Woolworths Ltd v Director of Liquor Licensing - [2013] WASCA 227

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WOOLWORTHS LTD -v- DIRECTOR OF LIQUOR LICENSING [2013] WASCA 227

CORAM: MARTIN CJ
BUSS JA
MURPHY JA

HEARD: 20 JUNE 2013

DELIVERED : 1 OCTOBER 2013

FILE NO/S: CACV 127 of 2012

BETWEEN: WOOLWORTHS LTD
Appellant
AND
DIRECTOR OF LIQUOR LICENSING
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :EM HEENAN J
Citation  :WOOLWORTHS LIMITED -v- DIRECTOR OF LIQUOR LICENSING [2012] WASC 384
File No  :GDA 15 of 2011

Catchwords:

Liquor licensing - Application for a liquor store licence - Application refused by the Liquor Commission - Constructive failure to exercise jurisdiction - Failure by the Commission to apply itself to the relevant issues to be decided - Wrong decision by the Commission that there was no evidence capable in law of establishing the existence of consumer requirements - Consideration by the Commission of the wrong question

Legislation:

Liquor and Gaming Legislation Amendment Act 2006 (WA)
Liquor Control Act 1988 (WA), s 5, s 9I, s 16, s 28, s 30A, s 33, s 38, s 39, s 40, s 47, s 62, s 69, s 72, s 73, s 74
Supreme Court Act 1935 (WA), s 58(1)(b)

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant: Mr C L Zelestis QC & Mr M N Solomon
Respondent: No appearance

Solicitors:

Appellant: Cullen Babington Macleod
Respondent: No appearance

Case(s) referred to in judgment(s):

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342
Griggs v Noris Group of Companies [2006] SASC 23; (2006) 94 SASR 126
Hancock v Executive Director of Public Health [2008] WASC 224
Jericho Nominees Pty Ltd v Dileum Pty Ltd (1992) 6 WAR 380
K‑Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Liquorland (Australia) Pty Ltd v Austie Nominees Pty Ltd (1999) 20 WAR 405
Liquorland (Australia) Pty Ltd v Hawkins (1997) 16 WAR 325
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 87 ALJR 618
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Oshlack v Rous Water [2013] NSWCA 169; (2013) 194 LGERA 39
O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210
Palace Securities Pty Ltd v Director of Liquor Licensing (1992) 7 WAR 241
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
R v Anderson; Ex parte Ipec‑Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177
R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 77 ALJR 1909
Re Minister for Immigration and Multicultural Affairs; Ex parte Yusuf [2001] HCA 30; (2001) 206 CLR 323
Soliman v University of Technology, Sydney [2012] FCAFC 146; (2012) 207 FCR 277
Sue v Hill [1999] HCA 30; (1999) 199 CLR 462
Water Conservation & Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492
Woolworths Ltd v Director of Liquor Licensing [2012] WASC 384
Woolworths Ltd v Drase Coosit Pty Ltd [2010] SASC 13; (2010) 106 SASR 146

MARTIN CJ: This appeal should be allowed for the reasons given by Buss JA with which I agree. I will, however, add a few observations of my own.
In its reasons for decision, the Commission correctly observed:
[I]n considering whether the grant of an application is in the public interest, the Commission needs to consider both the positive and negative aspects of the application and how the application will promote the objects of the Act [48].
In relation to the positive aspects of the application, in the course of its reasons the Commission noted that the applicant's case was based on a number of propositions including:
(1)Dan Murphy's is an established reputable liquor store brand which successfully operates in other parts of Australia; [8]
(2)the proposed liquor store will provide a matrix of services and will be one of the largest facilities in the State, providing:
·large stylish facilities designed to provide a pleasant and unique shopping experience;
·the best range of liquor (over 4000 product lines) including local, Australian and international products;
·the best possible prices;
·a dedicated fine wine area;
·knowledgeable well-trained staff;
·a commitment to providing the best range of premium wines of any Australian retailer; and
·superior customer service facilities such as twice-weekly wine tastings, special events, gift cards, event planner services and trolleys for customers; [8]
(3)the premises will provide the facility of a modern liquor store co-located with a major supermarket conveniently located off a major arterial road; [10]
(4)the premises will provide convenience to the 1.8 million visitors to the shopping centre per annum; [10]
(5)an existing run-down building will be redeveloped which will add to the amenity and safety of the area and no changes to the existing traffic or parking arrangements are required; [10]
(6)as a branded Dan Murphy's store, the premises will appeal to older, more affluent and discerning customers; [10]
(7)the demographics of the locality correspond to Dan Murphy's established market. [14]
There was ample evidence to support each of these propositions - see, for example, the evidence of Mr Andrew Pollard in relation to the significant increase in average weekly customers in various Western Australian liquor store outlets after they were changed to Dan Murphy's stores, and the report of MGA Town Planners which dealt with the various advantages which would be derived by the public if the application was granted.
Nowhere in its reasons did the Commission reject or make adverse findings in respect of any of these propositions.
The Commission then went on to consider the possible negative aspects of the application. In its reasons the Commission considered four possible negative aspects of the application - harm minimisation or possible ill health caused to the community; the potential impact which the grant of the licence might have upon the capacity of existing licensed premises to continue to offer services to members of the public in the locality; the possible impact on the amenity of the locality; and the possibility of undue offence, annoyance or disturbance to people who reside or work in the vicinity of the proposed premises. The Commission expressly rejected each of these possible negative aspects of the application (reasons [42], [45], [46] and [47]). No other negative aspects of the application are discernible from the reasons given by the Commission.
So, on the face of the Commission's reasons, no negative aspects of the application are apparent, whereas many positive aspects of the application are identified without adverse finding or comment. The question posed by this appeal is how, in those circumstances, consistently with the proper construction of the Act and its objects, the Commission could have concluded that it was not in the public interest to grant the application. The answer to that question is that the Commission could only have arrived at that conclusion by misconceiving its function or misconstruing the Act, either of which are jurisdictional errors of law which vitiate the Commission's decision.
The Commission purported to justify its conclusion by referring to what it considered to be a paucity of evidence of consumer demand needed to justify the grant of the application. There are a number of errors of law apparent in this approach. First, the critical emphasis which the Commission placed upon the evidence relating to consumer demand sustains the conclusion that the Commission was, in substance and effect, applying a form of the 'needs' test which was repealed in 2006 (Liquor and Gaming Legislation Amendment Act 2006 (WA)). Second, there was clear evidence of consumer demand for the facilities proposed by the applicant before the Commission, and to which I have referred. There was no evidence to the contrary. The Commission made no adverse finding in respect of the evidence proffered by the applicant on the subject, but nevertheless appears to have considered itself unable to arrive at a positive finding of fact on that topic for reasons which are not apparent. Third, on the various facts which the Commission appears to have found supported the application and given that the Commission expressly found that the application had no negative aspects, in accordance with the scheme of the Act and its functions, the only conclusion open to the Commission was that the grant of the application was in the public interest.
Neither on the appeal at first instance, nor on the appeal to this court did the appellant assert that the Commission's decision should be set aside on the ground that it was unreasonable, in the sense in which that term was used in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. In Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 294 ALR 225, the High Court drew attention to the relationship between a ground of judicial review based on 'Wednesbury unreasonableness' and various other grounds of jurisdictional error - see [23 et seq] (French CJ); [63 et seq] (Hayne, Kiefel and Bell JJ); [88 et seq] (Gageler J). The plurality (Hayne, Kiefel and Bell JJ) found that unreasonableness is a conclusion that may be applied to a decision which lacks an evident and intelligible justification [76]. Put shortly, unreasonableness in this sense is one of the means by which an inference may be drawn to the effect that an administrative decision maker has exceeded the jurisdiction conferred upon him or her by, for example, misconceiving the function which he or she has been required to perform, or by misconstruing the statute conferring the relevant power. Because the appellant did not put its case on the basis of unreasonableness, it would not be appropriate to express a view on the

