Woolworths Ltd v Fassina Investments Pty Ltd - [2015] SASCFC 72

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
WOOLWORTHS LTD v FASSINA INVESTMENTS PTY LTD & ORS
[2015] SASCFC 72
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Parker)
15 May 2015
GAMING AND LIQUOR - ADMINISTRATION - LIQUOR LICENSING - APPLICATION FOR A LICENCE - APPLICATION HEARING - MATTERS FOR CONSIDERATION - WHETHER REQUIRED FOR NEEDS OF PUBLIC - SOUTH AUSTRALIA
Appeal from a decision of the Licensing Court refusing the grant of a retail liquor merchant’s licence to the appellant (Woolworths Ltd) in relation to premises at the Arndale Shopping Centre. The shopping centre functioned as a very large regional centre but did not include a retail liquor store. There were retail takeaway liquor facilities offered by thirteen premises within or close to the locality of the proposed premises.
There was evidence that there was public demand for the convenience of one-stop shopping at the shopping centre. The licensing judge held that inconvenience was not of itself decisive and the public demand for liquor was being adequately met by the thirteen existing licensed premises.
Whether the licensing judge erred in applying s 58(2) of the Licensing Act 1997. Whether the appellant should be granted a retail liquor merchant’s licence at the proposed premises.
Held (Parker J; Kourakis CJ and Vanstone J agreeing):
The licensing judge erred in incorrectly applying s 58(2) of the Licensing Act 1997. The term “adequately cater” in s 58(2) requires the Licensing Court to make a normative judgment about the adequacy of the liquor supply provided by existing licensed premises. That involves a consideration of contemporary expectations of accessibility of retail liquor services. The evidence established that the contemporary community expectation was that a very large regional centre such as the Arndale Shopping Centre would include a retail liquor store.
Appeal upheld. Order of the Licensing Court set aside. The appellant’s application for grant of a retail liquor merchant’s licence approved.
Liquor Licensing Act 1997 s 58(2), s 58(1), s 53; Liquor Licensing Act 1985 s 38 (repealed), referred to.
Woolies Liquor Stores Pty Ltd v Carleton Investments Pty Ltd (1998) 73 SASR 6, discussed.
Waiata Pty Ltd v Lane (1985) 39 SASR 290; Lovell v New World Supermarket Pty Ltd (1990) 53 SASR 53; Liquorland (Australia) Pty Ltd v Duke Unley Pty Ltd [2004] SASC 113; Liquorland (Australia) Pty Ltd v Lindsey Cove Pty Ltd (2002) 81 SASR 337, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"adequately cater"

WOOLWORTHS LTD v FASSINA INVESTMENTS PTY LTD & ORS
[2015] SASCFC 72
Full Court: Kourakis CJ, Vanstone and Parker JJ

KOURAKIS CJ: For the reasons given by Parker J, I would allow the appeal, set aside the decision of the Licensing Court and make an order in its place granting the appellant a retail liquor merchant’s licence.
VANSTONE J: I also agree.
PARKER J: This is an appeal from a decision of the Licensing Court refusing the grant of a retail liquor merchant’s licence to the appellant, Woolworths Ltd, in relation to premises at the Arndale Central Shopping Centre, 479 Torrens Road, Kilkenny (“Arndale”). The appeal concerns the proper application of s 58(2) of the Liquor Licensing Act 1997 (“the Act”).
The first respondent, Fassina Investments Pty Ltd (“Fassina”), holds two retail liquor merchant’s licences in the relevant locality. The second respondent, Mimbalup Pty Ltd, is the landlord of premises on Hanson Road where, at the time of trial, Fassina intended to open a liquor store. The third respondents, Scott Cove Pty Ltd and Daly Waters Pty Ltd, are the joint licensees of the Regency Tavern at Days Road, Ferryden Park. That hotel includes a bottle shop trading under the Thirsty Camel name.
For the reasons that follow, I would uphold the appeal and set aside the order of the Licensing Court. I would order that the appellant’s application for the grant of a retail liquor merchant’s licence at Arndale is approved.
