The Grand Hotel v John Upham Holdings No. Scgrg-00-248

THE GRAND HOTEL (SA) PTY LTD v JOHN UPHAM HOLDINGS PTY LTD
[2000] SASC 149

Full Court: Doyle CJ, Duggan and Lander JJ

DOYLE CJ. In my opinion the appeal should be dismissed. I agree with the reasons given by Duggan J. There is nothing that I wish to add to those reasons.
DUGGAN J. The respondent succeeded in an application made to the Licensing Court to obtain a certificate of approval for a hotel licence in respect of premises to be constructed on the northern side of Moseley Square, Glenelg. This appeal is brought against the decision of the learned Licensing Court judge to grant the certificate. The grounds of appeal challenge the learned judge’s finding that the granting of a licence was necessary in order to provide for the needs of the public in the relevant locality. It is claimed that the judge erred in a number of respects in going about the task required of him by s 58(1) of the Liquor Licensing Act 1977 (the Act).
The proposed premises would consist of a narrow two storey building. The hotel would have “an Irish pub theme” deriving most of its income from liquor sales. There is provision for food sales but this would amount to only about 15 per cent of the business conducted on the premises. There would be no designated dining room, but instead cubicles and tables would be provided to enable customers to eat on the premises if they so desired. The plan incorporates bars on both levels. Entertainment in the form of live music would be provided, but there would be no poker machines. The decor would rely heavily on the Irish theme and Irish drinks such as Guinness stout would be available. It is anticipated that the clientele would be older than those patrons who attend hotels popular amongst young people.
The sole issue in the case relates to the assessment by the Licensing Court judge as to whether the respondent discharged the onus cast upon it by s 58(1) of the Act which provides as follows:
“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.”
The nature of the task of assessing need under this provision and its precursors has been the subject of many decisions in this court. In more recent times the relevant principles have been summarised conveniently by the Chief Justice in Woolies Liquor Stores v Carleton Investments Pty Ltd & Ors (1998) 73 SASR 6. In the course of explaining the test to be applied in an application for a retail liquor merchant’s licence under s 58(2) of the Act the Chief Justice commented on the test relevant to an application for a hotel licence under s 58(1). The Chief Justice said (at 10):
“The language used by Parliament suggests that, as before, the focus of s 58(2) is upon the demand for liquor and the availability of liquor, whereas the focus of s 58(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. The language used in relation to a retail liquor merchant’s licence focuses attention more closely on the demand for and availability of liquor. Matters of the type just adverted to by me are not wholly irrelevant in that context. However, they are to be given less weight because the court is concerned with the demand for liquor and its availability, and not with the wider concept of the needs of the public.”

Later he said:

“However, in deciding whether the existing premises adequately cater for the public demand, the court has to apply some standard. None is indicated by the legislation. I consider that Parliament must have had in mind that the court would consider contemporary standards, using the knowledge and experience that the Licensing Court gains through its work as a specialist court dealing with the liquor industry.”