applicability of that ground. For the short reasons I have given, and the more elaborate reasons given by Buss JA, it should be concluded that the Commission misconceived its function and misconstrued the Act which conferred its powers. Its decision should be set aside.

BUSS JA: On 30 August 2011, the Liquor Commission of Western Australia (the Commission) refused the appellant's application for a conditional grant of a liquor store licence, pursuant to s 47 and s 62 of the Liquor Control Act 1988 (WA) (the Act), in respect of premises, proposed to be known as 'Dan Murphy's Bicton', at 378 Canning Highway, Bicton.
The Commission, in making the decision, was constituted by three members.
The appellant appealed to a single judge of the Supreme Court, pursuant to s 28 of the Act, against the Commission's decision. The appeal was heard by EM Heenan J. On 15 October 2012, his Honour dismissed the appeal. See Woolworths Ltd v Director of Liquor Licensing [2012] WASC 384.
The appellant appeals to this court against the primary judge's decision.

Overview of the appellant's evidence before the Commission

The appellant sought to establish a Dan Murphy's liquor store in premises adjacent to the Melville Plaza Shopping Centre in Bicton. The proposed liquor store was to be located in an existing vacant building on the western side of the shopping centre. After refurbishment, the building was to provide about 1,843 sqm of floor space, comprising 1,296 sqm for the display and sale of liquor products and 547 sqm for storage and office facilities and other amenities.
Dan Murphy's is an established, reputable liquor store brand which operates successfully in other parts of Australia, but is relatively new in the Western Australian market.
The appellant tendered evidence as to the nature of the Dan Murphy's business model, the range of liquor products and related services which the appellant intended to provide at the proposed liquor store, features of the site of the proposed store, the range of liquor products and related services provided by existing liquor stores in the locality and the manner in which the proposed store would be supervised.

The evidence relied on by the appellant was to the following effect:
(a)The Melville Plaza Shopping Centre is the commercial hub of the Melville area, providing retail shopping facilities which comprise a Coles supermarket as the anchor tenant and 23 retail shops/financial institutions.
(b)The shopping centre attracts about 1.7 million visitors per annum.
(c)Almost 26,000 people live in the area of the shopping centre and that population consists predominantly of Australian-born, relatively mature adults with higher than average income and higher than average spending patterns.
(d)The shopping centre has the status of a 'District Centre' under the hierarchy of commercial centres established by Planning Policy Statement number 4.2 of the Western Australian Planning Commission and is designated as 'District Centre' under the City of Melville Town Planning Scheme (No 5) Map.
(e)As a District Centre under the Planning Policy Statement, the shopping centre is expected to meet the weekly shopping needs of suburban communities on a one-stop shopping basis.
(f)The shopping centre does not contain a packaged liquor outlet.
(g)The proposed store would be located in an existing stand alone vacant building on the western side of the shopping centre and, following refurbishment, would provide about 1,843 sqm of floor space.
(h)There is easy and convenient access to the car park of the proposed store from Canning Highway and 504 car bays could be available, many of which are adjacent to and 'at the door' of the proposed store.
(i)The car park has a gentle gradient, and is readily accessible by pedestrians and convenient for those pushing a trolley (in contrast to an established liquor store site in the Bicton locality, the First Choice liquor store, which has a steep gradient and is split level).
(j)Evening peak traffic flows are heaviest in an easterly direction along Canning Highway, making the northern alignment of the proposed store the most favourable location for a packaged liquor outlet.
(k)The proposed store would be operated as a Dan Murphy's store, providing a matrix of services featuring:
(i)large, stylish facilities specifically designed and configured to provide a pleasant and unique shopping experience with state of the art retailing facilities;
(ii)the best range of liquor (over 4,000 product lines) including local, Australian and international products and old, rare and premium wines, providing a much larger range than any other store in the locality with products not available elsewhere;
(iii)the best possible prices;
(iv)a dedicated fine wine area;
(v)knowledgeable well-trained staff;
(vi)a commitment to providing the best range of premium wines of any Australian retailer;
(vii)superior and unique customer service facilities, such as twice weekly wine tastings, special events, gift cards, event planner services, a fine wine manager, a fine wine guide, a cellar release programme and trolleys for customers; and
(viii)a capacity to display a wide range of products providing shelf space and exposure to many small producers.
(l)The Dan Murphy's brand is reputable and established. It operates successfully in the Perth metropolitan area and other parts of Australia, and has a record of responsible liquor service and well-trained staff.
(m)There is no existing packaged liquor outlet south of the Perth central business district, including the Bicton locality, that provides a combination of products and customer services similar to those that the proposed store would provide.
(n)While there are 9 commercial liquor outlets in the locality, all except the First Choice liquor store are small to medium sized convenience stores, generally carrying between 700 ‑ 1,200 product lines, with poor representation of international, fine and premium wines.
(o)The First Choice liquor store is a larger store with less convenient accessibility and a product range of about 2,000 ‑ 2,500 lines. It is principally a liquor barn attached to a hotel, and sells mostly mainline products at competitive prices. Although it provides a selection of international, fine and premium wines compared to other existing packaged liquor outlets, it offers a much smaller range of these wines than the proposed Dan Murphy's liquor store would provide.
(p)The appellant would implement and rigorously enforce at the premises comprehensive management and supervision practices and policies designed to minimise and manage the risk of alcohol-related harm to the local community.
(q)The success of the Dan Murphy's business model in other localities, including suburban localities, demonstrates customer requirements for the range of products and services which the business provides.
(r)The proposed store would provide a modern retail outlet in contrast with existing outdated retail outlets in the Bicton locality.
The appellant also tendered evidence as to the reasons for the success of the Dan Murphy's business model, including the main class of customers and the extent of demand in other suburban areas for the range of products and services to be provided at the proposed liquor store, and demographics of the Bicton locality.
The evidence relied on by the appellant was to the following effect:
(a)Dan Murphy's stores are destination stores; that is, people usually travel to them for a single purpose shopping trip, often for the purchase of large quantities at a discount.
(b)Each Dan Murphy's store carries between 3,500 and 4,000 product lines, the majority (about 65%) being wine, and the proposed liquor store would offer for sale more than 4,000 product lines, of which about 3,000 would be wine products.
(c)The proposed store would offer skilled fine wine services from trained staff members.
(d)The product line and range of services of the proposed store are far in excess of those available elsewhere in the locality.
(e)The proposed store will operate from high‑quality premises, providing amenities commensurate with the extensive product range and high‑level services.
(f)In contrast, almost all of the existing liquor stores in the locality are out‑dated and reflect a lack of investment in, and development of, liquor retailing in the locality.
(g)There are no other Dan Murphy's stores south of the Canning river.
(h)The typical Dan Murphy's customer was likely to be a mature‑age male with an above average income who is a discerning wine consumer, rather than young adults.
(i)Other Dan Murphy's stores in Western Australia, especially other suburban stores, have attracted very substantial custom, which reflects the extent of suburban consumer requirements for the relevant range of products and services. This is consistent with the success of the business in attracting very substantial custom in other parts of Australia.
(j)The Dan Murphy's business benefits from investment of more than $60 million in a substantial collection of fine wine (over three million bottles) which is stored in a dedicated climate‑controlled warehouse.
(k)A high proportion of the population in the Bicton locality is aged over 40, being within the Dan Murphy's prime market, and the population of the locality is affluent, with a high degree of home ownership.

