New York Bar & Grill & Anor v West Paddock & Anor No. Scgrg-98-1422 Judgment No. S7020

[1998] SASC 7020

NEW YORK BAR AND GRILL PTY LTD & ANOTHER v WEST PADDOCK PTY LTD & ANOTHER

[1998] SASC 7020

Full Court: Prior, Lander and Wicks JJ

1 PRIOR J I agree with Wicks J.
2 There was material before the Licensing Court sufficient to satisfy it that the hotel licence sought and granted was necessary in order to provide for the needs of the public in the locality of a very large shopping centre. In particular, "…the wishes and preferences of the public in relation to matters of style of premises, the availability of choice and of a variety of outlets, matters of preference…" (Doyle CJ in South Eastern Hotel v Woolies (1998) 71 SASR 402 at 404) justified the grant of this licence. This is not a case where it can properly be said that the Judge failed to address the question of need in the manner required by s58(1) (Japling Pty Ltd & Ors v Shenannigans One Pty Ltd & Ors (1998) SASC 6911 at [24]). No error of law is made out.
3 The appeal should be dismissed.
4 LANDER J     I have had the opportunity of reading, in draft, the judgment of Prior J and Wicks J.
5 I do not believe that the need evidence which was presented in the Court below was adequate to support the learned Trial Judge’s conclusion.  The evidence led in respect of need was from four persons, two of whom were associated with the applicant, to the effect that they would like to eat and drink in premises, which did not cater for gaming machines.  I do not believe that four persons’ evidence that they prefer to eat and drink in places which do not cater for persons who wish to use gaming machines is any real evidence of need.  The other evidence led from a restaurateur and the applicant did not add very much to that evidence.
6 There was evidence of the size of the Marion complex and the volume of persons who frequent the complex.  Many tens of thousands of people a day visit Marion.  It is not possible to say that four persons’ claimed preferences indicates a need or indeed that they represent a cross section of tens of thousands of persons.
7 Within the last twelve months the Licensing Court has approved a Hotel Licence and a Special Circumstance License, the terms of which virtually amounted to a Hotel Licence within an area of 100-200 metres of these premises.  It was necessary, in my opinion, to have regard to whether those two licensed premises would satisfy the need of persons before determining whether there was a need for a further Hotel Licence.  I have doubts whether the learned Trial Judge correctly assessed the capabilities of those two recently licensed premises to satisfy the needs within the Marion complex.
8 In my opinion, there was not sufficient evidence upon which the learned Trial Judge could have arrived at the conclusion which he did.
9 I appreciate that this appeal is brought from a Tribunal which has an expertise not enjoyed by this Court but, in my opinion, that expertise cannot substitute for the obligation to assess the evidence before the Court.  There was such a paucity of need evidence that the application should have been refused.  The paucity of that evidence coupled with the failure to adequately assess the impact of the two recently licensed premises meant, in my opinion, that the application had to fail.
10 However, my view is a minority one and it will not affect the result in this matter.  Because of the time available at this time of the year, detailed reasons cannot be given for some time but the respondent should not be delayed in its venture whilst that time is taken.
11 In those circumstances I would order that the appeal should be allowed and the order of the Licensing Court Judge granting the licence should be set aside.
12 WICKS J               This is an appeal from a decision of the Licensing Court of South Australia granting a hotel licence to West Paddock Pty Ltd ("the Applicant") in respect of premises situated within Westfield Shoppingtown at Marion.  The premises are situated on a walkway within the shopping centre known as Eat Street South.
13 Evidence was given to the Licensing Court that the hotel in question would be known as Tiffanies.  The concept for the venue was to be a café and lunch facility, offering dinner and bar facilities in the evening and entertainment and function facilities at night.  According to the evidence Tiffanies would focus on style and quality.  To that end, the evidence of the applicant (which was admitted without objection) was that it had collaborated extensively with designers and architects in order to create an earthy, attractive and modern feel for the premises. 
14 A decision was made to set up premises in the Westfield Marion Shoppingtown in view of the fact that this centre was to be extensively renovated.  The applicant contended that renovations had been made to the Centre transforming it into an energetic shopping and entertainment precinct. 
15 The applicant’s evidence was that the furthest thing from its mind when planning was the traditional type of hotel arrangement of a front bar, dining room, and gaming machine room with a bottle shop for over-the-counter sales.  The applicant proposed to avoid being associated with the traditional hotel image.  The plan was that women would be the main source of custom and the premises would be designed so that they would be appealing to women as well as to men.  Gaming machines and other forms of gambling would not be available.
16 There are a number of hotels and restaurants within the confines of the Marion Shoppingtown Complex.  They are as follows:
.        Casuarina - a licensed restaurant - liquor without meals at tables
.        Spargo’s Café Wine bar - a licensed restaurant but liquor without meals at tables permitted
.        New York Bar and Grill - a licensed hotel - bar facilities, dining and gaming machines
.        Shenannigans Irish Pub - the holder of a special circumstances licence - a hotel with emphasis on bar facilities
.        Porter’s Liquor Marion - a retail liquor store and the holder of a retail liquor merchant’s licence
.        Pepper’s Restaurant - a licensed restaurant
.        Billy Baxter’s - a licensed restaurant
.        Pinochio’s Café - a licensed restaurant but liquor without meals at tables permitted

