Woolies Liquor Stores Pty Ltd v Fidler's Liquor Stores & Ors No. Scciv-01-1730

[2002] SASC 50

WOOLIES LIQUOR STORES PTY LTD
v  FIDLER’S LIQUOR STORE AND ORS
[2002] SASC 50

Miscellaneous Appeals (ex tempore)

1. DOYLE CJ:            I consider that the Judge was entitled, as a matter of law, to refuse the application, even though the only basis for doing so was the exercise of the discretion under s53. It is not arguable that the discretion does not permit the order actually made.

2. The potentially arguable issue is the attack on the basis of the exercise of the discretion, that is, the potentially arguable issue is whether in the particular circumstances the decision was wrong.

3. The case is not one of a kind likely to recur, so it is of no general importance.

4. The Judge identified a number of matters as relevant to the exercise of the discretion. In the broad they are the basis upon which the licence was permitted to remain as a general facility licence after the end of the transitional period; the basis upon which the Judge previously ordered its removal; the fact that the proposed use of the licence, a licence of a special type, was far removed from the basis on which it had been granted, and permitted to remain a general facility licence; a concern that the grant of the application would lead to the licence operating as if it were a retail liquor merchant’s licence; a concern that the grant of the licence would disturb in an undesirable way the balance between the various types of liquor outlet in the locality, and a concern that the grant of the application would undermine the policy behind the requirement to satisfy s58(2) if what was in issue was actually a retail liquor merchant’s licence.

5. I consider that each matter was relevant to the exercise of the discretion. If leave is granted, it will simply lead to an argument as to the proper use of these and other factors, and to an argument over the actual exercise of the discretion.

6. I recognise, however, that it is an unusual case and not without difficulty.  But on what I have heard there is no particular reason to think the Judge erred. On balance, I consider that leave to appeal should be refused.

7. There is no particular profit in having the Full Court review the exercise of the discretion by this specialist court in these special circumstances, in summary. There is no point of principle. The case is not likely to set a significant precedent, and it appears to involve no more than a reconsideration of the exercise of the discretion on matters very much within the experience of the Licensing Court.

8. Accordingly, I refuse leave to appeal.