Smith v Hardy

[2000] NSWSC 1175

Reported Decision: 50 NSWLR 478

New South Wales

Supreme Court

CITATION:	Smith v Hardy & Anor [2000] NSWSC 1175
FILE NUMBER(S):	SC 12376/00
HEARING DATE(S):	11/12/00
JUDGMENT DATE:	14 December 2000
PARTIES :	Anthony Charles Leybourne Smith v Peter John Hardy & Anor
JUDGMENT OF:	Whealy J at 1

LOWER COURT JURISDICTION :	Licensing Court of NSW
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Full Bench

COUNSEL :	S. Austin QC; A. Hatzis - Plaintiff Ian Lawry - Defendant
SOLICITORS:	Back Schwartz Vaughan - Plaintiff Phillips Fox - 1st Defendant
LEGISLATION CITED:	Liquor Act 1982 Liquor Act 1912 (as amended) Interpretation Act 1987
CASES CITED:	Armstrong v Edgecock (1984) 2 NSWLR 536 Kingston v Keprose Pty Limited (1987) 11 NSWLR 404 at 423 Bropho v Western Australia (1990) 171 CLR 1 O'Sullivan v Farrer & Anor (1989-90) 168 CLR 210 Ex parte Watman (1963) NSW 580, 583 Lorence & Ors v Abraham (1982) 2 NSWLR 551 at 555
DECISION:	Summons dismissed; The plaintiff is to pay the 1st defendant's costs

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WHEALY J

THURSDAY 14 December 2000

12376/00 - Anthony Charles Leybourne SMITH v Peter John
HARDY & Anor

JUDGMENT 1    HIS HONOUR: This is an appeal on a question of law arising under the provisions of the Liquor Act 1982. 2 The first defendant, a nominee on behalf of Franklins Management Services Pty Limited (“Franklins”) made an application on 21 December 1999 for the conditional removal of the off-licence held by him from premises at 112/114 Norton Street, Leichhardt (“the existing premises”) to part of premises known as Franklins Big Fresh, Cnr Marion Street and Flood Street, Leichhardt (“the proposed premises”). 3 Certain aspects of the history of this licence were dealt with by the Full Bench of the Licensing Court in its decision of 31 July 2000. Apparently, the licence had traded as an off-licence (retail) at 55 Norton Street until about 1997 or 1998. It had traded as Leichhardt Liquor Supply. The shop premises were acquired and demolished to make way for a new shopping centre in Leichhardt known as Norton Plaza. After the closure of the business at 55 Norton Street, the licence was moved to the existing premises which are about 250 metres north of the original location and on the opposite side of Norton Street being about 40 metres south of Marion Street. The licence was exercised at those premises for a short time trading as Fresh Point Liquor Supplies before it was acquired by Franklins. The licence was held by the first defendant in a dormant capacity at that location which is described as a double sided two storey terrace style shop. These premises were, in July 2000, vacant and for sale. 4 It is clear that the first defendant held the licence at the existing premises in a dormant capacity with an ultimate intention to move it to, and trade it from, part of the Leichhardt Marketplace Shopping Centre (“Marketplace”). The strategy selected was to make an application to remove the licence in its dormant capacity to a “broom cupboard” in the proposed premises in Marketplace. Why a “broom cupboard” was selected as an appropriate receptacle is not clear. Subject to the Licensing Court approving the removal, it was the first defendant’s further intention, when suitable premises became available within Marketplace, to conduct a liquor store in conjunction with the Franklins Big Fresh Supermarket in that shopping centre. To achieve this purpose, it would be necessary to make a second application to move the licence from the proposed premises to the actual trading location. 5 The plaintiff is the New South Wales Merchandise Manager (Liquor) for Woolworths Limited (“Woolworths”). The plaintiff objected to the removal application. The principal ground of objection on which the plaintiff relied is that provided for in s 45(2) of the Liquor Act 1982. This section provides: -

“Subject to s 57, objection to the grant of an application for, or for the removal of, a hotelier’s licence or an off-licence to sell liquor by retail may be taken … on the ground that the needs of the public in the neighbourhood of the premises to which the application relates can be met by facilities for the supply of liquor existing in, and outside, the neighbourhood.”

