

    [27]   Counsel for the Third to Seventh Respondents has also referred to the finding by the Hon TR Anderson QC in the Review of the South Australian Liquor Licensing Act 1997 published on 29 June 2016 that direct sales licenses increased by 325.8% between 2005 and 2016.

30. The appellant contends that the Judge erred by failing to take into account the evidence of a reasonable community expectation for the availability of packaged liquor at the Centre because of the absence of any other reasonably proximate one stop shopping facilities for large sections of the community in the locality. The force of that contention is lessened by the fact that residents in the north eastern sector of the locality have access to one stop shopping at the large Castle Plaza shopping centre (which includes a Cellarbrations store) and those in the south western part of the locality have access to the two liquor outlets at Westfield Marion. While there was some evidence that the size of Westfield Marion and parking issues deter persons from going there to purchase liquor, three community witnesses preferred to purchase their liquor at the Dan Murphy’s store at Westfield Marion. There is also scope for one stop shopping at the Thirsty Camel outlet at the Warradale Hotel which shares access and parking with a large Coles supermarket. Subject to those observations, the appellant is correct in its contention that the opening of the proposed store at the Centre would make one stop shopping more readily available to residents in a substantial portion of the locality.

1. It is important to note that the proposed Liquorland store will not add to the choice of liquor available in or near the locality. It would offer a more limited range of products than the nearby BWS store at Ascot Park and a significantly lesser range than the Dan Murphy’s at Westfield Marion or the Fassina store at Somerton Park. The evidence is that Dan Murphy’s would generally offer lower prices than Liquorland. On the other hand, the proposed store should provide a greater range of liquor than the outlets attached to local hotels.

2. The need to make a second stop before or after shopping at the Centre would be the source of some inconvenience for those who desire to purchase liquor at the same place as their other shopping. However, this Court has observed that the public may have to tolerate some inconvenience in obtaining liquor.[28] In that light, the question is whether the need for those persons who would prefer one stop shopping to travel some 500 metres to the BWS store at Ascot Park causes an unacceptable level of inconvenience by community standards.

   [28]   Woolworths Ltd v Drase Coosit Pty Ltd [2010] SASC 13 at [53], Kourakis J.

3. While the evidence indicates that there may be some difficulty during peak hours in driving about 500 metres from the Centre to the BWS store, there would be no real problem in doing so outside peak periods. Mr Burns timed the off peak journey from the BWS to the Centre at 1 minute and 37 seconds while the reverse journey took 2 minutes and 17 seconds.

4. In that light, and having regard to the observation at [115] that residents in the north eastern and south western parts of the locality and also those near the Warradale Hotel have ready access to alternative one stop shopping venues and also the observations at [109] and [116], the evidence supports the finding of the Judge that the lack of a retail liquor merchant at the Centre will not give rise to an unacceptable level of inconvenience by community standards.

   The significance of the Centre

5. The appellant has sought to demonstrate community expectations through the evidence of the witnesses drawn from the local community. This Court has previously cautioned against placing too much weight on the evidence of such witnesses.[29] The reality is that an applicant for a licence often chooses a small number of witnesses from a population that, at least in the case of metropolitan localities, will number tens of thousands of people. The witnesses are obviously selected because their views will support the applicant’s case.

   [29]   Mandamo Pty Ltd v Crystalcorp Developments Pty Ltd (2004) 89 SASR 21 at [16], Anderson J, citing Nuriootpa Vine Inn Hotel & Motel Pty Ltd v Licencing Court [1999] SASC 512 at [15], Perry J.

6. The need for caution is particularly evident in this case. As the third to seventh respondents have pointed out, the appellant’s choice of community witnesses left large areas of the locality unrepresented. No witnesses were called from Ascot Park, Edwardstown, that portion of Marion south of the railway line and those parts of Mitchell Park and Marion south of the Marion Hotel. Residents in those areas would respectively have convenient access to the BWS store at Ascot Park, the Cellarbrations store at Castle Plaza, the Avoca Hotel, the Marion Hotel and the two liquor outlets at Westfield Marion.

7. I have already observed that the effect of s 58(2) is not that an application for a retail liquor merchant’s licence at a neighbourhood centre is likely to fail, while an application relating to a regional shopping centre is likely to succeed. Nevertheless, the Full Court found that the evidence in Fassina established that the contemporary community expectation was that a very large regional centre such as Arndale would include a retail liquor store.

8. The size of the Centre and the range of retail facilities it offers is quite limited compared to Arndale. While the Centre includes a major supermarket and several other retail outlets that would be attractive to one stop shoppers, the evidence of the community and expert witnesses does not demonstrate the existence of a clear expectation amongst the residents in the locality that the Centre would include a retail liquor merchant. The evidence of the community witnesses did not go beyond suggesting some enhancement of convenience if the application were to succeed. Moreover, I have previously observed that the weight which can properly attach to the evidence of the community witnesses is diminished by the fact that much of the locality was unrepresented.