The Commission's decision

On 22 June 2011, the Commission heard the appellant's application. The parties who appeared at the hearing included the Director of Liquor Licensing (the Director), who intervened in the proceedings under s 69(11) of the Act. The Director did not, however, oppose the grant of the licence. The Director intervened for the purpose of drawing the Commission's attention to factors relevant to the proper consideration of the application. On 30 August 2011, the Commission refused the application and published written reasons for its decision.
In its reasons, the Commission recorded aspects of the submissions and evidence of the parties, including the appellant, who had appeared at the hearing. The reasons then contained some analysis of s 38(2) of the Act. Finally, the Commission explained why it had decided to refuse the application.
The Commission rejected submissions on health‑related grounds made by some of the objectors. It found that there were no adverse planning, amenity or nuisance considerations and that the existing liquor stores in the Bicton locality would not be blighted. It concluded, however, that the appellant had not satisfied the public interest criterion in s 38(2) of the Act.
In summary, the Commission's reasons for refusing the application were these:
(a)there was no 'general principle' to the effect that the popularity of a business model in other localities justified the grant of a new licence in another locality [49], [54];
(b)there was no evidence that the proposed liquor store would be a more convenient source of supply of packaged liquor to visitors to the shopping centre or users of the nearby arterial road (that is, Canning Highway), than was provided by existing liquor outlets [55], [57], [58]; and
(c)the only 'other' evidence of consumer demand was evidence from six members of a wine club and 11 letters of support, and this was of little weight [56].
The Commission's detailed reasons for concluding that the appellant had not satisfied the public interest criterion were as follows:
49The [appellant] submitted that the grant of the application will provide a number of benefits to the local community, including increased competition; the introduction of a large, modern liquor store with superior customer service and product range; the convenience to the 1.8 million visitors to the shopping centre per annum; the redevelopment of the run down building and a branded Dan Murphy's store which will appeal to older more affluent and discerning customers. To demonstrate that the grant of the application will cater to the requirements of consumers for liquor and related services, the [appellant] essentially relies upon the support from the Wine Club; the 11 letters of support from local residents which were lodged with the City of Melville when it was considering the Planning application for the proposed store; and the general assertion that because Dan Murphy's stores have proven to be popular in other localities it will therefore be popular in this locality.
50At the hearing before the Commission, counsel for the [appellant] was questioned by the Commission about the level of evidence submitted to demonstrate that the grant of the application will cater for the requirements of consumers and how in other applications a market survey, for example, was conducted to reflect consumer demand. In response, counsel for the [appellant] stated (at pg 42 of the transcript):
'In terms of the market survey, our position was that we believe the application on its own merits [was] so strong that it would speak for itself, especially when you compare it to the other stores in the area and especially given you look at the overall position of Dan Murphy's in the Perth market where there is this demand. What you have to take into account, there is no counter‑evidence to suggest that those 10 people and the Wine Club is not sufficient, in our view, to support the application. We have local [sic] and we have residents living in and outside the area saying "We can't access products, we don't like" [sic] ‑ and you'll see in the Wine Club, it's quite detailed, "We simply don't like it.'''
51In considering the issue of what may constitute adequate evidence of the requirements of the public, Malcolm CJ in Hay Properties Pty Ltd & Anor -v- Roshel Pty Ltd, unreported, FCt SCt of WA; Library No 980496; 20 July 1998 said:
'In my opinion it is plain that the question whether the six witnesses and 11 persons who wrote letters of support, all of whom spoke of the need for a liquor store, constituted a sufficient sample or section of the public to be representative is a question of fact and degree rather than a question of law. The total population in the affected area was 3,200. In the context, particularly having regard to the absence of any contrary evidence from members of the public, I am of the opinion that it was open to the learned Judge to conclude as he did …
What is a significant section of the public and what number of persons may be said to be representative is necessarily a question of fact and degree depending on the population of the affected area and a range of other circumstances. In my opinion it is not a question of law …
While survey evidence may be extremely helpful in providing evidence of the subjective requirements of a significant section of the public, it is not possible to say that such evidence is essential. Where a limited number of persons give evidence the question is whether the Court is able by seeing and hearing the witness to conclude that the views expressed are representative of a significant section of the public so as to enable the relevant findings to be made … '
52The Commission is quick to note that the Hay Properties case was determined under the previous provisions of the Act which related to the 'needs test' and that this test no longer applies. There is nonetheless a corollary of the principles in that case to the issue of what evidence is necessary to demonstrate that the grant of a licence will cater to the requirements of consumers, and consequently promote one of the primary objects of the Act.
53The Commission is of the view that the evidence submitted in this case does not satisfy the Commission that the grant of the application for a new liquor store licence at this location will cater for the requirements of consumers for liquor and related services for the following reasons.
54First, the Commission rejects the general principle that merely because a business model has proven to be popular in other localities, that that justifies the grant of a new licence in this locality or any other locality. Such a contention is untenable and ignores the regulatory scheme and objects of the Act; the need to consider the merits of each case; and [the] need to properly weigh and balance the public interest considerations in the context of each individual application.
55Secondly, no evidence was presented that persons visiting the shopping centre might find it more convenient to purchase packaged liquor from the [appellant's] proposed store and no evidence was submitted that persons travelling along the main arterial road would find it more convenient or have any requirement to use the proposed liquor store. For example, in LC 13/2011 in which Woolworths Ltd sought the grant [of] a liquor store licence at the Warnbro Fair Shopping Complex, it commissioned a market survey in which 409 customers of the Shopping Complex were interviewed. This evidence was given considerable weight by the Commission to demonstrate that persons attending the Shopping Complex had a requirement for one‑stop‑shopping and ultimately that application was approved.
56Thirdly, the only other evidence of consumer demand was evidence from the Wine Club and some letters of support lodged with the local government authority. Whilst the Wine Club and the letters of support may be evidence of consumer demand as contemplated in object [sic] 5(1)(c) it is necessary for the Commission to consider what weight should be attributed to this evidence. The requirement for liquor and related services by the Wine Club members is quite unique and does not reflect or represent the broader requirements of the general community. Similarly, the letters of support submitted to the local government authority were quite general in nature, although it is noted that one or two persons did refer to the convenience of using the shopping centre and the proposed liquor store. The Commission finds that the limited nature of this evidence significantly diminishes the weight that should be accorded to it.
57The material facts in Hay Properties are substantially different to the facts in this case. This is not an application for a typical liquor store by industry standards. What is proposed by this [appellant] is to establish very large, warehouse style premises, which would be one of the largest packaged liquor outlets in the State in a locality which has a population of approximately 26,000 people and which is already well serviced by packaged liquor outlets. Although protecting the market share of existing licensees is not relevant and providing competition is a legitimate public interest consideration, the evidence does not satisfactorily establish that the public in the area or elsewhere or those travelling along the main arterial road have any requirement for the services proposed by the [appellant]. The private interests of the [appellant], which may operate a highly profitable business, should not be confused with the public interest.
58The Act places a clear onus on an applicant to adduce sufficient evidence to satisfy the licensing authority that the grant of the application is in the public interest. The level and degree of evidence to be submitted by an applicant will invariably vary depending upon the facts and circumstances of each case. Whether evidence is relevant and probative depends not on the intrinsic qualities of the evidence but on what the evidence is said to prove. Based upon the facts in this application, the Commission is not satisfied that adequate or compelling evidence has been submitted to demonstrate that the grant of this licence will cater for the requirements of consumers for liquor and related services in the manner and under the circumstance[s] contemplated by the [appellant] at the proposed location.
59Notwithstanding that the Commission is satisfied that the grant of the application will not negatively impact on the local community, the Commission finds, however, that the [appellant] has failed to discharge its onus under section 38(2) of the Act and the application is therefore refused.