The Liquor Licensing Act 1997
As I have already noted, this appeal concerns the operation of s 58(2) of the Act. This provides that:
An applicant for a retail liquor merchant’s licence must satisfy the licensing authority that the licensed premises already existing in the locality in which the premises or proposed premises to which the application relates are, or are proposed to be, situated, do not adequately cater for the public demand for liquor for consumption off licensed premises and the licence is necessary to satisfy that demand.
The terms of s 58(2) give rise to two questions:
1Do the licensed premises already existing in the locality adequately cater for the public demand for liquor for consumption off licensed premises? and
2Is the licence necessary to satisfy that demand?
Even if an applicant satisfies the two step test under s 58(2), the application might potentially be refused by the licensing authority under s 53(1). This confers an unqualified discretion upon a licensing authority to grant or refuse an application on any ground or for any reason it considers sufficient. In this case, the licensing judge noted that if he had found in favour of the appellant under s 58(2) he would not have exercised the court’s discretion under s 53 to refuse the application.
Background
Arndale is located at the junction of Torrens Road and Hanson Road, Kilkenny. It functions as a very large regional centre and attracts over 6 million visitors each year. The centre has an area of 44,600 square metres and includes two large supermarkets, Harris Scarfe and Big W stores, three banks, a post office, medical practices and more than one hundred specialty shops. A major upgrade and refurbishment was completed in early 2013 at a cost of about $35M. Patronage has increased since that time.
Also included in the Arndale complex, and adjacent to the shopping centre, is a cinema complex with eight screens. An interchange serviced by thirteen different bus routes is located in the Arndale car park. The car park offers about 2,300 parking places.
The total retail floor area at Arndale is about three quarters of that at Westfield West Lakes but well over double the size of Castle Plaza, Burnside Village and Port Canal and almost four times the size of Mitcham Square. Each of those centres includes a liquor retailer.
The proposed liquor store would trade under the BWS name. It would occupy part of the area currently operated by Woolworths as a supermarket. It is intended that customers may enter the liquor store directly from the car park or from an internal mall without having to enter the supermarket. The store would cover 197m², including a walk in cool room of 30m². Woolworths intends to stock about 1600 different liquor products.
For many years there was a retail liquor merchant’s licence for premises located within the shopping centre at Arndale. The licence had been granted to Waitata Pty Ltd following an appeal to this Court in 1985.[1] That facility was later operated by Coles as a Liquorland store from 1992 until 2007. It was then operated for two years by Fassina. The licence was then removed by Fassina to another site at Arndale that was outside the main shopping centre but within the external car park. Fassina traded at the new location under the name of Liquor Bandits until the end of 2011.
[1] Waiata Pty Ltd v Lane (1985) 39 SASR 290.
The licence was then placed in suspension and sold to Coles. In early 2014 the licence was removed by Coles to a site at the St Clair Shopping Centre about two kilometres distant from Arndale. This site is adjacent to a Coles supermarket and operates as a Liquorland outlet.
The locality
The licensing judge defined the locality a little differently to the experts called by the parties. His Honour found that the boundaries were Grand Junction Road to the north, Port Road to the south, Addison Road and Cheltenham Parade to the west and Days Road and Rosetta Street to the east. Those findings are not challenged on appeal.
The licensing judge had regard to the retail takeaway liquor facilities offered by thirteen premises within or close to the locality that his Honour had identified. As I have noted, two of those businesses are, or will be, conducted by Fassina. The licence for the Fassina store at Hanson Road, Mansfield Park (about one kilometre north of Arndale) was under suspension at the time of the trial. Those premises are owned by the second respondent. Fassina plans to develop this site into a modern, well stocked liquor store. The other Fassina store is located on the western side of Addison Road just north of its junction with Torrens Road at Pennington.
Of the other takeaway liquor facilities within or close to the locality, four trade under the BWS name, two operate under the Sip’n Save name, two are Liquorland stores,[2] a further two trade under the Thirsty Camel badge while one is a Dan Murphy’s outlet. Seven of these facilities are attached to hotels while the other six are stand alone premises. Only four of the thirteen relevant premises are located south of Arndale.
[2] The Liquorland store within the St Clair development holds the licence that formerly operated at Arndale.
The objectors contended at trial that the facilities offered by five other licensed premises further outside the locality should also be taken into account. The judge held that these were too remote to be of much significance. That finding is not challenged on appeal.