9. For these reasons, combined with the findings made at [115] and [119],  I do not consider that the Judge erred in failing to find that that the licensed premises already existing in the locality do not adequately cater for the public demand for packaged liquor and that the proposed licence was necessary to satisfy that demand.

   The s 53 discretion

10. The appellant submits that the Judge made several errors in his observations as to how he would have exercised his discretion under s 53 if he had been satisfied that the requirements of s 58(2) were satisfied. In my view, the most significant of the grounds advanced by the appellant concerning the views expressed by the Judge is that his Honour took into account that the viability of “adjacent hotels” would be at risk if the application were granted. The appellant complains that this observation is contrary to the express requirement in s 53(1) that in exercising its discretionary powers a licencing authority is not to take into account an economic effect on other licensees in the locality affected by the application. The appellant also contends that the view expressed by the Judge was not based upon any evidence and was contrary to the evidence at trial.

11. Closely related to that ground of appeal was the complaint that the Judge failed to distinguish the dicta of the Licensing Court in the BWS-Seaford case referred to at [110] of his Honour’s judgment.[30] The passage from the BWS‑Seaford case cited by the Judge was to the effect that even without direct evidence the Judge was entitled to know that the creation of another liquor facility in the locality would strain the viability of the take away facility at a nearby hotel and liquor store. The risk to the viability of those businesses was too heavy a price to pay for issuing a licence to a virtually identical store no more than five minutes’ drive away. The Judge in the BWS‑Seaford case went on to state that the grant of the licence for the proposed BWS store at Seaford would not add to the range of facilities in the locality. The grant of the licence had the potential to result in the public having less choice rather than more choice. Thus, the grant of the proposed licence involved a risk that the competitive market for the supply of liquor in the locality might be compromised.

    [30]   [2015] SALC 19 at [93]-[94], Gilchrist J.

12. After referring to those remarks from the BWS-Seaford case the Judge in this case stated that the grant of a licence for the proposed Liquorland store may assist some consumers, such as the community witnesses, at the expense of other groups, especially the adjacent hotels and their patrons. Thus, the grant of the licence could impair achievement of the statutory object in s 3(1)(b) of the Act.

13. Section 3(1)(b) states that it is an object of the Act to regulate the sale, supply and consumption of liquor to further the interests of the liquor industry and industries closely associated with it such as the live music industry and the hospitality industry. His Honour also referred to the objective in s 3(1)(d) that the sale and supply of liquor should contribute to the amenity of community life.

14. At first glance there might appear to be some tension between the prohibition in s 53(1) upon taking into account an economic effect on other licensees in the locality when exercising the unqualified discretion to grant or refuse an application and, on the other hand, the requirement in s 3(2) for the licencing authority to have regard to the objects set out in s 3(1).

15. I do not consider that, when properly understood, there is any conflict between the objects in 3(1)(b) and 3(1)(d) and the statutory direction not to take into account the economic effect on other licensees when exercising the discretion under s 53(1). It is clearly not permissible to take into account that other licensees in the locality may suffer a loss of revenue if a particular licence application is approved. The statutory objective in s 3(1)(e) reinforces that prohibition by requiring a licencing authority to have regard to the objective of encouraging a competitive market for the supply of liquor.

16. The objective in s 3(1)(b) of furthering the interests of the liquor industry and closely associated industries is qualified by the statutory direction that these matters be considered in the context of appropriate regulation and controls and in accordance with the statutory scheme. For that reason, the object of furthering the interests of the liquor and associated industries does not prevail over the specific statutory prohibition in s 53(1) on taking into account the economic effect of a decision upon local licensees.

17. The approach adopted by the Judge at [111] of his reasons is contrary to the observations I have made concerning the interaction between the statutory objectives in s 3(1) and the prohibition in s 53(1). Whilst the grant of the licence may have the consequence of reducing competition or otherwise impairing the statutory objects, in order to reach that secondary conclusion the Judge made an assessment of the “economic effect on other licensees”. Such an assessment was clearly impermissible under s 53(1).

18. The other contentions made by the appellant concerning the views expressed by the Judge about the exercise of the s 53(1) discretion have already been considered in the context of his Honour’s deliberations under s 58(2).

19. While I consider that the Judge erred by taking into account the economic effect of the grant of a licence to the appellant upon other licensees in the locality, as his Honour did not actually exercise the discretion under s 53(1), the interests of the appellant were not adversely affected.

    Conclusion

20. I would dismiss the appeal.