Taverns SA P/L & Ors v L E SAT Nominees P/L & Anor No. Scgrg-00-601

[2001] SASC 1

TAVERNS OF SA PTY LTD & OTHERS v
L E SAT NOMINEES PTY LTD & A J SAT NOMINEES PTY LTD
[2000] SASC 1

Full Court:  Prior, Olsson and Williams JJ

1      On 19 June 2000 the Licensing Court granted the respondents an hotel licence for a site in Parafield Gardens, in what the Licensing Court judge identified as the general area of Salisbury.  Eight objectors pursued an appeal to this Court complaining that in granting the licence the Licensing Court judge erred.  In the grounds of appeal it is said that the judge failed to make any express findings as to locality and that he erred in failing to conclude that the applicants had not satisfied the licensing authority that the grant of a licence was necessary in order to provide for the needs of the public in the locality in which the proposed premises were to be situated.

2 Section 58(1) of the Liquor Licensing Act 1997 provides:

“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.”

3 The appellants maintained that in granting the licence the court failed to have any or sufficient regard to decisions of this Court with respect to the question as to what constitutes the needs of the public for the purposes of s 58(1)[1].  They also said that, on the material before the court, the court should have concluded that the services and facilities provided by existing licensed premises in the locality were meeting the reasonable needs of the public in the locality.  The Court dismissed the appeal.  We now give our reasons for doing that.

[1]               Angler’s Hotel/Motel v Taranto (1980) Pty Ltd (1996) 188 LSJS 321; Japling Pty Ltd & Ors v Shenannigans Pty Ltd & Anor (1998) 199 LSJS 469

4      The respondents had applied for a licence with respect to premises not far from the premises the subject of the granted licence.  In February 1997, that application was refused, along with three others.  The general area or locality was then also identified as Salisbury.  An appeal against that refusal was dismissed[2].

[2]               Kings Family Tavern v Lindsey Cove Pty Ltd & Ors (FCSA, 23 December 1997, Jdgmt S6509, unreported)

5      The Licensing Court judge referred to the previous applications and his refusals of them.  He then considered whether things had altered since 1997 with “a significant section of the subject citizenry who do have needs that are now not being adequately met”.  His Honour said that when he heard the earlier applications poker machines were still a bit of a novelty, with opposition to them “in its infancy or at least youth”.  His Honour’s view was that there was then “little if any hint of the present day objection on the part of many to traditional hotel facilities having a ‘pokies atmosphere’”, in contrast to what his Honour said he had heard “time and time again in the last couple of years”.  His Honour spoke of the need of “a number of people”, “to go to a hotel for a quiet drink or a quiet meal”.  His Honour then spoke of a desire on the part of many people to dine out, “not so much in a café atmosphere where speed of service seems the norm” but rather “to spend a leisurely time over (a) meal in quiet, safe surroundings”.  His Honour said that he saw these two desires as “strongly relevant to the questions raised by s 58”. Counsel emphasised that the current application included a gaming lounge.  The applicants’ evidence was that without poker machines, the British pub concept proposed would struggle to survive on its own.

6      The judge then referred to the particular proposals of the applicants.  The proposals were said to offer a different atmosphere from traditional hotels, meeting a need for “a better quality of hotel” with an atmosphere permitting a quiet chat and drink in some sort of private space and meals and drinks “over an extended period of time”.  The Licensing Court judge referred to and accepted the evidence from a number of witnesses who complained of “the lack of a good hotel in their area to meet their expressed needs”.  His Honour spoke of witnesses wanting “a better premises nearer their living area for obvious reasons”.

7 Evidence from a planner identified an area in the immediate vicinity of the proposed premises where the only licensed premises was a community club which did not object to this proposal. It had objected to the earlier application. Obviously, the needs of the public closest to the immediate vicinity of the proposed premises were very relevant. However, the judge considered the premises of all objectors as premises within the locality for the purposes of s 58(1).

8      The judge referred to another aspect of expressed need put to him on this occasion.  That was “a desire to try and consume different beers and ales outside the common commercial Australian beer available in the locality”.  As to this, the judge spoke of no huge demand being established but something to be weighed in the scales. 

9      His Honour also said that he accepted the evidence that in the locality there was no restaurant of any consequence, so that if the expressed needs were to be satisfied in the locality it came only from hotels and clubs.  His Honour referred to the evidence of persons “happy with current outlets overall”.  His Honour then spoke of the “relevant licensed premises”.  He identified nine in particular and referred to other clubs in the locality.  His Honour saw the clubs as playing “little if any part in the lives of most of the subject need and contra need people”.

