S & J White Pty Ltd v Liquorland (Australia) Pty Ltd

[2011] SASCFC 103

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

S & J WHITE PTY LTD & ORS v LIQUORLAND (AUSTRALIA) PTY LTD

[2011] SASCFC 103

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)

29 September 2011

LIQUOR LAW - LICENSING - TRANSFERS - GENERAL

LIQUOR LAW - LICENSING - REMOVALS - GENERAL

Appeal from a decision of a Judge of the Licensing Court granting an application for the removal of a retail liquor merchant's licence - the applicant sought to remove the licence from premises in Gouger Street, Adelaide to premises in Hutt Street, Adelaide - whether the Licensing Court Judge erred in finding that the Hutt Street premises and the Gouger Street premises were in the same locality - whether the applicant was required to establish need at the Hutt Street premises pursuant to section 61(2) of the Liquor Licensing Act 1997 (SA) - whether the Licensing Court Judge erred in exercising his discretion under section 53 of the Liquor Licensing Act to grant the application.

Held: Appeal dismissed - the Licensing Court Judge did not err in finding that the two premises were in the same locality - section 61(2) of the Liquor Licensing Act does not apply to the removal of a licence from one premises to another premises where both premises are within the one locality - therefore, the applicant was not required to establish need - the decision of the Licensing Court Judge to grant the application was within his discretion.

Liquor Licensing Act 1997 (SA) s 53, s 60, s 61 and s 66, referred to.
Liquorland (Australia) v Hurley’s Arkaba Hotel Pty Ltd (2001) 80 SASR 59; Liquorland [2011] SALC 27; New World Supermarkets Pty Ltd v K Pandelis Nominees Pty Ltd (Unreported, Supreme Court of South Australia, Jacobs, Cox and Matheson JJ, 28 November 1990); Liquorland (Australia) Pty Ltd v Lindsey Cove Pty Ltd (2002) 81 SASR 337; D'Oro Distributors Pty Ltd v The Superintendent of Licenced Premises [1968] SASR 220, considered.

S & J WHITE PTY LTD & ORS v LIQUORLAND (AUSTRALIA) PTY LTD
[2011] SASCFC 103

Full Court:       Gray, Sulan and David JJ

THE COURT:

1. This is an appeal from a decision of a Judge of the Licensing Court granting an application for the removal of a retail liquor merchant’s licence. 

2. It was the case of Liquorland (Australia) Pty Ltd, the applicant and the respondent in this Court, that the retail merchant’s liquor licence was being transferred from premises to premises in the one locality.  It was said that in this circumstance Liquorland did not have to establish need for the proposed new premises; that is, the applicant did not have to establish “that the licensed premises already existing in the locality to which the licence is to be removed do not adequately cater for the public demand for liquor for consumption off licensed premises and the removal of the licence is necessary to satisfy that demand”.[1]  Further, it was said that the Licensing Court should exercise its discretion to grant the application.

   [1]    Liquor Licensing Act 1997 (SA) section 61(2).

3. The hotel objectors, the appellants in this Court, contended in the Licensing Court that the application was to remove the retail merchant’s liquor licence from premises to premises in different localities and as such Liquorland had to satisfy the Licensing Court of there being a need for the new premises.  It was pointed out that there was no attempt to establish a case of need.  Further it was said that the discretion of the Court should be exercised to refuse the application.

4. Liquorland had conducted a business in the City of Adelaide as the holder of a retail liquor merchant’s licence from premises on the corner of Gouger Street and West Terrace, Adelaide.  Liquorland proposed to remove the licence to premises in Hutt Street also within the City of Adelaide to conduct a retail liquor merchant’s business described as a “vintage cellars style business”.  The removal involved changing the nature of the business from an ordinary, commercial range Liquorland store to a specialised, upmarket range “vintage cellars” store.

5. It was Liquorland’s case that it had considered renovating the Gouger Street premises to continue business at that site, but could not come to terms with the landlord.  As a consequence, various alternative sites were considered.  An important consideration was to locate the business close to restaurants.  Liquorland found nothing suitable in Gouger Street.  However, it identified Hutt Street as an ideal location with ideal demographics for the operation of its business.  Liquorland had conducted its business under the licence at Gouger Street from 1977.  The licence had been removed to the Gouger Street address at that date.  The licence was first granted in or about 1960. 