6 In these proceedings, this ground of objection has been described shortly as “the needs ground”. 7 Section 57(4) of the Liquor Act 1982 is in the following terms: -

“Section 45(2) does not apply to a removal of a licence to premises within the same neighbourhood as the premises from which it is proposed to remove the licence.”

8 Section 57(1) provides: -

“The Court shall not grant an application for a removal of … an off-licence to sell liquor by retail to a place outside the neighbourhood of the premises from which it is proposed to remove the licence unless it is satisfied that the removal of the licence to the proposed new site will not affect detrimentally the interests of the public in the neighbourhood of the premises from which it is proposed to remove the licence.”

9    The course of the proceedings is helpfully described by Mr Tony Schwartz solicitor, in his affidavit of 6 September 2000. I shall set out the matters dealt with in paras 7 to 10 of the affidavit.

“7. With the consent of the plaintiff and the first defendant, the second defendant - the Licensing Court - made a preliminary determination of whether, due to the provisions of s 57(4), the ground of objection set out in s 45(2) of the Liquor Act 1982 was open to the plaintiff, and, therefore, whether evidence on that ground of objection was relevant.
8. In my opinion, if the objection pursuant to s 45(2) is available to the plaintiff that evidence would have taken approximately one hearing day.
9. After hearing evidence and submissions from the plaintiff and the first defendant on 25 May 2000, the second defendant determined on 31 July 2000 that: -
(a) the neighbourhood of the existing premises encompassed the site of the proposed premises;
(b) consequently it was not open to the plaintiff to take objection to the application on the grounds set out in s 45(2) of the Liquor Act 1982 .
The second defendant did not define the neighbourhood of the proposed premises in order to determine whether the proposed premises were in the “same” neighbourhood as the existing premises.
10. As a consequence of those findings on 31 July 2000, and following submissions from the plaintiff and the first defendant on 10 August 2000, the second defendant granted the application on 10 August 2000.”

The Present Proceedings

10    On 6 September 2000, the plaintiff filed a summons in which a declaration was sought that the determination of the Licensing Court made on 31 July 2000 and forming part of its adjudication made on 10 August 2000 (“the determination”) was erroneous in law; an order that the determination be quashed, and a further order that the application of the first defendant be remitted to the second defendant to be dealt with according to law. The stated grounds upon which relief was sought were as follows: -

“ Grounds
1. The second defendant was in error in its interpretation of s 57(4) of the Liquor Act 1982 when it held that it was not open to the plaintiff to take objection to the first defendant’s application on the grounds set out in s 45(2) of the Liquor Act 1982 .
2. In consequence of the error in ground 1, the second defendant failed to apply the correct legal test to the facts it had found.
3. In further consequence of the error in ground 1, the second defendant failed to find facts which were necessary to enable the second defendant to make a correct legal determination of the plaintiff’s objection.”

11    The proceedings came before me on 3 November and again on 9 November 2000. An application for an urgent hearing was made on the basis of the material appearing in the affidavit of A. M. Wennerbom sworn 3 November 2000. Urgency was claimed in that, after the Licensing Court’s decision on 10 August 2000, Franklins had secured tenure of Shop 31 in Marketplace. An application for removal of the off-licence retail from the proposed premises to a new location at Shop 31 in the complex had been lodged with the Licensing Court and allocated a return date of 11 December 2000. Franklins was anxious to commence fit out of the new shop and to trade it at the new location as soon as possible. No objection was raised by the plaintiff to my dealing with the matter on an expedited basis. Directions were given as to the filing of written submissions and the matter was listed for hearing on 11 December 2000. At the hearing, counsel were permitted to make brief oral submissions in support of the written submissions which had been filed.