10 On all of the material before him, the judge concluded that there was a significant public who reasonably found an inadequacy in the licensed premises in the locality. His Honour identified the locality as “wider” than that identified in the planning evidence. His Honour included all objectors in the locality that he considered. The complaint that his Honour failed to make an express finding as to the locality for the purposes of s 58(1) is not made out. Facilities in the general locality of the proposed licensed premises were considered. A definitive boundary is not required before an applicant can discharge the onus imposed by s 58(1)[3].

[3]      Nepeor Pty Ltd v Liquor Licensing Commission & Others (1987) 46 SASR 205 at 206 and 207

11 As for the next ground of appeal, there was material upon which the judge could find, as s 58(1) required him to do before granting the licence, that the grant of the licence was necessary in order to provide for the needs of the public in the locality he identified. His Honour was entitled to find in favour of the applicants against his identification of “two significant groups within the community”; one very satisfied with the existing licensed premises, the others not.

12 This Court has said often enough that when considering the statutory demands of s 58(1) there is a broader focus than with other parts of that section which enables “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”[4]. In our view, his Honour did not fail to have proper regard to previous decisions of this Court. The emphasis he gave to atmosphere and matters of style was not shown to be excessive or inappropriate. A demand for a different atmosphere than exists in existing licensed premises is not irrelevant to the issues arising under s 58(1)[5].

[4]               South Eastern Hotel Pty Ltd & Ors v Woollies Liquor Stores Pty Ltd (1998) 71 SASR 402 at 404

[5]               See South Eastern Hotel (supra) at 404 and contrast Japling (1998) 199 LSJS at 477, 479

13     There are obvious factual differences between this case and others where the grant of a licence was said to be erroneous and properly interfered with in this Court.  Particular reliance was placed upon the decisions of this Court in Anglers Hotel/Motel & Others v Taranto (1980) Pty Ltd and Japling Pty Ltd & Others v Shenannigans (1) Pty Ltd & Another[6].  One of us sat in each of those cases.  We see no proper basis upon which any propositions referred to or advanced in those cases call for intervention in this.  Rather, in this case, we were being asked to arrive at a different conclusion on nothing more than the facts and material properly received and considered by the court below. 

[6] (1996) 188 LSJS 321; (1998) 199 LSJS 469

14     There is no identifiable error of principle in what the judge did in this case.  He did give proper consideration to the question whether existing licensed premises sufficiently catered for the needs of the public.  A failure to do that was the error identified in Japling[7].  The evidence in Anglers Hotel was said to be insufficient to establish the need for an hotel licence.  In this case, there was evidence sufficient to do that. 

[7] (1998) 199 LSJS at 477

15     Japling did not dispute that matters of taste and preference do have a bearing on the question of need.  The evidence in that case was that two hotels in the locality provided the same kind of atmosphere as was said to be a significant justification for the grant of the licence in that case.  On that ground, the applicants failed to prove need.  The evidence in this case was otherwise[8]. 

[8]      Japling (1998) 199 LSJS at 480

16     In Taranto[9] this Court found that there was no demonstrated need for a sixth hotel in Wallaroo.  The Court found that the Licensing Court judge erred as a matter of law in wrongly directing himself as to what must be proved to establish the need for an hotel licence[10].  The decision was the subject of comment and explanation in Cibolini Pty Ltd v Sullivans Hotels Pty Ltd & Others[11].  Bleby J indicated that if the only need demonstrated in a relevant locality were facilities of a particular type, it did not follow that an hotel licence should not be granted[12].

[9] (1996) 188 LSJS 321 at 325

[10] (1996) 188 LSJS 321 at 325

[11] [1999] SASC 326

[12] [1999] SASC 326 [29]

17     The fact that an earlier similar application failed does not prevent this application succeeding.  An onus was not discharged before on the evidence then before the court.  This application, some three years later, was different.  There were changes in circumstances and different evidence as to the demands on the part of the public in the locality of the applicants’ premises[13]. 

[13]     See King CJ in Lovell v New World Supermarket Pty Ltd & Anor (1990) 53 SASR 53 at 56

18     As a specialist tribunal, a judge of the Licensing Court is “entitled to use his own knowledge and judgment to confirm, as it were, the needs and demand evidence” led before him[14].  The judge seems to have done that, particularly with respect to some evidence which, it was argued before us, was not evidence capable of supporting the evidence identified as need evidence. We were not persuaded that that evidence was not capable of supporting the application.

[14]     Lovell (1999) 53 SASR at 58

19     Decisions of specialist tribunals are not lightly interfered with by this Court. The judge was entitled to arrive at the conclusion that he did on the material that was before him.  He properly considered the question whether existing licensed premises sufficiently cater for the needs of the public.  He was entitled to conclude that they did not for the reasons he gave.  No warrant for interference on this occasion was made out.  The appeal was therefore dismissed with costs.