6. Liquorland’s licence was suspended from about the time that it ceased business at Gouger Street, a period of a little less than two years before its application was heard in the Licensing Court. The suspension was extended from time to time and this Court was informed that the current suspension would come to an end in January 2012. The suspension was granted pursuant to section 66 of the Liquor Licensing Act 1997 (SA).[2]

   [2] Section 66 of the Liquor Licensing Act 1997 (SA) provides:

   (1)The Commissioner may, on the application of a licensee, suspend the licence held by that licensee.

   (2)A suspension—

   (a)     may be made for a specified period or until revoked by a licensing authority; and

   (b)may operate generally or in relation to a particular part of the licensed premises or a particular aspect of the licensee's business.

   (3)The Commissioner may revoke a licence if it appears that the licensee has ceased to carry on business under the licence.

7. Division 4 of Part 4 of the Liquor Licensing Act, and in particular sections 60 to 62A, deal with the removal of a licence. Part only of those provisions are relevant to the present proceeding and it is convenient to set out those provisions immediately:

   60—Premises to which licence is to be removed

   (1)     An applicant for the removal of a licence to premises or proposed premises must satisfy the licensing authority—

   (a)that the premises to which removal of the licence is sought are, or, in the case of premises not yet constructed, will be, of an appropriate standard for carrying on business under the licence; and

   (b)     that the removal of the licence would be unlikely—

   (i)to result in undue offence, annoyance, disturbance or inconvenience to people who reside, work or worship in the vicinity of the premises; or

   (ii)to prejudice the safety or welfare of children attending kindergarten, primary school or secondary school in the vicinity of the premises.

   …

   (3)     The licensing authority may dispense with the requirement that an applicant for the removal of a direct sales licence—

   (a)     satisfy the authority as to a matter referred to in this section; or

   (b)     submit plans.

   61—Removal of hotel licence or retail liquor merchant's licence

   (1)     An applicant for removal of a hotel licence must satisfy the licensing authority by such evidence as it may require that, having regard to the licensed premises already existing in the locality to which the licence is to be removed, the removal of the licence is necessary in order to provide for the needs of the public in that locality.

   (2)     An applicant for the removal of a retail liquor merchant's licence must satisfy the licensing authority that the licensed premises already existing in the locality to which the licence is to be removed do not adequately cater for the public demand for liquor for consumption off licensed premises and the removal of the licence is necessary to satisfy that demand.

   (3)     A reference to licensed premises already existing in a locality extends to premises in that locality, or premises proposed for that locality, in respect of which a licence is to be granted, or to which a licence is to be removed, under an existing certificate of approval.

   Although there is no express power to grant an application for a removal, the existence of such a power in the licensing authority is a necessary implication from the terms of Part 4. Licensing authority is defined in the Act to mean:

   (a)     in relation to a matter that is to be decided by the Court under this Act—the Court;

   (b)     in relation to any other matter—the Commissioner;

8. Section 53 identifies a broad unfettered discretion in the licensing authority when addressing applications, including applications for removal under Part 4. Section 53 provides:

   (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).

   (1a)   An application must be refused if the licensing authority is satisfied that to grant the application would be contrary to the public interest.

   (2)     A licensing authority should not grant an application as a matter of course without proper inquiry into its merits (whether or not there are objections to the application).

   (2a)   A licensing authority may—

   (a)     grant an application on an interim basis;

   (b)specify that a condition of a licence, permit or approval is to be effective for a specified period,

   and, in consequence, may give any necessary procedural directions in the matter.

   (3)     A licensing authority may, on such conditions (if any) as it thinks fit, vary or waive compliance with formal requirements relating to an application.

   (4)     If a licensing authority considers that an applicant should satisfy the licensing authority as to a certain matter for the purposes of determining the application, the licensing authority may, if the licensing authority thinks fit, nevertheless grant the application on the condition that the applicant satisfies the licensing authority as to the matter within a period determined by the licensing authority.

   (5)     If a licence, permit or approval is granted on a condition under subsection (4), the licensing authority may, on failure by the applicant to comply with the condition, revoke the licence, permit or approval, or suspend the licence, permit or approval until further order.

   (6)     A licensing authority may in proceedings accept an undertaking from a party in relation to the conduct of the proceedings and, on failure by the party to fulfil the undertaking, refuse to hear the party further in the proceedings subject to any further order of the licensing authority.