The Licensing Court Decision

12 As I have said, the second defendant gave its decision on the “neighbourhood” issue on 31 July 2000. The Court, having set out the terms of ss 45(2), 57(1) and 57(4) of the Act, stated the issues before it in the following terms:

“The application has been objected to by Mr A. C. L. Smith in his capacity as New South Wales Merchandise Manager, Liquor, for Woolworths Limited and the first ground of objection is the needs ground which concerns whether the needs of the public in the neighbourhood of the proposed premises to which the application relates can be met by facilities for the supply of liquor existing in and outside of the neighbourhood of the proposed premises.
That objection would require determination of the neighbourhood of the existing premises, and the Court has been asked to deliberate separately on that issue. The applicant says that as the removal is in fact to a place within the same neighbourhood as the existing premises, this objection is not available to the objector.
The Court is accordingly asked to consider matters of both fact and law in relation to this ground of objection. The factual matters relate to the determination of the neighbourhood of the existing premises of the licence, and, if necessary, of the proposed premises. The legal question is whether if the licence is removed to premises within the neighbourhood of the existing premises, it is necessary to also determine that the neighbourhood is identical with the neighbourhood of the proposed premises before the exception in s 45(2) will apply.”

13    The resolution of these issues centred around a dispute between a number of town planning experts who had provided or gave evidence in the proceedings. Mr George Wellings Smith, a Town Planner called by the first defendant, expressed the view that the neighbourhood of the existing premises was in fact the suburb of Leichhardt. It was his view that the proposed premises were, as a consequence, within the neighbourhood of the existing premises. A second planner, Mr Robert Chambers, called on behalf of the first defendant, did not disagree with Mr Smith’s views. Mr Stephen Connolly, Town Planner called on behalf of the plaintiff, suggested a much more restricted neighbourhood and one which did not extend to the Marketplace location. 14    In view of the differences between Mr Smith and Mr Connolly, it became necessary for the Licensing Court to determine the neighbourhood of the existing premises as a question of fact. The Court cited the Court of Appeal’s decision in Armstrong v Edgecock (1984) 2 NSWLR 536 where the relevant principles in relation to the legal issue involved in the aspect of neighbourhood in s 45(2) were considered. At p 9, the Licensing Court said: -

“The Court in applying this test to the existing premises has had regard to all of the factors outlined by both Mr Smith and Mr Connolly. We are, however, not convinced that the matters which Mr Connolly has drawn to the Court’s attention have demonstrated any convincing reason to find a separate neighbourhood apart from the suburb of Leichhardt as a whole, and we accordingly accept the neighbourhood postulated by Mr Smith in respect of these premises. We are accordingly satisfied that the Marketplace site is within the neighbourhood of the existing premises and that accordingly the Court is not bound to be satisfied under s 57(1) that the removal will not detrimentally affect the interests of the public in the neighbourhood of the existing premises.”

15 On its face, this finding as to neighbourhood should have resolved the issue as to whether the s 45(2) objection was able to be raised at the hearing. Having regard to that factual finding, it seems quite clear that the proposed premises were within the same neighbourhood as the premises from which it was proposed to remove the licence. If s 45(2) did not apply to the removal (because of the provisions of s 57(4)), it followed that no objection under s 45(2) could be raised to the application. 16 It seems, however, the position became complicated. This was so because, while Mr Smith’s evidence was quite clear that the Marketplace was within the neighbourhood of the existing premises, his evidence went on to suggest that, were it necessary to examine the neighbourhood of the premises within the Marketplace Shopping Centre, he was of the view that the neighbourhood of those premises would be unlikely to extend to include the existing premises. Why he took this view does not appear to be clear from the Licensing Court’s decision. Mr Connolly, consistently with the view he had expressed about the neighbourhood of the existing premises, appears to have taken a view that the neighbourhood of the Marketplace premises would not extend to embrace the premises at 112-114 Norton Street, Leichhardt. 17 In the usual run of cases, where a licence is sought to be removed from one premises to another and it is found that the proposed premises are in the neighbourhood of the existing premises, it will be the situation that the neighbourhood of each set of premises is identical. That this is so will be self evident from the very proximity of the two locations. In a rare case (and apparently the present removal fell into this category) a removal from A to B will occur in the unusual situation that B is located at or towards the boundary of the A neighbourhood. In such a situation, there may be legitimate doubt as to whether the neighbourhood of B (if that were a relevant matter) was precisely co-extensive with neighbourhood A. 18 It was in this context that the specific issue, which was the subject of this appeal, was raised by the plaintiff. The Licensing Court identified the issue in this way (p 10): -

“The issue for determination is whether the neighbourhood of the existing premises and the neighbourhood of the proposed premises must in all respects be identical or whether it is sufficient for the purposes of section 57(4) that the neighbourhood of the existing premises extends to include the proposed premises.”