The right of appeal from the Commission to the Supreme Court

Section 28 of the Act conferred on the appellant a right of appeal to the Supreme Court against the Commission's decision to refuse its application.
Section 28 provides, relevantly:
(1)Subject to this section, a person who ‑
(a)is a party to proceedings before the Commission (including the Director intervening in proceedings before the Commission under section 69(11)); and
(b)is dissatisfied with a decision of the Commission,
may appeal under this section.
(2)No appeal lies against a decision of the Commission constituted by 3 members except to the Supreme Court on a question of law.
…
(4)An appeal under this section against a decision of the Commission constituted by 3 members ‑
(a)shall be heard and determined by a single judge of the Supreme Court; and
(b)must be instituted within the time, and in accordance with the procedure, prescribed by rules of the Supreme Court.
…
(5)On an appeal under this section to the Supreme Court, the Supreme Court may ‑
(a)affirm, vary or quash the decision appealed against; or
(b)make any decision that the Commission could have made instead of the decision appealed against; or
(c)send the decision back to the Commission for reconsideration in accordance with any directions or recommendations that the Court considers appropriate,
and, in any case, may make any ancillary or incidental order the Supreme Court considers appropriate.

The grounds of appeal relied on by the appellant in the appeal to the Supreme Court

The appellant relied on eight grounds in its appeal to the Supreme Court. It is unnecessary to reproduce them.

The question of law relied on by the appellant in the appeal to the Supreme Court

The question of law relied on by the appellant, for the purposes of s 28(2) of the Act, was, in substance, as follows: did the Commission fail constructively to exercise its jurisdiction because it misconceived its duty to decide the application on its merits by making relevant findings of fact (including findings by inference) in relation to the appellant's case, and then deciding whether, in all the circumstances (including the objects of the Act and the facts as found), it was in the public interest to grant the application?