9. There were two principal issues arising for consideration on the hearing of the application. The Licensing Court Judge had to consider the “locality” of the existing licence and the proposed site to address section 61(2) of the Liquor Licensing Act. The Judge had then to consider whether to exercise his discretion under section 53 to refuse the application on the basis that he was “satisfied that to grant the application would be contrary to the public interest”.

10. The Licensing Court Judge, at the outset of his reasons, considered the application of section 61(2) of the Act and addressed in particular whether there was any onus on the applicant to establish need. In that respect, the Judge had regard to a decision of this Court in Liquorland (Australia) v Hurley’s Arkaba Hotel Pty Ltd,[3] and observed:[4]

    Ordinarily an application for the removal of a retail liquor licence carries with it an obligation to establish that the licensed premises already existing within the locality do not adequately cater for the public’s demands. In Liquorland v Hurley’s Arkaba Hotel and Others it was held that this requirement does not apply if the licence is being removed within the same locality. Or, to put it another way, if the proposed licensed premises are in the same locality as the existing licensed premises proof of need is not required.

    [Footnote omitted.]

    [3]    Liquorland (Australia) v Hurley’s Arkaba Hotel Pty Ltd (2001) 80 SASR 59.

    [4]    Liquorland [2011] SALC 27, [8].

11. The interpretation placed on section 61(2) in the Arkaba Hotel decision was the subject of debate and challenge in this Court. On the hearing of the application in the Licensing Court, both parties accepted that the interpretation accorded to section 61(2) in the Arkaba Hotel decision and the observations of the Licensing Court Judge referred to above, represented the common approach of the parties below. In our view, the construction of section 61(2) adumbrated in the Arkaba Hotel decision forms part of the ratio of that decision and was binding on the Licensing Court.  Later in these reasons, we discuss in some detail the Arkaba Hotel decision and reach the conclusion that it is not appropriate to reconsider that decision in this proceeding. 

12. It is to be understood that the applicant for removal was obliged to satisfy the licensing authority of the matters set out in section 60(1)(a) and 60(1)(b). It was also necessary for the licensing authority to consider whether section 61(2) had application. If the licensing authority formed the view that the application was to move the licence within the same locality, then the subsection would not have application and the applicant would not have to satisfy the issue of need. If, on the other hand, the application was to remove the licence from one locality to a different locality, then the applicant would be obliged to satisfy the licensing authority that the licensed premises already existing in the locality to which the licence is to be removed do not adequately cater for the public demand for liquor for consumption off licensed premises and that the removal of the licence is necessary to satisfy that demand.

13. On the hearing of the application, the respective contentions of the parties were clear. Liquorland’s primary contention was that the locality was the city of Adelaide within the four terraces – that is, the whole of the area of Adelaide boarded by North, South, East and West Terraces. An alternative submission was that the relevant locality was that area of Adelaide south of Victoria Square, extending to the west to West Terrace, to the South to South Terrace and to the east to East Terrace. Liquorland was seeking to move the licence from the Gouger Street premises to premises on Hutt Street, Adelaide. Both premises on either the primary or alternative submission were within the relevant locality. Accordingly, on Liquorland’s case, this was an application to move the licence from premises to premises within the one locality and therefore section 61(2) had no application which meant that there was no requirement to prove need.

14. The objectors to the application submitted that the relevant locality of the existing premises on the corner of Gouger Street and West Terrace was within a radius of the Gouger Street store and did not extend east beyond King William Street. If this contention were to be accepted, it would follow that the Hutt Street premises were in a different locality and section 61(2) would have application which would mean that Liquorland would be required to prove need. It was common ground that Liquorland had made no attempt to meet its obligation to satisfy the need criteria contained in section 61(2).

15. The hotel objectors placed particular emphasis on King William Street, including the tram line facility, in urging the Court to conclude that King William Street forms a physical barrier supporting its contention that there were two separate localities. 

16. Decisions of this Court underscored the flexibility of the word, or concept, “locality”.  The cases make it clear that it is a flexible word and its meaning can vary from case to case.