19    The Licensing Court ultimately came to the view that if the applicant has established that the proposed premises are within the neighbourhood of the existing premises, it is not open to an objector to take objection on the issue of the needs ground. The Court was of the view that while the construction urged by each of the parties was, at least, arguable, the view it preferred was more consistent with the language of the section, the context in which it was placed and the manifest purpose of this particular aspect of the legislation. The crux of the Court’s reasoning appears in the following passages at pp 12 and 13:

“Whilst section 57(4) has existed in its present form for many years this is the first occasion that its (sic) has been argued that the two neighbourhoods must be identical before the section applies.
Looking at the section from a prospective objector’s point of view, who otherwise seeks to object to the removal on the ground provided by S.45(2), it could be said that his/her interests are not prejudiced where the removal is within the same neighbourhood because the licence sought to be removed is an existing competitor serving the same neighbourhood and public within it. If, as in this case the neighbourhood of the existing premises encompasses the proposed premises, then the licence upon removal is still so situated as to meet the needs of the public of that neighbourhood, despite the licence now being operated from a different location within the neighbourhood. The Woolworths licence at Marketplace has had for many years the competition provided by the applicant’s licence, originally when it operated at 55 Norton Street, and subsequently from 112-114 Norton Street. Whilst the removal of the licence to the Marketplace may provide greater competition to the Woolworths outlet that is not the relevant consideration. The test is whether the licence will remain within its present neighbourhood and hence be available to continue to meet the needs of the public within it.
This would seem to be an interpretation which not only has continued for many years, but is consistent with the objectives, as we understand them, of the legislation. In particular it would seem that to eliminate reference to the interests of the persons in the neighbourhood in which the premises are to remain, but to require an examination of the needs of the public in the neighbourhood of the premises to which the licence is to be removed, would be to require establishment of irrelevant interests, since the section’s purpose is to acknowledge the continuing response to the needs already being served. This cannot surely be the result which was intended and it is accordingly appropriate that the Court interpret the section so that this anomalous outcome does not occur.”

Submissions by behalf of the Parties

20 The plaintiff submits that, upon the proper construction of ss 45(2) and 57(4), the needs objection will be available to be taken in a removal application unless the neighbourhood of the proposed premises is the “same” neighbourhood as the existing premises. That is to say, the neighbourhoods must be identical. If this construction be correct, two consequences flow in the present appeal; first, the second defendant’s decision will be found to have been incorrect as a matter of law; secondly, the matter will need to be remitted to the second defendant to reconsider the factual issues so as to determine whether the needs ground of objection should be made available to the plaintiff on behalf of the objector Woolworths. 21 The plaintiff submits that the construction he urges flows from the language of the Act and from the policy considerations, both particular and general, underlying the particular sections and the Act as a whole. 22 The first defendant’s submission is that the second defendant was correct in concluding that the issue posed by s 57(4) was whether the neighbourhood of the existing premises extended so as to include or contain the proposed premises. The first defendant argued that the extent of the neighbourhood of the proposed premises is irrelevant in these circumstances. In support of its arguments, the first defendant also placed reliance on the language of the sections and the policy of the Act as reflected, especially in ss 57(1) and (4).

Resolution of the Submissions

23    The Liquor Act 1982 came into force on 1 July 1983. Under the previous legislation (the Liquor Act 1912 as amended), it was possible for “requirement” objections (and from 1982 onwards, “needs” objections) to be taken to applications for removal of licences where the existing and proposed premises were in the same neighbourhood. It is plain, from a historical perspective, that ss 45(2), 57(1) and 57(4) were, at least in part, designed to put an end to certain aspects of the anomalous litigation which had occurred prior to the new Act. I say “anomalous” because it will be immediately apparent that the removal of a licence to a nearby site in the same neighbourhood does not logically admit of the taking of such an objection since the licence is already part of the neighbourhood structure. 24 This historical perspective does not, of course, resolve the issues involved in the present appeal. It is, however, a matter of background against which an assessment of the proper construction of the relevant sections of the Act may properly commence. 25 It is common ground that it is appropriate to interpret the legislation in a manner which promotes the purpose or object of the relevant legislation. As McHugh JA stated in Kingston v Keprose Pty Limited (1987) 11 NSWLR 404 at 423: -

“A purposive and not a literal approach is the method of statutory construction which now prevails … In most cases the grammatical meaning of a provision will give effect to the purpose of the legislation. A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act.”