17 On this list there are two establishments which would offer a similar range of facilities to those offered by the applicant.  They are the Shenannigans Irish Pub and the New York Bar and Grill.
18 Shenannigans Irish Pub was to provide bar and dining facilities with an Irish theme and in an Irish pub atmosphere.  In that facility, emphasis would be on the bar trade more than on dining facilities. Shenannigans did not raise any objection to the Tiffanies application to the Licensing Court.  The other facility is the New York Bar and Grill which is the holder of a hotel licence.  The owners of this facility have objected to the Tiffanies proposal.  At the time of the Tiffanies application to the Licensing Court, neither Shenannigans Irish Pub nor the New York Bar and Grill had begun to carry on its business.
19 It is proposed that the New York Bar and Grill will have a gaming room in which some 40 gaming machines will be installed.
20 Objections to the grant of a hotel licence to the applicant were made by the proprietors of the Flagstaff Hill Hotel and the Warradale Hotel and also by the proprietors of the proposed New York Bar and Grill.  Objections on the part of the Flagstaff Hill Hotel and the Warradale Hotel were withdrawn during the hearing before the Licensing Court.  At the conclusion of the proceedings before the Licensing Court, the proprietors of the New York Bar and Grill were the only objectors to the application, the subject of this appeal.
21 The hearing of the application proceeded before the Licensing Court and a decision was handed down by the Court on 2 October 1998.  The application for a hotel licence was granted to the applicant in respect of the premises, the subject of this appeal.  The proprietors of the New York Bar and Grill, as objectors, appealed to this Court against the decision of the Licensing Court.
22 In the course of the evidence given before the Licensing Court, Mr Pope, a witness on behalf of the applicant, drew a distinction between the facilities and service to be offered by Tiffanies and the facilities and service offered by the New York Bar and Grill.  He described the former as "more stylish and laid-back".  He said:
"We are not really letting in the mums and the older people who would be playing the pokie machines who would want to be fed as well.  In the evenings we’re really targeting the female market in the 23 to 40 [age group] and they’re not really the poker machine playing crowd that we’re targeting."

23 On further discussion of this matter in evidence, Mr Pope said of the patrons who come to use the poker machines that they are accustomed to cheap food, presumably subsidised by the profits generated from the poker machines.  Mr Pope made it clear that he did not want persons of that kind in his hotel.
24 The applicant must establish a "need" for its hotel within the terms of subs58(1) of the Liquor Licensing Act 1997. That subsection reads:
"58(1) An applicant for a hotel licence must satisfy the licensing authority by such evidence as it may require that, having regard to the licensed premises already existing in the locality in which the premises or proposed premises to which the application relates are or are to be situated, the licence is necessary in order to provide for the needs of the public in that locality."

25 As a first step, it is necessary to nominate "the locality" in terms of subs58(1). The Licensing Court said:
"I think all are agreed that the primary catchment area of the whole complex can be regarded as the locality for the purposes of the section.  This is where the bulk of the attracted population come from."

26 Before the Licensing Court was a report dated 25 October 1995 of Jebb Holland Dimasi in relation to the Marion Centre.  That report defined a primary trade area as follows:
"The Primary Trade Area for Marion is basically within 4 kms of the Centre and is an area which should be strongly dominated by the Marion Shoppingtown."

27 In South-Eastern Hotel v Woolies Liquor Stores Pty Ltd (1998) 71 SASR 402 Doyle CJ considered the question of need at p404. He said:
" The language used by Parliament suggests that, as before, the focus of s58(2) is upon the demand for liquor and the availability of liquor, whereas the focus of s58(1) is on the needs generally of the public in the locality, although of course those needs are to be considered in relation to the facilities that might be provided by a hotel licence. That broader focus in relation to a hotel licence is apt to enable more emphasis to be given to the wishes and preferences of the public in relation to matters of style of premises, the availability of choice and of a variety of outlets, matters of preference, matters of convenience and so on."