17. In D’Oro Distributers Pty Ltd v The Superintendent of Licensed Premise, Bray CJ said:[5]

    ...the authorities show that phrases like ... ‘locality’ in licensing legislation of this sort have received a fairly flexible and varying interpretation according to the type of licence sought and the nature of the business proposed to be carried on. Thus it has been held in Tasmania that for the purpose of a proposal to erect a first class Hotel at Wrest Point the whole of Hobart could be considered as one locality; and that for the purpose of a club licence the locality meant all those who would be concerned as club members or potential club members or persons affected or potentially affected by the existence of the club; and that in the case of a country hotel the area in fact served by it was to be regarded. It would appear that in the case of a hotel serving the tourist trade phrases like ‘the convenience of the public’ and ‘the requirements of the locality’ can be extended to a wide area, for example, the whole of New Zealand. …

    [Footnotes omitted.]

    [5]    D’Oro Distributers Pty Ltd v The Superintendent of Licensed Premises [1968] SASR 220.

18. The Licensing Court Judge addressed the question of whether there was one locality or two by considering the locality of the Gouger Street store.  In that respect, it is convenient to set out the Judge’s reasons:[6]

    In the end, what is required is a determination as to what was the locality of the existing premises, the Gouger Street store. That in turn requires a consideration of the physical locality of the patrons within the city, excluding passing trade, which might have been expected to use that facility.

    It has to be accepted that King William Street presents a not insignificant bar to pedestrian traffic. But Mr Ellyard said that a significant proportion of the customers that accessed the Gouger Street store did so by vehicle. That reflects commonsense. Patrons purchasing more than two bottles of wine or spirits or more than a six pack of beer could reasonably be expected to make their purchases through the convenience of a motor vehicle.

    In determining what the locality is, I think it is appropriate for me to rely upon my knowledge of the city. I am permitted to know that for residents and occupiers of offices along the southern side of North Terrace, west of Pultney Street, access to the southeast corner of the city by car is not a straightforward exercise. I am permitted to know that for those members of the public driving a motor vehicle for the purpose of purchasing say a carton of beer or a few bottles of wine might find it convenient to drive west along North Terrace and turn left into West Terrace and make the purchase from the Gouger Street store and proceed to make a round trip travelling east across the city and turning left into Pultney Street.

    [6]    Liquorland [2011] SALC 27, [25]-[27].

19. Having set this out, his Honour then addressed his knowledge and observations of the relevant area:[7]

    I appreciate that there is a bottle shop in the arcade near Bank Street. However, I am permitted to know that parking in the vicinity of this facility is difficult and that the more expansive parking facilities available at Gouger Street store might make it a more attractive option.

    I appreciate that there are two retail outlets in the Rundle Mall, but they cannot be readily accessed by a motor vehicle. I am permitted to know that if orders of more than one or two bottles of wine or of a carton of beer were made from these outlets these would probably require a delivery from the store.

    I am permitted to know that motor vehicles moving from the southern side of Grenfell Street, west of Pultney Street, may also have difficulty in accessing the east of Adelaide and again, in attending to their liquor needs, it might be convenient for them to travel across King William Street turning left into West Terrace again to access the Gouger Street store.

    There is no physical barrier to motor vehicles moving from the southern side of Pirie Street but the relevant proximity of a facility in West Terrace, as opposed to the premises in the east, might make the Gouger Street store just as attractive.

    I am permitted to know that for streets running from west to east further south of Pirie Street, notwithstanding the presence of the tram, motor vehicle access across King William Street is not that difficult.

    [7]    Liquorland [2011] SALC 27, [28]-[32].

1. His Honour concluded:[8]

   For all of these reasons I reject the hypothesis that in determining the locality in this case King William Street should be regarded as a barrier that provides the basis for including or excluding particular parts of the city.

   I find that people who worked and lived all over the city used the Gouger Street store including some who worked or lived east of King William Street and north of Grote and Wakefield Streets. I find that not all of their purchases constituted passing trade. This accords with the evidence of Mr Ellyard, who as I said earlier, thought that its market comprised of the whole of the city. I accept this evidence. I find that the relevant locality of the Gouger Street store is that area within the City of Adelaide that has boundaries to the east, south and west fixed by the relevant Terraces and to the north by the River Torrens.

   As the proposed premises are within the same locality subject to the issue of discretion the application should be granted.

   [8]    Liquorland [2011] SALC 27, [33]-[35].

2. It was complained on appeal that this approach was erroneous. It was said that section 61(2) placed emphasis on the licensed premises already existing in the locality to which the licence is to be removed and as a consequence, the Judge should have focused his attention on a determination of the locality of the Hutt Street premises.