26    His Honour continued at 423G-424: -

“If the objects and purposes of the statute and the means of their achievements are not declared, they can only be determined by examining the statute as a whole. The ordinary meanings of the individual words together with any statutory definitions will invariably indicate what those objects, purposes and meanings are. The cumulative weight of their core meanings will indicate the general purpose or purposes of the statute. But when the statute has been read as a whole and its purpose determined, the prima facie meaning of the provision must, if necessary, give way to the construction which gives effect to the statutory object or purpose …. Words may give colour to each other, modifying their primary meaning, and causing the whole provision to have its own unique meaning. Likewise the general objects and purposes of the statute will give colour to the individual words, phrases and provisions sometimes modifying their ordinary meanings. … Once the object or purpose of the legislation is delineated, the duty of the Court is to give effect to it in so far as, by addition or omission or clarification, the relevant provision is capable of achieving that purpose or object.”

27    This decision was cited with approval in Bropho v Western Australia (1990) 171 CLR 1; see also s 33 Interpretation Act 1987. 28 It is clear that s 57(4) does not, in literal terms, yield the meaning ascribed to it by either the plaintiff or the first defendant. Admittedly, the paragraph is not as well expressed as it might have been. The particular ambiguity arises from the insertion of the adjective “same” where it appears before the word “neighbourhood”. It may mean s 45(2) is not to apply to a removal of a licence to premises within the neighbourhood of the premises from which it is proposed to remove the licence; or it may mean that s 45(2) is not to apply to a removal of a licence to premises which have the same neighbourhood as the neighbourhood of the premises from which it is proposed to remove the licence. There may, indeed, be other possible meanings. The parties however, contended that one of these two meanings should be preferred. 29 I have come to the conclusion that the construction urged by the first defendant should be preferred. I shall briefly state my reasons. 30 First, I shall deal with the textual argument. The plaintiff’s argument does not sufficiently focus on the whole of the phrase “premises within the same neighbourhood as” where it appears in s 57(4). In particular, the words “within” and “as”, in conjunction with the phrase “the same neighbourhood”, import, in my opinion, a meaning which tends to support the construction that the ground of objection is not to be available where the proposed premises are found to fall within the “territorial” area of the neighbourhood of the existing premises. As to the “territorial” aspect of the neighbourhood concept in the Liquor Act 1982, see Armstrong v Edgecock above at 542; Morgan v Goodall (1985) 2 NSWLR 655 at 657. 31 The word “same”, like many English words, has a slightly different meaning depending on its context and the manner in which it is used. For example, in matters of statutory construction where a word is said to have the same meaning as another word, it normally means it is “identical” with the meaning of the other word. Where, however, to take a different example, Mr Brown is said to live in Smith Street, and it is then suggested that Mr Jones lives in the same street as Mr Brown, it does not mean that Mr Jones lives in a street which is “identical” to Smith Street. The use of the word “same” in that context normally means “that street” or “that very street”. 32    The focus, in relation to the phrase under discussion, is on the position or location of the proposed premises. Are they “within” the same neighbourhood as the first set of premises? This focus draws me to the conclusion that the word “same”, where it appears in s 57(4), is used as an emphasis to make more explicit that the location issue is to be tested against “that” neighbourhood, namely the territorial extent of the neighbourhood of the premises from which it is proposed to remove the licence. 33 Secondly, I am fortified in this grammatical construction of s 57(4) by reference to the scheme of the Act which is established by a consideration of s 57(1), s 57(4) and s 45(2). I shall explain why in the context of the submissions made on the plaintiff’s behalf. 34 Mr Austin QC who appeared with Mr Hatzis on behalf of the plaintiff, argued that the combined language of s 45(2) and s 57(4) results in a construction which necessarily requires that the neighbourhood of the proposed premises (s 45(2)) must be the “same” (s 57(4)) as the neighbourhood of the existing premises (s 57(4)). I must confess that I do not read the combined operation of the sections in this way. It seems clear to me that s 45(2) is not available where s 57 operates. The relevant circumstances are those set out in s 57(4). The question is to identify the nature and extent of those circumstances. 35 The plaintiff’s argument then points to a policy consideration. The starting point is the proposition that where a licence is sought to be removed to other premises where each set of premises possesses an identical neighbourhood, there is no different “public in the neighbourhood” whose needs are required to be considered. That is, there is in that situation, no new class or group of persons within the neighbourhood of the proposed licensed premises. In terms of policy, it is submitted that the intent of s 57(1) is to ensure that those whose interests the licence was intended to serve (that is, the public in the neighbourhood of the existing licensed premises) are not to be detrimentally affected by its removal. Section 57(1) contemplates that the interests of that public would not be detrimentally affected if the licence were removed to another location within the neighbourhood of the existing premises, because it is the “same” public in the neighbourhood. 