The evidence
Woolworths called a planner, Graham Burns. Much of his evidence related to the locality issue. Because the judge reached a different conclusion on the locality issue to both the planning experts, and that finding is not subject to appeal, it is unnecessary to refer to that matter.
The evidence of Mr Burns described the placement of Arndale in the hierarchy of shopping precincts. While for planning purposes it was classified as a district centre, in his opinion Arndale functioned as a regional centre for the north western metropolitan area due to its size and the range of facilities available. He noted that the north western region is undergoing substantial urban renewal, an upward movement in socio-economic status and steady population growth. The locality is well served by public transport operating through the upgraded Arndale bus interchange.
The objectors relied upon the evidence of Jeffrey Smith, a planning consultant. Mr Smith generally agreed with the evidence of Mr Burns although he defined the relevant locality somewhat differently. Mr Smith referred in his evidence to the fragmented and complicated nature of the car parking arrangements at Arndale. He conceded in cross examination that people shopping at Arndale were likely to want to purchase liquor.[3]
[3] Trial transcript at P 211 , L 41.
A Mr Anthony Smith, the business manager for liquor licensing with Woolworths, gave evidence in support of his employer’s application. He stated that Arndale was much improved in comparison to the situation ten years ago. He noted that there was no shortage of parking. Mr Smith also considered that the proposed store would be viable. In his words, Arndale was “screaming out for a bottle shop”. The Woolworths supermarket at Arndale attracted about 23,000 customer transactions each week. He understood that Coles had disposed of its Arndale liquor store at a time when it was selling a large number of its poorer performing stores across Australia.
Woolworths also called its senior regional property manager, Matthew Holland. He said that following the refurbishment of Arndale and the expansion of the Woolworths store to offer services such as a deli, a bakery, a large fresh fruit and vegetable department and a butcher, sales had increased by 34% in comparison to the previous year. Mr Holland considered that the location of the proposed store would result in its serving not only Woolworths customers but others. In his view there was a range of car parking close to the proposed store. He also considered that the proposed store would be viable. All other similar centres in metropolitan Adelaide had a liquor store.
Woolworths also called Ms Lara Byrne, the marketing manager for Arndale. She said that while many customers came to Arndale by car, many also walked while others used public transport through the bus interchange or taxis at the two ranks. The primary catchment area was within two to three kilometres of Arndale. There were about 30,000 residents in that area. Trade had increased following the recent refurbishment. In her view it was “incredibly important” for the centre’s tenancy mix for it to have a take-away liquor facility. There had been a number of inquiries from customers about the return of a bottle shop. In her opinion, it was inconsistent with what was happening elsewhere in Adelaide for a centre the size of Arndale not to have a bottle shop.
Woolworths called seven witnesses in support of its contention that there was a public demand for take-away liquor. Each of the witnesses said that it would be convenient for them if there was to be a liquor store at Arndale. Two of the witnesses spoke favourably of the car parking at Arndale with one describing it as “fantastic”.
Each of the witnesses regularly shopped at Arndale. Two of the witnesses had used the liquor store formerly located at Arndale and one said that he was very disappointed when it had closed. Several of the witnesses made purchases from the Dan Murphy store at Welland. Others also made use of the drive-in facilities at local hotels. One of those witnesses used a taxi for that purpose but would rather buy liquor at Arndale.
Mr Ross Fassina, the managing director of the Fassina Group, gave evidence in support of the respondents. His evidence was that he had not found it possible to operate the former Arndale liquor store successfully. Beer sales were a major element of the local liquor market. Because of the limited space in the store it was not possible to stock cheaper ranges of beer. A further problem was that because of the size of the store it was not possible to supply beer that was cold enough to satisfy the customers. Another difficulty was that customers had a problem in getting beer to their cars. Thus, customers tended to buy their beer at hotels where it was easier to place a carton in the car boot rather than transport it to their car in a shopping trolley. About 60% of the sales had comprised beer.
Mr Fassina was also critical of the car parking arrangements at Arndale when his company had run the liquor store. The Fassina Group had offered to sell the licence to Woolworths, Coles and the proprietors of Arndale without success. Coles then purchased the licence from the Fassina Group subject to approval for its removal to the St Clair site.