3. In our view, this contention should be rejected. As discussed above, the interpretation placed on section 61(2) in the Arkaba Hotel decision meant that the subsection only applied to a removal from one locality to another.  The corollary of this proposition is that the subsection does not apply to moving of a licence to premises within the same locality.  Once this is understood, it may be seen that there is no objection to the approach taken by the Licensing Court Judge.  As noted above, the Judge concluded that the proposed premises, that is the Hutt Street premises, were in the same locality as the Gouger Street premises.  The question that remains is whether it was open to the Judge to conclude that the relevant locality of both the Gouger and Hutt Street premises was the one locality; that is, both premises were situated within the same locality. 

4. We have discerned no error of principle on the part of the Licensing Court Judge in undertaking this task. There was a body of evidence that justified the conclusions that he has drawn. We would uphold the Judge’s decision that the relevant locality of the Gouger Street store is that area within the city of Adelaide that has boundaries to the east, south and west fixed by the relevant Terraces and to the north by the River Torrens, is the one locality for the purposes of section 61(2).

5. This leaves for consideration the exercise of the discretion under section 53. It was submitted by the hotel objectors that questions of need arose as a factor to be weighed in the discretion. It was contended that the hotel objectors had placed evidence before the Licensing Court Judge from which it could be concluded that the needs of persons in the locality were being met and that in particular, there was no need for further premises in Hutt Street. It was contended that the Judge had not adequately addressed this evidence and that accordingly, his discretion miscarried by not having regard or appropriate regard to that evidence.

6. The discretion in section 53 is a broad discretion. It is described as an “unqualified” discretion. However, as this Court observed in Liquorland v Lindsey Cove:[9]

   In short, the discretion must be exercised for a purpose consistent with the Act, or which the Court in its experience finds appropriate or necessary in the proper application of the Act. On the other hand, the Court must be careful not to use the discretion as a basis for imposing views about what is desirable, unless those views are firmly linked to the principles on which the Act operates or is administered.

   [9]    Liquorland (Australia) Pty Ltd v Lindsey Cove Pty Ltd (2002) 81 SASR 337 (Doyle CJ with whom Martin and Besanko JJ agreed).

7. In the Arkaba Hotel decision, Perry J made further relevant remarks:[10]

   Authorities which emphasise the breadth of the discretion exercisable by the Licensing Court in the context of the precursors to s 53 of the present Act are of equal application. The discretion is ‘the widest of possible discretions’, although it is doubtful that it might properly be used to enable a grant to be made if specific criteria for such a grant, to be found elsewhere in the Act, are not met. That is not the case here.

   It should be noted that a most important change appears in s 53, in comparison with its predecessors. Section 53(1) provides that the licensing authority ‘... is not to take into account an economic effect on other licensees in the locality affected by the application’. That provision should be read together with s 3(e), which enumerates as one of the objects of the 1997 Act ‘to encourage a competitive market for the supply of liquor’.

   In the result, it was incumbent upon the court to approach the matter with a view to encouraging competition, and furthermore, to ignore the economic impact of the removal upon the trading operation of the other licensees in the locality.

   [Footnote omitted.]

   [10]   Liquorland (Australia) v Hurley’s Arkaba Hotel Pty Ltd (2001) 80 SASR 59, [80].

8. The Licensing Court Judge, having referred to those authorities, proceeded to discuss the proposed premises:[11]

   [The State Manager of the applicant] described the Gouger Street store as “a convenience driven everyday you need type business” that stocks between 1000 and 1500 lines designed to meet the average person’s needs. He said that in percentage terms it sold roughly equal amounts of beer, wine and spirits. He described the Vintage Cellar store that is proposed for the Hutt Street site as specialist fine wine facility carrying over 2000 lines designed to cater for the enthusiast. He spoke of the recruitment policy in respect of such facilities, which was focussed towards wine enthusiasts. He said that Vintage Cellar stores have a particular emphasis on international products and the national average sale in such stores was of the order of $60 per customer as opposed to half that amount in the industry generally. He contemplated a continually changing range of wines and offering a range of malt whiskeys. He said he expected the store would sell 65 to 70% wine, about 15% spirits and 10 to 15% beer, with the remainder being sundries.

   [Footnote omitted.]

