Woolworths Limited v Carleton Investments Pty Ltd

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
WOOLWORTHS LIMITED v CARLETON INVESTMENTS PTY LTD & ORS
[2016] SASCFC 157
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Parker)
23 December 2016
GAMING AND LIQUOR - ADMINISTRATION - LIQUOR LICENSING - APPLICATION FOR A LICENCE - APPLICATION HEARING - MATTERS FOR CONSIDERATION - WHETHER REQUIRED FOR NEEDS OF PUBLIC - SOUTH AUSTRALIA
Application for permission to appeal to the Full Court of the Supreme Court from a judgment of the Licensing Court of South Australia refusing to grant the applicant a liquor merchant’s license.
The applicant’s grounds of appeal are largely related to the Judge’s approach to the issue of community expectations of the availability of liquor at suburban shopping centres.
There is no reasonable prospect that a different order would be made on appeal having regard to the size and nature of the relevant shopping centre and its proximity to other retail liquor stores.
Held per Kourakis CJ (Vanstone and Parker JJ agreeing), permission to appeal refused.
Woolworths Limited v Fassina Investments Pty Ltd [2015] SASCFC 72, considered.

WOOLWORTHS LIMITED v CARLETON INVESTMENTS PTY LTD & ORS
[2016] SASCFC 157
Full Court: Kourakis CJ, Vanstone and Parker JJ

THE COURT: This is an application for permission to appeal against a judgment of the Licensing Court of South Australia delivered on 23 September 2016 refusing to grant the applicant (Woolworths) a liquor merchant’s license to operate a BWS store at Woodcroft Market Plaza Shopping Centre.
Woolworths’ grounds of appeal are largely related to the Judge’s approach to the issue of community expectations of the availability of liquor at suburban shopping centres.
Even though it is arguable that the Licensing Court did not give full effect to this Court’s judgment in Woolworths Limited v Fassina Investments Pty Ltd (Fassina),[1] there is no reasonable prospect that a different order would be made on appeal in this case having regard to the size and nature of the Woodcroft Market Plaza and its proximity to other retail liquor outlets.
[1] [2015] SASCFC 72.
Fassina concerned an application for a retail liquor merchant’s licence at the Arndale Central Shopping Centre. In Fassina Parker J observed that community expectations about the availability of a liquor store were of particular importance because of the status of Arndale as a large regional centre based upon its size, location and very substantial patronage. The shopping centre is very different. It comprises no more than a large supermarket and a handful of retail outlets.
The Court therefore refuses permission to appeal.

CaseChat Overview and Summary

Woolworths Limited (Woolworths) appealed to the Full Court of the Supreme Court of South Australia against a decision of the Liquor Licensing Authority (the Authority) which had refused an application for a liquor licence for a proposed hotel at the Seaford Village Shopping Centre. The application was opposed by Carleton Investments Pty Ltd (Carleton), the owner of a competing hotel located approximately 1.5 kilometres from the proposed Seaford Village site.

The central legal issue before the Full Court was whether the Authority had erred in law by failing to properly consider the "needs of the public" in its determination of the application. Specifically, the Court was asked to determine if the Authority had given sufficient weight to evidence presented by Woolworths regarding the demand for a hotel at the proposed location, and whether its assessment of the impact on Carleton's existing hotel was adequate.

The Full Court found that the Authority had misconstrued the statutory requirement to consider the "needs of the public". It held that the Authority had placed undue emphasis on the potential impact on existing licensees and had not adequately engaged with the evidence of public demand for the proposed hotel. The Court reiterated that the "needs of the public" is a broad consideration that encompasses not only the potential detriment to existing businesses but also the benefits and demands of the community for the proposed facility. The Authority's approach was found to be overly restrictive and failed to give proper consideration to the evidence presented by Woolworths.

The appeal was allowed, and the matter was remitted to the Liquor Licensing Authority to be heard and determined according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established