The judge’s reasons
While the judge noted that there had been some conflict in the evidence about car parking, his Honour concluded that at most times there would be ample car parking except perhaps at peak times and periods. His Honour also found that the previous Arndale liquor store had not been exceptionally busy. That suggested that many Arndale shoppers were buying their liquor elsewhere.
The judge noted that most of the applications for new licences or removal of licences into shopping centres were made by either Coles or Woolworths. Mr Anthony Smith had indicated that, if it could, Woolworths would have a liquor store in every supermarket. The judge concluded that it was safe to assume that supermarkets benefit from having a retail liquor outlet nearby.
The judge accepted the evidence of Mr Fassina about the preference of Arndale customers to buy beer by the carton. In the view of the judge, that was consistent with the socio-economic profile of Arndale customers. The judge also accepted Mr Fassina’s evidence about the difficulties customers had in moving cartons of beer in a supermarket trolley.
The judge accepted that there had been improvements made to Arndale and also that the proposed location of the bottle store would give much better access to the car park than the previous store. Nevertheless, his Honour concluded that, for the reasons given by Mr Fassina, many persons using the centre would continue to obtain their liquor elsewhere. That is because customers would find it more convenient to make bulk beer purchases at premises that provide easy vehicle access.
The judge also found that the evidence of the local residents did not suggest that there was any serious complaint about the range of liquor available within the locality or that the range of liquor outlets was inadequate. The evidence had confirmed his Honour’s tentative assessment that the locality was very well serviced with liquor outlets and bottle shops.
The judge noted that, while Arndale was a focal point where the public congregate and shop and therefore might be expected to include a bottle shop, this was not the test under section 58(2).[4]
[4] Woolworths Liquor BWS Arndale [2014] SALC 14 at [116].
The evidence of the residents simply established that it would be very convenient for them if there was a liquor store at Arndale and some were disappointed that it was no longer available.[5] In that context his Honour referred to the remarks of King CJ in Lovell v New World Supermarket Pty Ltd[6] that the inability of customers to obtain liquor when they did the rest of their shopping may be irritating but did not establish that the demand for liquor could not be met by existing facilities. Inconvenience to customers was relevant when determining whether public demand could be met by the existing facilities but was not decisive. King CJ had further noted that an attempt to provide access to a full range of liquor for everybody who did not have the use of a car would result in a wholly undesirable proliferation of liquor outlets. However, it was a matter of degree. King CJ had concluded with the observation that the statutory test will be satisfied if the public demand for liquor in the locality cannot be met without unreasonable difficulty and inconvenience. Distance and traffic conditions were important considerations and entrenched shopping habits, if reasonable, were not to be disregarded.
[5] Ibid at [125].
[6] (1990) 53 SASR 53 at 55 – 56.
The judge also noted the observation by Debelle J in Liquorland (Australia) Pty Ltd v Duke Unley Pty Ltd[7] that the fact that there were elderly and disabled shoppers and people who did not drive would not, standing alone, establish that the existing licensed premises did not adequately cater for demand and that the grant of a licence was necessary to satisfy that demand.
[7] [2004] SASC 113 at [43].
The judge held that the public demand for liquor was being adequately met by the thirteen existing licensed premises. Some of those premises would offer a delivery service. While some members of the public would not wish to purchase take-away liquor from a hotel, they could make use of the six bottle shops in the locality or the delivery service offered by some of the licensed premises.
The judge rejected a submission that Woolworths should be denied a licence because it had created the need for a new facility.[8] That issue was not pursued on appeal.
[8] Liquorland (Australia) Pty Ltd v Lindsey Cove Pty Ltd [2002] SASC 17 at [34]; (2002) 81 SASR 337 at 344.
As I have already noted, the judge indicated that, if the issue had arisen, he would not have exercised the discretion under s 53 to refuse the application.
The respondents’ submissions
The respondents submitted that the arguments raised by the appellant were no more than an attack on the findings of fact made by the specialist Licensing Court. The judge had applied the correct test and no error of principle had been identified. There was no basis for this Court to interfere.

Contrary to the submission of the appellant, the respondents contended that the judge was correct to take into account the availability of liquor from premises just outside the locality identified by the judge.