   The hotel objectors raised the issue of need and the Judge dealt with those submissions.  It is convenient to set out his Honour’s treatment of those matters:[12]

   The Hotel objectors contend that I should approach the issue of discretion with factors similar to those that might be considered in the context of a new license in mind. [Counsel] for the Hotel objectors, reminded me that the Gouger Street store had been closed for over two years. He said that its customers had disappeared and have now been absorbed by the other facilities within the locality. He said that what is now sought is a different type of facility, in a smaller store with no on site parking in a different part of the city. He contrasted this application with one that involved an applicant who was about to close down from one site to move to another within the locality shortly thereafter to conduct the same sort of business providing the same service to the same clientele. He said that I should also be concerned about allowing the establishment of a business so close to an existing and similar facility in circumstances where there is no evidence that indicates that persons within the locality are not having their liquor purchasing needs met.

   [A spokesperson] for the Adelaide City Council, contends that the Hutt Street precinct is a delicately balanced area and that the introduction of another packaged liquor outlet is likely to result in an increase in the harmful and hazardous use of alcohol and that this is inconsistent with the needs and aspirations of that community.

   [A local resident] expressed his concern that the grant of this application might have an adverse impact upon the local community, which he described as a country town main street within the city.

   [Emphasis added.]

   [11]   Liquorland [2011] SALC 27, [41].

   [12]   Liquorland [2011] SALC 27, [60]-[62].

9. Having considered the broad range of matters put to the Court on the question of discretion, the Licensing Court Judge reached the following conclusion:[13]

   Whilst there are some matters pointing towards exercising my discretion not to grant the application the matters pointing towards granting it outweigh them. In my view the public interest does not require me, in the exercise of my discretion, to refuse the application.

   [13]   Liquorland [2011] SALC 27, [72].

10. Although the Licensing Court Judge did not make an express finding that the applicant had satisfied the Court of each of the matters referred to in sections 60(1)(a) and 60(1)(b), the inference may be drawn that he was so satisfied. The Judge’s findings allow this conclusion to be drawn. In any event, there was no complaint on this account in this Court.

11. We consider that the decision of the Licensing Court Judge to grant the application was well within his discretion.  He has not been shown to have made any error of principle.  He has had regard to all material factors and it has not been demonstrated that he has had regard to any extraneous matters. 

12. We return now to the issue of the construction of section 61(2). The hotel objectors submitted in this Court that a close analysis of the Arkaba Hotel decision discloses that the construction of the subsection was heavily influenced by what Perry J considered to be absurd results that would otherwise follow.  The circumstances arising in the Arkaba Hotel decision concerned the moving of an existing operating business a short distance on the same street.  Perry J took the view that to require an applicant for removal, in these circumstances, to meet the onus of establishing need would be burdensome to the point of being oppressive and he inferred that this was not the intention of the legislature.  This process of reasoning allowed him to resolve the ambiguity in the subsection and to read the section as referring to a removal from one locality to another and not the movement of the licence to premises within the one locality. 

13. The circumstances of the present matter are entirely different. The premises at Gouger Street have not been used as a retail liquor merchant’s business for almost two years. The Gouger Street premises now operate as a car wash, having been rebuilt for that purpose and the licence has been suspended. It transpires that the licence was first granted in 1960, removed to Gouger Street in 1977 and there has been no consideration of need for some 50 years. The considerations that led Perry J to construe section 61(2), in the way that he did, do not arise. The circumstances in the present matter, in the hotel objectors’ submission, suggest a contrary construction. Counsel for the applicant accepted that the Court in the Arkaba Hotel decision did not appear to have considered the type of circumstances arising in the present case, but contended that whatever construction might be adopted, difficulties might arise. 

14. The Arkaba Hotel decision followed on an earlier Full Court decision with respect to the progenitor to subsection 61(2) in the matter of New World Supermarkets Pty Ltd v K Pandelis Nominees Pty Ltd.[14]  There the Court was unanimous in adopting a similar construction.  We accept that there is ambiguity, but we take the view that however construed, the section will lead to some difficulty in application.  The High Court of Australia refused leave to appeal against the Arkaba Hotel decision.  In these circumstances, we consider that the decision in Arkaba Hotel should not be reconsidered. 

    [14]   New World Supermarkets Pty Ltd v K Pandelis Nominees Pty Ltd (Unreported, Supreme Court of South Australia, Jacobs, Cox and Matheson JJ, 28 November 1990).

15. Having regard to our view of the Arkaba Hotel decision, in circumstances such as those of the within proceeding where the licence is to be removed to premises in the same locality, it is not necessary for this Court to determine the issue of need.

16. For these reasons, we would dismiss the appeal.