The decision of the primary judge

In the appeal before the primary judge, the appellant and the Director were parties to the appeal. Each of them appeared by counsel. The Director did not contend that the appeal should be dismissed. Counsel for the Director appeared for the purpose of making submissions on the law in the absence of any other party and any contradictor.
The appellant's case in the appeal before the primary judge was that the Commission erred in law by failing properly to hear and determine the application according to law. In particular, it was contended that:
(a)The Commission failed to determine the application by considering and evaluating the evidence and then applying s 38(2) of the Act to the main issues upon which the application turned.
(b)Alternatively to subpar (a), the Commission failed to consider relevant matters which it was bound under the Act to consider, namely the issues, and the evidence relating to the issues, of whether there were consumer requirements in the Bicton locality for the range of liquor products and related services which the appellant intended to provide, that were not otherwise provided in the locality, and whether, in the context of the evidence and the circumstances generally, it was in the public interest to grant the liquor store licence, especially to advance the development of the liquor industry in the locality in a manner which reflected the diversity of consumer requirements.
(c)The Commission wrongly held that there was no evidence capable, in law, of establishing the appellant's case in relation to those issues.
(d)The Commission determined the application by addressing the wrong question; that is, whether there was a 'general principle' that success of a business model elsewhere justified the grant of a licence in a new locality.
The primary judge rejected the appellant's case and dismissed the appeal. His Honour concluded that the Commission did not misconceive its duty to decide the application on its merits. He held that the Commission had engaged with the appellant's case on its merits, had found all the necessary facts and had rejected the appellant's case and submissions on their merits. He also held that if the Commission had made an error (and he was not satisfied that it had), it was merely an error of fact. By s 28(2) of the Act, an appeal lies to the Supreme Court only on a question of law.

The right of appeal from the primary judge to this court

The jurisdiction of this court to hear the appeal against the primary judge's decision is conferred by s 58(1)(b) of the Supreme Court Act 1935 (WA).

The grounds of appeal relied on by the appellant in the appeal to this court

The appellant alleged in essence in the appeal to this court that the primary judge erred in law:
(a)in deciding, adversely to the appellant, that the Commission did not misconceive its duty to decide the application on its merits, as alleged in the question of law relied on by the appellant for the purposes of s 28(2) of the Act; and
(b)in rejecting the appellant's contention that the Commission erred in law by failing properly to hear and determine the application according to law.

The relevant provisions of the Act

The primary objects of the Act, as set out in s 5(1), are to regulate the sale, supply and consumption of liquor (par (a)); to minimise harm or ill‑health caused to people, or any group of people, due to the use of liquor (par (b)); and to cater for the requirements of consumers for liquor and related services, with regard to the proper development of, relevantly, the liquor industry in the State (par (c)).
By s 5(2), in carrying out its functions under the Act, the 'licensing authority' (being, in relation to an application or matter that is, under the Act, to be determined by the Commission ‑ the Commission, and otherwise ‑ the Director) shall have regard to the primary objects of the Act and to certain secondary objects. The secondary objects include facilitating the use and development of licensed facilities, reflecting the diversity of the requirements of consumers in the State (par(a)).
By s 5(3), if, in carrying out any of its functions under the Act, the licensing authority considers that there is any inconsistency between the primary objects and the secondary objects, the primary objects take precedence.
By s 9I(1), a decision of the Commission is to be given in writing.
Section 16(1) provides:
In any proceedings under this Act, the licensing authority, however constituted ‑
(a)shall act without undue formality;
(b)may ‑
(i)obtain information as to any question that arises for decision in such manner as it thinks fit; and
(ii)make its determination on the balance of probabilities;
(c) …
(d) …
Section 16(7) provides:
The Evidence Act 1906 does not apply to the proceedings of the licensing authority, however constituted, and the licensing authority ‑
(a)is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that the licensing authority adopts those rules, practices or procedures or the regulations make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms; and
(c)is to act as speedily and with as little formality and technicality as is practicable. (emphasis added)
By s 30A(1), the licensing authority may grant licences in accordance with the Act.
Subject to the Act, the licensing authority has an absolute discretion to grant or refuse an application under the Act on any ground, or for any reason, that the licensing authority considers in the public interest: s 33(1).
An application:
(a)may be refused, even if the applicant meets all the requirements of the Act; or
(b)may be granted, even if a valid ground of objection is made out,
'but is required to be dealt with on its merits', after such inquiry as the licensing authority thinks fit: s 33(2).
By s 38(2), relevantly, an applicant who makes an application for a liquor store licence must satisfy the licensing authority that granting the application is in the public interest.
Section 38(4) provides that, without limiting s 38(2), the matters the licensing authority may have regard to in determining whether granting an application is in the public interest include:
(a)the harm or ill‑health that might be caused to people, or any group of people, due to the use of liquor (par (a));
(b)the impact on the amenity of the locality in which the licensed premises, or proposed licensed premises are, or are to be, situated (par (b));
(c)whether offence, annoyance, disturbance or inconvenience might be caused to people who reside or work in the vicinity of the licensed premises or proposed licensed premises (par (c)); and
(d)any other prescribed matter (par (d)).

No 'other ... matter' has been prescribed pursuant to s 38(4)(d).