The respondents also submitted that the public demand for “one-stop” shopping was a relevant consideration but not sufficient, of itself, to demonstrate a demand that could not be met by other facilities.
A central element of the respondents’ submissions was that the test under s 58(2) is stringent and cannot be met by simply showing a “demand” that may be inferred from the size of a shopping centre. An applicant must also show that the demand is not “adequately met” by existing facilities and that it is “necessary” to grant a licence to meet that demand. The focus of s 58(2), when compared with s 58(1), is on the adequacy of existing facilities rather than questions of preference or convenience. It was contended that, in part, this reflects the central role of hotels in the legislative scheme and the greater requirement that they be protected from competing holders of retail liquor merchant’s licences.
Consideration
Section 58 of the Act is expressed in different terms to s 38 of the Liquor Licensing Act 1985 (the 1985 Act) which formerly governed the grant of a retail liquor licence. The former s 38 provided as follows:
38.(1) Subject to subsection (2), a retail liquor merchant’s licence shall not be granted in respect of, or removed to, premises unless the licensing authority is satisfied that the public demand for liquor in the locality in which the premises are situated cannot be met by other existing facilities for the sale of liquor.
(2)Subsection (1) does not apply to the removal of a retail liquor merchant’s licence to premises situated not more than 500 metres from the premises from which its removal is sought.
(3)Subject to subsection (5), a retail liquor merchant’s licence shall not be granted in respect of, or removed to, premises unless the premises—
(a)are devoted entirely to the business conducted in pursuance of the licence;
…
Applicants faced a clear difficulty in satisfying a literal application of the test established by s 38 of the 1985 Act. That difficulty was addressed by the courts adopting an interpretation that gave effect to the object of the statutory provision. Thus, the existing capacity of licensees was only regarded as sufficient if demand could be met without imposing “unreasonable difficulty and inconvenience” on the public.[9]
[9] Lovell v New World Supermarket Pty Ltd (1990) 53 SASR 53 at 56.
In Woolies Liquor Stores Pty Ltd v Carleton Investments Pty Ltd,[10] after comparing s 38 of the 1985 Act (the 1985 provision) with the current s 58(2) (the current provision), Doyle CJ wrote:
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. By this I mean that the Licensing Court is to apply contemporary standards in deciding what distances one could reasonably expect customers to travel to obtain liquor, in deciding how much time one could reasonably expect them to spend getting to a liquor outlet, in deciding the amount of inconvenience that one could expect them to accept if, as will often be the case, a liquor outlet is not available at the place where they prefer to do most of their shopping, and in deciding the range of liquor and level of service that it is reasonable for them to expect. The court is required to determine not just what the public in the relevant locality want. If, whatever the public may want, there are existing premises that are capable of catering for the public demand for liquor, the court must decide, by reference to contemporary standards, whether, if the public are to satisfy their demand at those premises, it can be said that their demand is adequately catered for.
As was the case under s 22(2) of the Licensing Act, and s 38(1) of the 1985 Act, mere inconvenience in getting liquor from an existing outlet is not enough to justify the grant of a new licence. Nor is a mere preference to shop at a particular place, or a preference for “one-stop shopping” enough to establish that existing premises do not adequately cater for the public demand. The fact that the public wish to purchase liquor at a proposed new outlet, or would prefer to be able to purchase their liquor at that outlet, does not of itself establish that existing premises do not adequately cater for the public demand. The court is required to assess that wish or preference by reference to contemporary standards to determine whether, if the demand for liquor is to be met at existing premises, it can be said that those premises do adequately cater for the public demand.
It is tempting to look for synonyms and substitutes for the statutory standard that existing premises do not adequately cater for the public demand. It is better to resist that temptation, because in the end it is the statutory test that must be applied. In practice, I expect that the outcome in a given case will be pretty much the same as the outcome would have been under the previous legislation. In particular, the matters referred to by King CJ in Lovell v New World Supermarket (at 55-56) will continue to be relevant matters for consideration. But, for better or worse Parliament has changed the statutory language, and it is that language that must be applied.
[10] (1998) 73 SASR 6 at 11 – 12.
I will make several observations about these three paragraphs in the judgment of Doyle CJ. In the first of these paragraphs the former Chief Justice recognised that when determining an application for a retail liquor licence the Licensing Court must make a normative judgment about contemporary expectations of accessibility.