28 In addressing the question of need, it is important that there be an appropriate description of the Marion Shoppingtown Complex.  As a shopping centre, it is regarded as very substantial, serving a large population.  According to the evidence before the Licensing Court in this matter, the Centre has a 30 cinema complex.  Over the last twelve months, nearly 2,000,000 tickets were sold.  Visitors to the Shoppingtown Complex itself number on average well over 1,000,000 per month.
29 The following are some statistics taken from the reasons for judgment of the Licensing Court and in respect of which it would appear that there is no dispute:

1. Floor Space

The retail area floor space of the centre in 1995 was 56,738 square metres.

The current floor space of the centre is 121,296 square metres, which constitutes approximately 90% of the total retail shopping floor space in the Primary Trade Area [as defined in the Jebb Holland Dimasi Report referred to previously].

1. Retail Sales

In 1993/1994, the retail sales volume of the centre was $256 million, of which 75% ($192.1 million) was attributable to residents of the *Main Trade Area & $92 million was attributable to residents in the Primary Trade Area.

In 1993/1994 the centre captured almost a quarter (23.9%) of retail sales in the Primary Trade Area.

For 10 months ending August 1998 the centre’s retail sales volume was $375 million, with the first 12 month forecast being $400 million.

1. Cinema

In the 10 months since the Cinema mega complex opened, it has serviced approximately 2 million moviegoers.

This equates to an average of 6,666 moviegoers passing through the centre each day.  In peak periods, such as Tuesday evenings, it is more than that number and on quieter days (Monday and Wednesdays) less.

1. Number of shoppers

The quietest month for which figures are available (October 1997) shows just under a million people (916,000) visited the centre.

This equates to an average of almost 30,000 (29,548) people passing through the centre each day in a quiet month.

In a busy month, such as December 1997, more than 60,000 people (60,838) pass through the centre on average each day."

*The Main Trade Area is the aggregate of the Primary Trade Area and Secondary Trade Area.  The Secondary Trade Area includes an area in a radius beyond that of the Primary Trade Area and includes Glenelg, Kurralta Park, Cumberland Park, and Blackwood.