The nature of the Commission's duty to hear and determine the application

By s 16, s 30A, s 33 and s 38, the Commission was required to hear and determine the appellant's application in accordance with the Act.
By s 38(2), the appellant had to 'satisfy' the Commission that the granting of the application was 'in the public interest'.
It is not uncommon for statutes to provide that a decision‑maker shall or may take certain action if 'satisfied' of the existence of specified matters. See Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, 118 (Gibbs J). The expression 'in the public interest', when used in a statute, imports a discretionary value judgment. See O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson & Gaudron JJ). If the statute provides no positive indication of the considerations by reference to which a decision is to be made, a general discretion by reference to the criterion of 'the public interest' will ordinarily be confined only by the scope and purposes of the statute. See O'Sullivan (216).
In the present case, the factual matters which the Commission was bound to take into account, in determining whether it was satisfied that the granting of the appellant's application was 'in the public interest', were those relevant to the objects of the Act, as set out in s 5(2).
The factual matters which the Commission was entitled to take into account, in determining whether it was satisfied that the granting of the appellant's application was 'in the public interest', were those set out in s 38(4).
Section 5(2) is mandatory whereas s 38(4) is permissive.
On the proper construction of the Act (in particular, s 5(1), s 5(2), s 16(1), s 16(7), s 30A(1), s 33 and s 38(2)), the Commission was obliged to take into account the public interest in:
(a)catering for the requirements of consumers for liquor and related services with regard to the proper development of the liquor industry in the State (s 5(1)(c)); and
(b)facilitating the use and development of licensed facilities so as to reflect the diversity of the requirements of consumers in the State (s 5(2)(a)),
to the extent that those matters arose on the evidence (including notorious facts) before the Commission. See O'Sullivan (216); R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322, 329 (Mason J); Jericho Nominees Pty Ltd v Dileum Pty Ltd (1992) 6 WAR 380, 400 (Malcolm CJ, Pidgeon & Nicholson JJ agreeing).
The Commission's obligation to take into account the public interest in the manner I have indicated was not diminished by s 33(1), which provides relevantly that, subject to the Act, the Commission has an absolute discretion to grant or refuse an application under the Act on any ground, or for any reason, that the Commission considers in the public interest. The word 'absolute' does not confer on the Commission an arbitrary or unlimited power. See Water Conservation & Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492, 503 (Dixon J); R v Anderson; Ex parte Ipec‑Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177, 189 (Kitto J); FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342, 368 (Mason J). Section 33(1) is expressly 'subject to' the other provisions of the Act. It does not permit the Commission to grant or refuse an application other than consistently with the objects and other provisions of the Act. See Palace Securities Pty Ltd v Director of Liquor Licensing (1992) 7 WAR 241, 249 ‑ 250 (Malcolm CJ).
Also, the Commission's obligation to take into account the public interest in the manner I have indicated was not diminished by s 33(2), which provides relevantly that an application may be refused even if the applicant meets all the requirements of the Act or may be granted even if a valid ground of objection is made out, but the application is required to be dealt with on its merits, after such inquiry as the Commission thinks fit. Section 33(2) does not empower the Commission to determine for itself the scope and content of the public interest, for the purposes of s 38(2), as if s 5(2) and s 38(4) did not exist. The references in s 33(2) to 'the requirements of this Act' and 'a valid ground of objection' do not include the criterion of 'in the public interest' embodied in s 38(2). Rather, those references are to other requirements of the Act which must be satisfied and other grounds of objection which may be made out. Examples of these other requirements and other grounds of objection include the requirement in s 37(1) that an applicant for a licence be a fit and proper person to be a licensee of the premises in question; the requirements in s 39 and s 40 to obtain certificates from the local government and the local planning authority; the requirement in s 72 to obtain the consent of an owner or lessor; and the general right of objection and the general grounds of objection specified in s 73 and s 74.
On the proper construction of the Act (in particular s 5(1), s 5(2), s 16(1), s 16(7), s 30A(1), s 33 and s 38(2)), the Commission was obliged to determine the appellant's application in accordance with the evidence (including notorious facts) before it and the criteria imposed by the Act. This statutory duty involves two aspects. First, the Commission must evaluate the evidence before it and make findings and draw conclusions from the evidence, including by inference. An inference is an affirmative conclusion which arises from facts that have been established. Of course, the Commission's fact‑finding task extends to the making of findings and the drawing of conclusions, wholly or partly, from notorious facts. Secondly, the Commission must apply the public interest criterion, as I have explained it, to the relevant circumstances, in particular, the findings it has made and the conclusions it has drawn. The Commission was required to undertake the statutory duty by reference to the issues which arose from the application in the context of the relevant provisions of the Act, the evidence (including notorious facts) before the Commission and any submissions made by the appellant, the Director and the objectors.
The Liquor and Gaming Legislation Amendment Act 2006 (WA) made numerous amendments to the Act. The Liquor Licensing Court was abolished and the Commission established. In Hancock v Executive Director of Public Health [2008] WASC 224, Martin CJ inferred from the abolition of the Liquor Licensing Court, and from the structure, constitution and functions of the Commission, that 'it was the intention of the Parliament that those functions be performed by an administrative body, rather than by a judicial body' [51]. See also his Honour's observations at [53].
The Liquor and Gaming Legislation Amendment Act 2006 amended s 38 to remove the 'needs test' that had previously applied and to introduce the public interest test. As to the needs test, see Liquorland (Australia) Pty Ltd v Austie Nominees Pty Ltd (1999) 20 WAR 405.
By s 16(7), the Commission is not bound by the rules of evidence or any practices or procedures applicable to courts of record unless the Commission adopts those rules, practices or procedures or the regulations make them apply; the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms; and the Commission is to act as speedily and with as little formality and technicality as is practicable.
The provision absolving the Commission from compliance with the rules of evidence enables it to make findings of fact on the basis of any probative material before it.
The words 'equity, good conscience and the substantial merits of the case' are not terms of art. They have no fixed legal meaning independent of the statutory context in which they are used. See Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26, 30 (Gleeson CJ & Handley JA); Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 87 ALJR 618 [13] ‑ [14] (French CJ). So, the meaning of these words varies depending on the context in which they are used, including the nature of the decision‑maker and the nature of the decision to be made. See Griggs v Noris Group of Companies [2006] SASC 23; (2006) 94 SASR 126 [32] (White J, Perry J agreeing).
Section 16(7) frees the Commission, at least to some degree, from constraints applicable to courts of record which the Parliament regards as inappropriate. See Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 [49] (Gleeson CJ & McHugh J); Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 77 ALJR 1909 [56] (Gummow & Heydon JJ). It does not, however, exclude the rules of procedural fairness. A duty to act in accordance with the rules of procedural fairness precludes the Commission from deciding matters arbitrarily, irrationally or unreasonably. See Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 356 ‑ 360 (Mason CJ), 365 ‑ 368 (Deane J).
Further, the Commission would not be acting according to good conscience or the substantial merits of the case (within s 16(7)(b)), and it would not be dealing with an application on its merits (within s 33(2)), if it were to determine the issues raised by an application for a licence under the Act otherwise than by applying the provisions of the Act, properly construed, to the findings it has made and the conclusions it has drawn. See Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 [42] (Gleeson CJ, Gummow & Hayne JJ), [149] (Gaudron J); K‑Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 [125] (Gummow, Hayne, Heydon, Crennan & Kiefel JJ).
The Commission must act judicially in proceedings to hear and determine an application for a licence under the Act. There is no suggestion in the Act that the Commission has power authoritatively to determine questions of law. Indeed, by s 28(1) read with s 28(2), a person who is a party to proceedings before the Commission constituted by three members and is dissatisfied with a decision of the Commission may appeal against the decision to the Supreme Court on a question of law. Also, there is no suggestion in the Act that the Commission is empowered to make a determination otherwise than in accordance with the law, except to the extent that it is not bound by the rules of evidence or any practices or procedures applicable to courts of record and it is to act without regard to technicalities and legal forms. The Commission, at least when acting judicially in proceedings to hear and determine an application for a licence under the Act, must apply the provisions of the Act, properly construed, to the findings it has made and the conclusions it has drawn (including by inference) from the evidence and notorious facts.
By s 9I(1), the Commission is required to give its decisions in writing. At least when there is a right of appeal to the Supreme Court from a decision of the Commission, the Commission is obliged to give reasons for the decision. See Hancock [64]. When the Commission is obliged to give reasons for a decision, a failure to deal with an issue of importance may support a conclusion that the issue was not in fact considered. See Re Minister for Immigration and Multicultural Affairs; Ex parte Yusuf [2001] HCA 30; (2001) 206 CLR 323 [69] (McHugh, Gummow & Hayne JJ); Soliman v University of Technology, Sydney [2012] FCAFC 146; (2012) 207 FCR 277 [53] ‑ [57] (Marshall, North & Flick JJ).