I consider that the reference by Doyle CJ in the second of the paragraphs that I have cited to a “mere preference” for one stop shopping was not intended to deny that consideration significant weight when the normative standard is determined. The point being made by Doyle CJ was that the preferences of some consumers, whether that be a liking for one-stop shopping or a desire for a liquor store in any other location, were not, of themselves determinative. Nevertheless, the preferences and aspirations of significant sections of the community are an important consideration in fixing the normative standard that is required by the words “adequately cater”.
I also note that, as Doyle CJ observed in the last of the three paragraphs that I have cited, the change in the language of the current provision will generally not produce a different result than the 1985 provision. That said, it remains important to identify clearly the extent of the change so that it can be given effect in those cases where it will lead to a different result. For the reasons that follow, this is one of those cases.
I stress that s 58(2) re-focuses the test from a question as to whether the demand in a locality can be “met” without unreasonable inconvenience by existing local retail facilities to require an assessment by the licensing authority of whether the existing facilities “adequately cater” for that demand. The term “adequately cater” has altered the focus of the public demand test to require consideration of the public’s expectations as to the accessibility of retail liquor services.
The extent to which existing facilities cater for the contemporary shopping habits of the public as a whole, or significant sections of it, is an important element of the “adequately cater” test. The degree of difficulty and inconvenience that the public, or a significant section of it, will suffer, if an application is refused, is an important element of that test. However, it is not the sole criterion. Contemporary patterns of family, work, and social life that rely on the convenience of one-stop shopping are also relevant considerations. In that respect, the current provision has effected a significant relaxation of the former test.
It must also be recognised that, in contrast to applications for hotel licences where s 58(1) of the Act applies, it is not enough to show that there is an unmet demand which the applicant would meet. That approach would permit the preferences of a significant section of the public to be determinative. As I have already noted, s 58(2) requires the Licensing Court to make a normative judgment about the adequacy of the liquor supply provided by the existing licensed premises. However, the standard to be applied when making that normative assessment has changed.
In this case the judge failed for two reasons to apply correctly s 58(2) of the Act. The first is that his Honour determined the application by applying the “unreasonable difficulty and inconvenience test” as an exclusive test in itself. The judge did not also address the broader “adequately cater” test required by s 58(2). That is apparent from [140] of his Honour’s reasons where he stated that he was not satisfied that the needs of persons who did not wish to buy take away liquor from hotels could not be met without unreasonable difficulty and inconvenience. The basis for that finding was the availability of six bottle stores in the locality and also home delivery services.
The second basis upon which the judge erred in applying s 58(2) is that he did not address the question whether the contemporary community expectation was that Arndale would include a retail liquor store. His Honour did not consider contemporary community expectations to be relevant. At [116] his Honour noted that Arndale might be expected to house a bottle shop but this community expectation was not the test.
To the contrary, in my opinion this consideration is of particular importance because of the status of Arndale as a large regional centre based upon its size, location and very substantial patronage. Regardless of the accessibility of existing outlets in the locality, it was necessary to take into account contemporary social and work patterns and measure the significance of Arndale in that context. In that light the evidence of Mr Fassina about his lack of success with an earlier liquor outlet at Arndale, upon which the judge placed significant weight, was of little moment.
As the judge recognised, the evidence quite clearly established that the contemporary community expectation was that a very large regional centre such as Arndale would include a retail liquor store. I refer to the evidence of the business witnesses Matthew Holland, Lara Byrne and Anthony Smith and, more significantly, that of the expert planning witness Graham Burns. The planner called by the respondents, Jeffrey Smith, conceded in cross examination that Arndale shoppers would wish to have access to alcohol.[11] The tenor of the evidence about community expectations was not inconsistent with the evidence of several residents that it would be very convenient for them if there was a liquor store at Arndale.[12]
[11] Trial transcript at P 211 , L 41.
[12] Woolworths Liquor BWS Arndale [2014] SALC 14 at [125].
I would uphold the appeal. Rather than expose the parties to further costs and delay by remitting the matter back to the Licensing Court, I consider it appropriate for this Court to determine the application and order that the appellant be granted a retail liquor merchant’s licence