36 It is argued that these policy considerations provide a strong foundation for the plaintiff’s argument. 37 I am unable to agree. First, it does not at all follow that the removal of the licence within the same neighbourhood is incapable of detrimentally affecting the public in that neighbourhood or, at least, a substantial section of that public. The removal of a licence, for example, from a railway station to a nearby department store may result in a significant inconvenience to a large section of the public in the neighbourhood. Similarly, the removal of a licence from a department store to a building in an unfrequented and remote part of the neighbourhood is equally capable of detrimentally affecting perhaps a substantial majority of those members of the public in the neighbourhood. 38 It seems to me that the legislature has deliberately turned its back on such considerations and has opted for a more practical test in determining whether the statutory prohibition contained in s 57(1) should operate. If the licence is to be moved to a place “outside” the neighbourhood of the premises from which it is proposed to remove the licence, the statutory prohibition will apply unless the Licensing Court is satisfied that the removal of the licence to the new site will not affect detrimentally the interest of the public in the neighbourhood of the first premises. This is a “territorial” test which avoids the complexity which arose in the past when different groups in the community in the one neighbourhood felt they were potentially disadvantaged by a proposed removal. The points of view of these interest groups may still be considered by the Licensing Court in the manner explained by the High Court in O’Sullivan v Farrer & Anor (1989) 168 CLR 210. The statutory prohibition, however, will not arise once the territorial examination has been concluded and it has been found that the proposed removal is “within” the neighbourhood of the first premises. 39 Similar policy considerations apply to the possibility of the “needs” ground being applicable to a removal to premises a short distance away in the same neighbourhood. In such a situation, generally, it could not be argued that the two sets of premises did not possess identical neighbourhoods. However, a removal from a small unattractive shop to the heart of a major shopping centre a short distance away would mean that the licence would be available to many thousands of people who would have been unlikely to use it in its former location. Thus, there would be a substantially different “public in the neighbourhood” who would have recourse to the licence. Yet, the plaintiff’s argument concedes that because the “territorial” neighbourhoods are identical, the “needs” ground would not be applicable. 40 To reduce the argument to absurdity, it is not insignificant to note that the subject removal was to a broom closet where the licence was to be held dormant. In such a situation, it would not be able to meet the needs of any members of the public at all. 41 Again, it seems to me that the legislature has, consistently with the position taken in s 57(1), opted for much simpler approach. It has determined that the issue whether the needs ground should be available should depend on whether the licence is being moved “within” the neighbourhood of the original premises or “outside” that neighbourhood. If the former situation is found to exist, the literal terms of s 45(2) and s 57(4) will prevent the needs objection from being taken. 42 In my opinion, a simple “territorial” test has been adopted to prevent the complications and difficulties of litigation encountered under the old legislation. Moreover the scheme established under ss 57(1) and (4) is uniform. The plaintiff’s submission would suggest that an entirely different approach was taken under each of the sub-sections. There is no logic in this. 43 The statutory scheme is this: where it is sought to remove a licence from A to B, the question will be to determine whether B is within the neighbourhood of A. If B is “outside” the neighbourhood of A, the application of the statutory prohibition in s 57(1) will need to be considered as it may affect the neighbourhood of A; and the needs ground (s 45(2)) will be available as an objection in the B neighbourhood. If, on the other hand, B is “within” the neighbourhood of A, the statutory prohibition will have no application and the needs ground will not be available. 44 There is, in my opinion, further support for the correctness of the position urged by the first defendant in O’Sullivan (supra). Admittedly, this was a case in which the Court accepted, without examining the proposition, that both sites involved in the removal application had the same neighbourhood for the purposes of the Act. Moreover, the decision of the High Court was dealing with an issue confined to the Licensing Court’s power to refuse an application where an objection had not been taken. Nevertheless, the Court’s discussion did examine, in some detail, the scope of ss 57(1) and (4) in circumstances where the removal was to premises within the same neighbourhood. The following passage appears in the joint judgment of the majority at p 217: -