Errors of law and a constructive failure to exercise jurisdiction

At least in the absence of a contrary intention in the statute which established it, an administrative tribunal or body will make an error of law in deciding a matter if it identifies a wrong issue or asks itself a wrong question. So acting will result in the tribunal or body exceeding the authority or powers conferred by the relevant statute. That is, if an administrative tribunal or body identifies a wrong issue or asks itself a wrong question in relation to a matter it will not have jurisdiction to make the decision that was made. See Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 179 (Brennan, Deane, Toohey, Gaudron & McHugh JJ); Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [66] ‑ [70] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
A purported, but misconceived and inadequate, attempt by an administrative tribunal or body properly to hear and determine a matter in accordance with the applicable statute may constitute a constructive failure to exercise its jurisdiction. As Gaudron J explained in Yusuf, 'there is said to be a "constructive failure to exercise a jurisdiction" when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form' [41].
In Yusuf, McHugh, Gummow and Hayne JJ referred to the High Court's decision in Craig and then said [82]:
'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive (cf Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82). Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision‑maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision‑maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision‑maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law (Craig (1995) 184 CLR 163 at 179).
See also R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228, 242 ‑ 243 (Rich, Dixon & McTiernan JJ); Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [31] (Gleeson CJ, Gaudron & Hayne JJ); Oshlack v Rous Water [2013] NSWCA 169; (2013) 194 LGERA 39 [163] ‑ [165] (Gleeson JA, Emmett JA relevantly agreeing and Preston CJ at LEC generally agreeing).

Did the Commission fail to apply itself to the relevant issues to be decided on the appellant's application?

The appellant's case before the Commission was, relevantly, that:
(a)there was a correspondence between the age and affluence of the population in the Bicton locality and the main customer group of the Dan Murphy's business, which primarily involved 'destination shopping' for a unique range of liquor and related services, for which there was very substantial demand in suburban areas;
(b)the proposed store would represent a significant improvement in liquor retailing standards in the locality, by offering consumers an unrivalled choice of products and services in a modern, high‑quality store; and
(c)there was no other liquor store south of the Perth central business district, including the Bicton locality, which provided a combination of products and services comparable to those which the proposed store would provide.
On the appellant's case, issues of importance before the Commission included:
(a)whether it could and should be inferred that there were consumer requirements for the proposed range of liquor products and services in the Bicton locality;
(b)whether such a range was available elsewhere in the locality; and
(c)whether, in the circumstances, it was in the public interest to grant the appellant's application, particularly in order to meet the relevant consumer requirements and to advance the development of the liquor industry in the locality in a way which reflected the diversity of those requirements.
As I have mentioned, the Commission was obliged, in dealing with the appellant's application, to apply itself to the real issues to be decided on the application. First, the Commission was bound to evaluate the evidence before it and make findings and draw conclusions from the evidence, including by inference. Also, the Commission's fact‑finding task extended to the making of findings and the drawing of conclusions, wholly or partly, from notorious facts. Secondly, the Commission was bound to apply the public interest criterion, as I have explained it, to the relevant circumstances, in particular, the findings it had made and the conclusions it had drawn.
The primary judge held that the Commission had assumed or accepted all of the facts established by the evidence set out at [17](a) ‑ (p) above. See his Honour's reasons at [12], [23], [45] ‑ [49]. Although the Commission in its reasons merely recorded aspects of the submissions and evidence of the parties, including the appellant, who had appeared at the hearing, the better view, on a fair reading of the Commission's reasons as a whole, is that his Honour's conclusion on this point was correct. However, it does not follow from the Commission's assumption or acceptance of all of the facts established by the evidence set out at [17](a) ‑ (p) above, that the Commission properly determined the appellant's application, according to the evidence and s 38(2), in the manner I have stipulated at [70] above.
The primary judge also held that the Commission did not assume or accept evidence to the effect that the success of the Dan Murphy's business model in other localities, including suburban areas, demonstrated customer requirements for the range of products and services which the appellant provides [48]. According to his Honour, the Commission was to be taken to have considered the evidence and to have expressly declined to find that the success of the Dan Murphy's business model in other localities demonstrated the existence of customer requirements for the proposed range of products and services in the Bicton locality and, in consequence, the Commission had properly attended to that issue [48] ‑ [66].
The critical passage appears in the Commission's reasons at [54]. It is convenient to reproduce it:
[T]he Commission rejects the general principle that merely because a business model has proven to be popular in other localities, that that justifies the grant of a new licence in this locality or any other locality. Such a contention is untenable and ignores the regulatory scheme and objects of the Act; the need to consider the merits of each case; and [the] need to properly weigh and balance the public interest considerations in the context of each individual application [54].
In my opinion, the primary judge erred in his characterisation of the Commission's approach as set out in this passage.
It is apparent from the Commission's reasons at [54] that the Commission considered and rejected a supposed 'general principle that merely because a business model has proven to be popular in other localities, ... that justifies the grant of a new licence in this locality or any other locality'.
However, the Commission did not, either at [54] or elsewhere in its reasons, attempt any evaluation of whether the reasons for the popularity of the Dan Murphy's business model in other localities, considered in the context of the evidence about the demographics of the Bicton locality, could support an inference as to the existence of relevant consumer requirements in the Bicton locality.