The learned Licensing Court judge began his assessment by defining the relevant locality for the purposes of s 58(1). He stated that, in his opinion, the locality was generally within Anzac Highway, Brighton Road, The Broadway and the sea. There has not been any challenge to this finding. The central shopping and entertainment area for the district is within the locality and the area is well recognised as a tourist destination.
There are approximately 38 restaurants in the locality and some of these have been granted a special circumstances licence pursuant to s 40 of the Act which enables alcohol to be served without a meal. The hotels in the locality are the Stamford Grand Hotel, the Glenelg Jetty Hotel (formerly St Vincent’s Hotel), the Holdfast Hotel and the Broadway Hotel. The Watermark Hotel (formerly St Leonard’s Inn) and the Bay Motel Hotel fall just outside the locality.
The learned judge had regard to all the licensed premises in the locality. He also considered the relevance of some premises outside the locality. These included the Watermark Hotel which is situated on Anzac Highway. He also took into account the fact that a certificate for a hotel licence was granted recently for premises to be called the Holdfast Shores Hotel located in the new Holdfast Shores development on the beach front north of Moseley Square. However, I think his Honour was correct in attaching special significance to the Grand Hotel and the Glenelg Jetty Hotel because of their proximity to the proposed premises.
Before continuing with the summary of the learned judge’s findings, it is necessary to say something about the method whereby he expressed some of the findings, a method he described as unusual. When he came to identify some of the major findings on the question of need his Honour quoted from several pages of the closing address of counsel for the appellant. He then expressed his agreement with those submissions. With respect to his Honour, this approach was less than satisfactory in the circumstances of the present case. It is common, of course, for judges and magistrates to adopt certain aspects of counsel’s submissions, but it is another thing to set out pages of counsel’s address on the central issue in the case and simply express agreement with it. The issues addressed in this manner were highly contentious and counsel, as he was entitled to do, resorted to rhetoric throughout much of the quoted address. Despite the fact that the judge said he agreed with everything which was said in these passages it is not altogether clear that every comment and argument, with the emphasis given to them by counsel, were adopted. Findings of this importance should be expressed by the judge in his own language and with his own emphasis so that the appeal court is left in no doubt as to the fact finder’s precise view of the matter.
Although, as I have said, it might be appropriate in some cases to incorporate submissions of counsel into the reasons for decision, this was not a satisfactory method in the present case. (cf Commissioner for Railways v Peters (1991) 102 ALR 579 at 588.) If clear fact finding is absent, appellate courts will often be required to spend a considerable amount of time in isolating issues and determining the facts.
It was accepted at the hearing before the learned judge that the relevant locality is a unique tourist area. Mr Donaldson, the Director of Planning and Development for the Holdfast Bay City Council which is an amalgamation of the former Glenelg and Brighton Councils, stated in evidence that it was estimated approximately 3 million visitors, including international and interstate tourists, visit Glenelg each year. The learned Licensing Court judge accepted that Glenelg was Adelaide’s major suburban tourist attraction and he acted correctly in having regard to this consideration in considering the “public” whose needs are to be served. In Lincoln Bottle Shop Pty Ltd v Hamden Hotel Pty Ltd and Ors (1978) 19 SASR 326 at 340 Jacobs J said:
“It seems to me that the word ‘public’ must contemplate all members of the public, whether resident or otherwise, from whom the demand for the supply of liquor in that locality might be expected to emanate. No doubt, in many cases, the floating population may, of itself, not contribute very much to the public demand, but that will not necessarily be so: it may, for example, have a very significant impact in popular holiday or tourist resorts.”
Previously there were three hotels in the vicinity of the proposed premises, but now there are only two. The Grand Hotel was described in the evidence as a five star hotel. It employs approximately 350 staff and caters for a wide range of activities. It has a large ballroom and a gaming room. The hotel caters for conventions and large functions. There are various restaurants in the hotel and, of particular importance to the present case, three bars. The Pier and Pines is a large bar which caters mainly for the younger set. A number of the witnesses called by the respondent complained of long queues of people wishing to patronise this bar in the evening. The bar was said to be very noisy. Another bar, Horizons, was described by a senior executive of the hotel as a “very up-market cocktail bar”. It opens each evening at 5.00 pm. The other bar, Top Deck, is a wine bar which opens on Thursdays, Fridays and Saturdays. It has a maximum capacity of 30 people. It does not provide beer or stout on tap.
The respondent accepted that the Grand Hotel was an excellent five star facility. However, the evidence established that the style of the hotel was not favoured by a number of people. The learned judge accepted the claim that many people wanted a quieter venue which was not as crowded and which did not possess some of the restrictions present in the cocktail bar and the other smaller bar.
The Glenelg Jetty Hotel was described in evidence as “tired”. It is in need of renovation and the witnesses said it is an old style “Australian pub” with a basic bar, betting facilities and poker machines. The learned judge had regard to the proposed Holdfast Shores Hotel although it has not yet been constructed. He pointed out that it was outside the Moseley Square precinct and that it was largely directed towards interstate and overseas tourism, although it would cater for a local element as well. The hotel will be a large five star facility and it will be approximately 300 metres from the site of the respondent’s premises.
The learned judge referred to the Watermark Hotel in his reasons for decision. At the time of the hearing before the Licensing Court this hotel was undergoing extensive renovation and refurbishment. It is a large hotel with extensive facilities, but the judge pointed out that it was some distance away from Moseley Square where the tourists and other visitors to Glenelg tend to congregate. He also said that it was not the type of establishment favoured by the witnesses who gave evidence for the respondent.