“Section 57(1), to which reference has already been made, imposes a specific limitation on the discretion to grant or refuse an application for removal of an hotelier’s licence or an off-licence (retail) to a place outside the neighbourhood of the premises from which it is proposed to remove the licence. …
Section 57(4) operates to exclude an objection under s 45(2) of the Act in the case of an application for removal of an hotelier’s licence or an off-licence (retail) to premises within the same neighbourhood. It may, we think, be said with complete accuracy that the effect of s 57(4) is to render a consideration whether “the needs of the public in the neighbourhood of the premises to which the application relates” (which words in their context refer to the premises to which it is proposed to remove a licence) “can be met by facilities for the supply of liquor” (s 45(2)) wholly irrelevant to the determination of an application for the removal of an hotelier’s licence or an off-licence (retail) to premises within the same neighbourhood.” [my underlining]

45 Once it is accepted that the effect of s 57(4) is to render a consideration whether “the needs of the public in the neighbourhood of premises to which the application relates can be met by facilities for the supply of liquor” wholly irrelevant to the determination of an application for removal of a licence to premises within the same neighbourhood, it would be both anomalous and inconsistent to insist that the Licensing Court should concern itself with the territorial extent of the neighbourhood of the proposed premises. Such a consideration would of course be highly relevant were the needs ground available. As the removal is in the same neighbourhood, the consideration is not relevant at all. 46    The final argument advanced on behalf of the plaintiff draws attention to a suggested policy which underlies the Act as a whole. It was argued that an important policy and purpose of the liquor legislation is to prevent the undue proliferation of liquor outlets. The mechanism adopted in the Liquor Act to prevent such undue proliferation, so the argument runs, is the “needs” ground of objection set out in s 45(2). 47 In particular, reliance was placed upon the remarks of Else-Mitchell J in Ex parte Watman (1963) NSWR 580 at 583 where his Honour spoke of the policy in the then prevailing licensing legislation of preventing undue proliferation. These remarks were in the context of an application for a certificate of registration for a club. 48 I am not at all convinced that the current Liquor Act is concerned to the same extent with policy considerations of this kind, as was the previous legislation when considered nearly forty years ago. There have been remarkable changes in attitudes to the availability and consumption of alcohol in the intervening years. Large regional shopping centres containing one or more off-licences are by no means uncommon in the year 2000. 49    More significantly, I do not think that the “needs” ground of objection in the current legislation has the significance attributed to it by the plaintiff’s argument. An argument that the “needs” ground of objection “was a most important and fundamental” ground of objection in the then legislation was rejected by the Court of Appeal in Lorence & Ors v Abraham (1982) 2 NSWLR 551 at 555. Secondly, the Liquor Act 1982 contains an express discretion to allow an application to be granted where an applicant has failed to discharge the onus placed on him by s 45(2): See s 47(1). 50 I do not consider that the policy consideration related to the undue proliferation of liquor outlets has the significance attributed to it by the plaintiff for the purposes of the arguments in this appeal. In any event, such a consideration does not displace the language and policy underlying ss 57(1) and 57(4).

Conclusion

51 For the stated reasons, I am of the opinion that the opening words of s 45(2) exclude the possibility of an objection being taken under that section where the circumstances outlined in s 57(4) are found to exist. Section 57(4) requires the Licensing Court to determine whether the proposed premises are located within the neighbourhood of the premises from which it is proposed to remove the licence. If the premises are so located, the objection may not be taken. 52 The second defendant was correct in relation to the conclusion it reached regarding the interpretation of s 45(2) and s 57(4) of the Liquor Act 1982. The orders I make are as follows: -

1. Summons dismissed.

2. The plaintiff to is pay the first defendant’s costs.

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Last Modified: 12/19/2000