30 In the proceedings before the Licensing Court, evidence of "need" was obtained from a number of witnesses.  I will deal with that matter shortly.
31 I regard the Marion Shoppingtown complex as something of a special case.  The statistics as to the size of the complex and its use are impressive, particularly when one looks at the number of department stores, supermarkets, convenience stores and cinemas involved.  We have here a very sizeable shopping and entertainment complex.  In my opinion, one would expect the complex to have a number of establishments serving food and beverages.  Each establishment within the complex will have or develop its own qualities and will be orientated to attracting a clientele of a particular character. 
32 In the case of this complex, one would have to view the requirements of "need" quite differently from, say, a need fulfilled by a neighbourhood hotel.
33 I now turn to the grounds of appeal.
34 The first is that in finding that s58 of the Licensing Act has been satisfied, the Licensing Court included "aversions" in addition to the usual and accepted interpretation "taste, preference and convenience". In my opinion, "aversion" is a proper expression in the context in which it has been used. In this special environment, the needs of the public will not be served only by the New York Bar and Grill because it will be seen by some prospective customers as another hotel serving the needs of those who come to play gaming machines. According to the evidence before the Licensing Court, the gaming machines in the premises of the New York Bar and Grill will be discretely located in an area at the rear, an area which will be separated from the main premises by an opaque door. This fact was pointed out to the "needs" witnesses.
35 There are persons in the community who have an aversion to gaming machines and do not wish to patronise premises where they are provided.  This became clear from the evidence of some of the "needs" witnesses on the inquiry leading to the grant of the licence.  In my view, the first ground of appeal has not been made out.
36 The second and principal ground of appeal was that the existing licensed premises (including the Shenannigans Pub and the New York Bar and Grill) and unlicensed premises would be in a position to meet the needs of the public in the applicable locality. 
37 In my opinion there is clearly a demand for licensed premises which meet the needs of the public to use and enjoy playing gaming machines.  Equally, it is clear that there is a demand for licensed establishments to meet the needs of the public to enjoy food and drink and services offered free from gaming machines.  One must not overlook the size of the Marion complex.  In view of the very large numbers who frequent the complex, not only for shopping, but also for entertainment, the level of activity and the diversity of taste, preference, convenience and aversion would appear to be such that there is a need for the style of licensed hotel which is being offered by Tiffanies.
38 The need in question must be a need in the locality.  Earlier in these reasons, I made reference to the fact that the Licensing Court found the locality in question to include an area of 4 kms or so from the Marion Shoppingtown Complex.  It seems to me that the Complex is a locality in itself and that members of the public resorting to it have needs which are very different from the needs of the public in the diverse neighbourhoods which surround it.  What is required in the Complex is a variety of styles in food, drink, entertainment and atmosphere which will enable members of the public to have a choice of hotel or restaurant to attend whilst in the Complex for the purposes of shopping and entertainment.  I do not think that the second ground of appeal has been made out, nor do I think that the approach of the Licensing Court with respect to locality overlooks these factors.
39 In the third and fourth grounds of appeal, the appellants contended that the Licensing Court erred in law in granting a new hotel licence for premises situated within 200 metres of the New York Bar and Grill and without waiting to see if the Shenannigans Irish Pub and the New York Bar and Grill could fill the available need.  The appellants further contended that any alleged aversion to gaming machines in the New York Bar and Grill should not be taken into account before the premises are operational. 
40 In my view, if there is to be more than one licence within the Marion Shoppingtown complex, it is immaterial for the purposes of subs58(1) that they are situated close to one another. A need is being fulfilled by a diversity of establishments in a centre to which large numbers of people are accustomed to resort for shopping and recreation. The evidence of aversion to gaming machines given by the "needs" witnesses was general in character. The premises of the New York Bar and Grill were described to the witnesses in a general way and their evidence was given in that context. Their criticism was not of the New York Bar and Grill per se, but with establishments where gaming machines are offered as part of the entertainment. I consider that the third and fourth grounds of appeal have not been made out.
41 The appellant contended in the fifth ground of appeal that it was not possible for the needs witnesses to give evidence in relation to the gaming question before the New York Bar and Grill had opened for business. The evidence given on this question was very general in character. However, the Licensing Court is a specialist tribunal and can, to a degree, make its own observation of the subject before it. In Temple v Liquor Licensing Commission (1986) 138 LSJS 378, Bollen J said at p382:
"                 But the Court is a specialist Court.  Its incumbents must come to know much about contemporary desires, expectations and customs in and about the buying and consumption of liquor.  The Judge is expected to inspect.  He does inspect premises for which a licence is sought and premises which already exist in the locality for the selling of liquor.  I think that the Judge may use the knowledge which he has and use what he sees on inspection as evidence.  He must marry that with oral or documentary evidence given and tendered to him.  He must not merely follow some idiosyncratic course based on his own beliefs and observations.  But he does not, and should not, put his specialist knowledge out of his mind."

42 Also in Lovell v New World Supermarket (1990) 53 SASR 53, Cox J said at p58:
"The Licensing Court is a specialist tribunal and the Judge is entitled to use his own knowledge and judgment to confirm, as it were, the needs and demand evidence.  It follows that it will rarely be enough for an unsuccessful objector to argue on appeal that such evidence, taken alone, was insufficient to justify the Court’s findings."

43 It is clear from the reasons for judgment of the Licensing Court that it has not relied upon the needs witnesses alone but that the learned Judge comprising the Court has used his own knowledge and experience to assist in making his findings leading to the grant of the licence.  The fifth ground of appeal has not been made out.
44 The question of need under s58 of the Liquor Licensing Act 1997 was last considered by the Full Court in Japling Pty Ltd v Shenannigans One Pty Ltd (Full Court, S6911, 4 November 1998, unreported) where the Court had occasion to consider whether the issue of "needs" had been properly addressed by the Licensing Court. In giving the principal judgment of the Court, Debelle J said, at pp9-10:
" In this case, the Judge has entirely failed to examine whether existing licensed premises sufficiently cater for the needs of the public. Instead, he has approached the question by finding that the premises would be attractive and has then considered whether a saturation point has been reached. All due weight must be given to the fact that the decision appealed from is that of a specialist tribunal with a very wide discretion. However, as the Judge has failed to address the question of need in the manner required by s58(1), the appeal must be allowed."

In my view, there was no such failure on the part of the Judge constituting the Licensing Court in the case at bar. 
45 In my opinion, no relevant error on the part of the Licensing Court has been shown.  I would dismiss the appeal.