Woolies Liquor Stores v South Eastern Hotel & Ors No. Scgrg-98-1595 Judgment No. S289

[1999] SASC 289

WOOLIES LIQUOR STORES PTY LTD
v  SOUTH EASTERN HOTEL PTY LTD & ORS
[1999] SASC 289

Full Court:  Doyle CJ, Duggan and Debelle JJ

1. DOYLE CJ.       This is an appeal against a decision of the Licensing Court refusing an application for the grant of a retail liquor merchant’s licence.  It is the second appeal in relation to the same application.  In my opinion the appeal should be dismissed.

The application and the first appeal

1. The appellant applied for the grant of a retail liquor merchant’s licence in respect of premises at Mt Gambier, a city in the south-eastern part of South Australia.  The application was opposed by the licensees of seven hotels in Mt Gambier, and by the holder of a retail liquor merchant’s licence in Mt Gambier.  The Licensing Court granted the application.  Four of the objectors appealed to this Court.  The Court allowed the appeal: South Eastern Hotel Pty Ltd v Woolies Liquor Stores Pty Ltd (1998) 71 SASR 402. The Court remitted the application to the Licensing Court “for further consideration, and for findings to be made and a decision to be reached upon the evidence already before the Court”: at 411.

2. The Licensing Court heard further submissions from the parties.  The judge decided that he should refuse the application.  The applicant has now appealed against that decision.

3. The facts relevant to the application are set out in the Court’s previous decision.  No further evidence was led when the matter was remitted to the Licensing Court.  I do not propose to repeat all of those facts.

4. A very brief summary of the facts will suffice.  The applicant sought a licence for premises in an existing Woolworths supermarket at Mt Gambier.  The supermarket is part of a shopping centre that includes four or five speciality shops.  The judge found that there are two existing licensed premises that provide adequate facilities, assessed by contemporary standards, for the sale of liquor for consumption off the premises.  One of them, premises licensed by a retail liquor merchant’s licence known as Fidler & Webb, is only about 500 metres from the applicant’s premises.  The other one, the Mt Gambier Hotel, is about 200 metres beyond Fidler & Webb.  The applicant’s premises, and each of the premises just mentioned, either front onto or are very close to the main shopping street of Mt Gambier.

5. The applicant’s case really rested upon a demand expressed by witnesses as a wish for “one-stop shopping”.  That is, a wish to purchase their liquor requirements when purchasing food and other items at the Woolworths complex.  However, outlets at that complex would not meet all of the regular shopping needs of residents of Mt Gambier, and of necessity they would visit other outlets from time to time.  As to that, I said in my earlier reasons (at 409):

   “Unfortunately, as I have mentioned, the judge does not refer at all to the question of the extent to which the relevant witnesses would, in any event, find it necessary to patronise other retail outlets in Mt Gambier, the frequency with which they would do so, and the opportunities that that would present to make purchases of liquor at other licensed premises.”

6. The other foundation upon which the applicant’s case rested was a complaint about difficulty in getting a car park at or near Fidler & Webb or the Mt Gambier Hotel.  The judge found that the people who complained of difficulty in this respect were not being unreasonable.  As to that, I said in my earlier reasons (at 410):

   “The mere wish to purchase liquor at the applicant’s premises, while shopping there for other items, does not establish that the existing premises do not adequately cater for the public demand for liquor.  The degree of difficulty in getting liquor at the objectors’ premises has to be assessed, and that difficulty has to be assessed by reference to contemporary standards.  In my opinion, having regard to contemporary standards, it could not be said that the effort involved in travelling to the objectors’ premises, even if a special trip were to be made, is such that those premises could not be said to cater adequately for the public demand for liquor expressed by people shopping at the applicant’s premises.

   In my opinion the judge’s decision to grant the licence could be right only if, in his opinion, the difficulty in obtaining a car park reasonably close to the objectors’ premises gives rise to such inconvenience in obtaining liquor there that, applying contemporary standards, the demands of those who shop at the applicant’s premises and wish to purchase liquor there, is not adequately catered for.  This is something that has to be weighed and assessed by the Licensing Court.  It is not a matter of simply acceding to complaints and dissatisfaction voiced by witnesses, however genuinely the complaints and dissatisfaction may be expressed.”

I went on to say (at 410-411):

“The applicant’s licence could be granted only if the judge were satisfied that the difficulty and inconvenience involved in obtaining liquor at the objectors’ premises, taking account of shopping patterns and the habits of people concerned, were sufficiently great to say that those premises do not adequately cater for the public demand for liquor.”

I was there pointing out that it was necessary for the judge to make clear findings about, and to weigh up, matters beyond the desire for one-stop shopping and the difficulty in finding a car park at or near Fidler & Webb and the Mt Gambier Hotel.

The second hearing

1. That is the context in which the matter was remitted to the Licensing Court.

2. The judge concluded that the difficulty in parking at Fidler & Webb and at the Mt Gambier Hotel was nothing more than inconvenience.  Having regard to contemporary standards it was not, of itself, sufficient to warrant the grant of a licence.

3. The judge took the view that the decision in the earlier appeal required him to consider only the difficulty in obtaining car parking, and no other matter.  Accordingly, he refused the application.  However, at the end of his reasons he said:

   “However if I am wrong in that assumption I would still say that having in mind a combination of the desire to ‘one stop shop’, the ‘busyness’ of their lives, the inconveniences suffered in taking children into a bottle shop and the inconvenient parking facilities, that, marginally, the applicant would succeed.”

The second appeal

1. The judge has taken a narrow view of his task at the second hearing.  The last passage from my reasons set out above makes it clear that reaching a decision involves “taking account of shopping patterns and the habits of people concerned.”  The Court’s criticism of the judge’s first decision was that he had made no findings on these and other matters.

2. Although the judge has taken a narrow view of his task, I consider that his decision should stand.

3. The desire to purchase liquor at a place where other shopping is done is, of itself, of very little significance. Granting a licence on that basis would result in a licence at each well patronised shopping centre. That approach does not accord with s58(2) of the Liquor Licensing Act 1997. On the judge’s findings there are two other outlets, not far from the applicant’s premises, that provide acceptable facilities. People experience some difficulty in obtaining a car park at those premises, but it amounts to no more than the sort of inconvenience that we all encounter from time to time. There is still no finding by the judge that the occasions when the applicant’s witnesses satisfy shopping needs, not met at the Woolworths complex, do not present reasonable opportunities to buy liquor from other outlets. As well, it has to be borne in mind that driving from the Woolworths complex to Fidler & Webb or to the Mt Gambier Hotel would take only a few minutes. The matters mentioned by the judge in the concluding part of his reasons are not sufficient, in this context, to justify the grant of the licence. I have already dealt with one-stop shopping. The busyness of witnesses and the inconvenience of taking children into a bottle shop is no more than another aspect of the same point. These matters merely explain why the witnesses would prefer to buy their liquor at the Woolworths complex. They do not establish that the difficulty in obtaining liquor at other licensed premises in Mt Gambier, taking account of shopping patterns, is more than is acceptable having regard to contemporary standards.

4. For those reasons I would dismiss the appeal.

5. DUGGAN J.               In my view the appeal should be dismissed for the reasons given by the Chief Justice.

6. DEBELLE J.               I agree that the appeal should be dismissed for the reasons given by the Chief Justice.