If the Commission had embarked upon this evaluation it would have examined the evidence as to the reasons for the success of the Dan Murphy's business model elsewhere and the evidence about the demographics of the Bicton locality. The appellant's case before the Commission sought to connect the reasons for the success of the business model in other localities to the demographics of the Bicton locality. It cannot reasonably be concluded from the Commission's reasons, considered as a whole, that the Commission embarked upon the requisite evaluation. Contrary to the primary judge's reasons [55], there is no basis for assuming that the Commission did so.
The Commission emphasised in its reasons, adversely to the appellant, the absence of survey evidence of consumer demand in the Bicton locality [49] ‑ [58]. It noted, in particular, the absence of evidence that the proposed liquor store would meet the convenience of shoppers [55]. However, the Commission failed to consider evidence which was capable of supporting the appellant's case, including evidence that the proposed business would be a 'destination store'; that is, a place to which people usually travel, from within the Bicton locality and from places beyond it, for a single purpose shopping trip, often for the purchase of large quantities at a discount. Further, the Commission overlooked the notorious fact that, in contemporary Australian life, one‑stop shopping in large suburban shopping centres is of great importance, especially to working people, and that this social fact is reflected in the development of district and regional shopping centres. See Woolworths Ltd v Drase Coosit Pty Ltd [2010] SASC 13; (2010) 106 SASR 146 [55] (Kourakis J). See also Liquorland (Australia) Pty Ltd v Hawkins (1997) 16 WAR 325.
I am satisfied that the Commission misconceived that part of its function which required it to evaluate the evidence before it and make findings and draw conclusions from the evidence, including inferences from facts established by the evidence and from notorious facts. As a result of this misconception, the Commission did not appraise whether it could and should be inferred, as contended by the appellant, that there were consumer requirements for the proposed range of liquor products and services in the Bicton locality. Further, as a result of the Commission's failure to carry out this appraisal, its determination as to whether, in the circumstances, it was in the public interest to grant the appellant's application was flawed. The Commission therefore did not apply itself to the relevant issues to be decided on the appellant's application. There was a constructive failure by the Commission to exercise its jurisdiction.

Did the Commission wrongly decide that there was no evidence capable, in law, of establishing that there were consumer requirements, in the Bicton locality, for the proposed range of liquor products and related services and that it was in the public interest to grant the appellant's application?

In my opinion, on a fair reading of the Commission's reasons as a whole, it is apparent that the Commission decided in effect that there was no evidence capable, in law, of establishing the existence of consumer requirements in the Bicton locality for the range of products and services which the appellant proposed to provide or that it was in the public interest to grant the appellant's application. For the reasons which follow, this decision was erroneous.
First, it is true that the Commission referred to the nature of the proposed business and to the popularity of the Dan Murphy's business model in other localities [41], [49], [54]. However, the Commission did not advert to or consider the evidence as to the reasons for the popularity of the business model elsewhere or the evidence by which those reasons could be related to consumers in the Bicton locality.
Secondly, instead of evaluating the evidence and the notorious facts, by reference to the appellant's case, the Commission dismissed the potential significance of the popularity of the Dan Murphy's business model by rejecting a supposed 'general principle that merely because a business model has proven to be popular in other localities, ... that justifies the grant of a new licence in this locality or any other locality' [54].
Thirdly, by ignoring the evidence as to the reasons for the popularity of the Dan Murphy's business model elsewhere and the evidence by which those reasons could be related to consumers in the Bicton locality, the Commission in effect disregarded the evidence in question on the basis that it could not be of any probative significance.
Fourthly, after noting that 'no evidence was presented that persons visiting the shopping centre might find it more convenient to purchase packaged liquor from the [appellant's] proposed store' [55], the Commission said that 'the only other evidence of consumer demand' was evidence from wine club members and some letters of support [56]. It is not apparent what evidence of consumer demand was before the Commission in respect of which the evidence from the wine club members and the letters of support was 'other' or additional evidence. The Commission did not, anywhere in its reasons, mention or consider any evidence of consumer demand for the proposed range of liquor products and services. Also, the Commission did not, anywhere in its reasons, refer to the notorious fact that, in contemporary Australian life, one‑stop shopping in large suburban shopping centres is of great importance. The only conclusion reasonably open is that the Commission did not regard the evidence as to the popularity of the Dan Murphy's business model elsewhere as evidence which, in combination with evidence as to the demographics of the Bicton locality, could form a foundation in fact for inferring the existence of relevant consumer requirements in the Bicton locality.
Fifthly, the Commission's observation that 'the evidence does not satisfactorily establish' the existence of consumer requirements in the Bicton locality [57], does not indicate that the Commission appraised the evidence in question (emphasis added). The absence of any evaluation of the relevant evidence in the Commission's reasons supports and, in the circumstances, requires an inference that the Commission disregarded the evidence on the basis that it could not be of any probative significance.
I am satisfied that, contrary to the Commission's effective conclusion, the evidence adduced by the appellant before the Commission was capable, in law, of supporting a finding that there were relevant consumer requirements in the Bicton locality for the range of products and services which the appellant proposed to provide and that granting the appellant's application was in the public interest. The appellant's evidence indicated that:
(a)the demographic profile of the Bicton locality included a high proportion of people who were within the main class of customer of the Dan Murphy's business;
(b)the Dan Murphy's business profile was popular elsewhere in suburban Australia;
(c)the proposed liquor store, in accordance with the Dan Murphy's business profile, would provide an unrivalled range of liquor products and services, this range having attracted substantial custom in other suburban areas; and
(d)the proposed store would represent a significant new development in liquor retailing in the Bicton locality and would cater for the diversity of consumer requirements.

Did the Commission, in determining whether the appellant had established the existence of consumer requirements in the Bicton locality, consider the wrong question, namely whether the popularity of the Dan Murphy's business model elsewhere justified the grant of the appellant's application?

Generally for the reasons I have given in the course of considering whether:
(a)the Commission failed to apply itself to the relevant issues to be decided on the appellant's application; and
(b)the Commission wrongly decided that there was no evidence capable, in law, of establishing that there were consumer requirements, in the Bicton locality, for the proposed range of liquor products and related services and that it was in the public interest to grant the appellant's application,
I am satisfied that the Commission considered the wrong question.
The Commission's evaluation of the appellant's case was in effect impermissibly circumscribed by its focus on whether there was a 'general principle' that the popularity of the Dan Murphy's business model elsewhere justified the grant of the appellant's application for a liquor store licence in the Bicton locality.
The correct question was whether, having regard to all of the evidence and any notorious facts, including evidence as to the reasons for the popularity of the Dan Murphy's business model elsewhere and how those reasons related to the Bicton locality, there were consumer requirements in the Bicton locality for the range of liquor products and services which the appellant proposed to provide and whether, in all the circumstances, it was in the public interest to grant the application, particularly in order to contribute to the proper development of the liquor industry in a manner which reflected the diversity of consumer requirements.

Conclusion

I would allow the appeal. The primary judge was in error in failing to find that the Commission's decision was vitiated by the errors of law I have identified. Counsel should be heard as to the precise form of the orders.
MURPHY JA: I agree with Buss JA.