Mr Walsh QC, for the appellant, pointed out that the locality was served by a large number of restaurants. He said that some premises had special circumstances licences which enabled them to serve alcohol without providing a meal. Again, however, the Licensing Court judge noted that this type of facility does not satisfy the needs of many people who do not wish to have a casual drink in an area intended mainly for dining.
The grounds of appeal allege that the learned Licensing Court judge did not apply the reasoning of those cases which have interpreted s 58 of the Act. I do not agree with this assertion. His Honour set out the wording of s 58(1) and noted the requirement to define the locality appropriate to the application before him. As I have pointed out, no criticism is made of the locality which he defined.
He then turned to the licensed premises within the locality as well as some premises falling outside it in order to assess the facilities provided by those premises. He discussed the facilities provided by the hotels and restaurants and paid particular attention to the two hotels closest to the proposed premises. The submissions of counsel which his Honour quoted provided a detailed analysis of the needs of members of the public in the relevant locality and the extent to which they were not provided for by the existing licensed premises. His Honour said he agreed with all of the submissions which he set out.
Up to this point there was no error in his Honour’s approach to the assessment required by s 58(1) of the Act.
Next it was argued that his Honour focussed too narrowly on the evidence of witnesses who said they wanted to drink in a quiet place with an Irish theme. It must be acknowledged that there was a good deal of evidence in the case which concentrated on the so-called “Irish theme” reflected in the layout of the proposed premises, the style of food, the availability of Guinness products and folk style entertainment. It is important to bear in mind the artificiality of attempting to show a need simply by reference to premises with a different atmosphere. In Japling Pty Ltd & Ors v Shenannigans One Pty Ltd & Anor (1998) LSJS 469 at 479 Debelle J said:
“A case proving a need based on providing premises with a different atmosphere from others in the locality is very ephemeral. The need for a hotel is not demonstrated in that way. If that were so, the need for another hotel would be demonstrated whenever fashions or tastes might change. Thus, a shift in tastes or preferences from an Irish pub to some other kind of decor and operation would provide a need for a licence. Plainly that is not what s 58(1) contemplates. Plainly, some weight should be attached to the fact that preferences and tastes will change. But matters of preference and taste cannot be pressed too far for there is nothing to prevent an applicant for an hotel licence from altering the decor and get-up of an hotel and its manner of operation in order to attract custom. Two hotels mentioned in the evidence in this case provide concrete examples. The Norwood Hotel is an old and well-established hotel. Its licensee is Saterno’s Norwood Hotel Pty Ltd. It has recently changed its get-up and manner of operation to emulate an Irish pub and is called ‘Finn McCool’s’. Reference has already been made to the Elephant & Wheelbarrow, where the proprietors changed their proposed premises from an Irish pub to an English pub. Thus, while matters of taste and preference may have a bearing, the weight to be attached to them must often be slight. To adopt a façon de parler of Gertrude Stein, a hotel is a hotel is a hotel is a hotel. What must be established is the need for the range of facilities provided by hotels as explained in Anglers Hotel/Motel v Taranto (1980) Pty Ltd (1996) 188 LSJS 321 at 325.”
In my view, however, the learned judge did not place too much reliance on this aspect. Irrespective of the Irish theme the proposed hotel offers a style of drinking in surroundings and with facilities which are absent in the existing licensed premises located in the near vicinity. I think his Honour was right to pay particular regard to the two hotels in close proximity to the proposed premises. The evidence reflects the understandable attitude of a section of the public who have no desire to drink in a large five star establishment or an old hotel with few modern facilities or in a restaurant or other establishment with a special facilities licence. I think it was also open to the trial judge to accept, as he did, that there would be occasions when the Grand Hotel could not conveniently cater for the needs of those who wished to patronise that hotel because of the crowds and resulting queues to get into the main bar. The Horizons bar and the Top Deck bar with their particular style and their restrictions, including trading hours, would not necessarily fill this void.
I am of the opinion that there was sufficient evidence to justify the finding that the licence in this case is necessary in order to provide for the needs of the public in the locality identified by the trial judge. I have referred to the uniqueness of the area with its large number of visitors. The locality encompasses a densely populated residential and commercial area. The number of restaurants is indicative of the demand for dining and entertainment. There are only two hotels in the busiest precinct within the locality. In one sense they are at opposite ends of the spectrum in that one is a five star hotel and the other an old style hotel with few modern facilities. The restaurants, including those with a special facilities licence, do not seem to satisfy the needs of all those who wish to consume alcohol without a meal. There would seem to be a significant gap in meeting the needs of members of the public who have a preference for a style of premises outside this restricted choice. In my view the strength of the respondent’s application lies not in the fact that the hotel would be conducted in accordance with a particular theme, but rather that, when assessed realistically against the background of what is known about contemporary habits and tastes, the proposal addresses the void to which I have referred. The decision of the learned Licensing Court judge seems to have been based on these considerations together with the important consideration that the premises of the objector are regularly crowded.
Despite the method used by the learned judge to record some of the important findings in the case, it is nevertheless clear that he identified the relevant issues and made findings sufficient to justify the grant of the certificate. No error has been demonstrated in his Honour’s approach to the assessment under s 58(1) which would justify interference by this court.
I would dismiss the appeal.
LANDER J. I agree with Duggan J’s reasons. The appeal should be dismissed.

[2000] SASC 149

14 June 2000