Woolworths Ltd v IPG Management (SA) Pty Ltd

[2015] SASCFC 97

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal)

WOOLWORTHS LTD v IPG MANAGEMENT (SA) PTY LTD & ORS

[2015] SASCFC 97

Judgment of The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Parker

29 July 2015

GAMING AND LIQUOR - ADMINISTRATION - LIQUOR LICENSING - APPLICATION FOR A LICENCE - GENERALLY

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - LEGISLATIVE HISTORY OF ACT

The appellant sought a grant of a retail liquor merchant’s licence with respect to its premises in the Seaford Meadows Shopping Centre. The respondents are objectors from four licensed premises in the vicinity of the shopping centre. The application was refused by a Judge of the Licensing Court of South Australia at first instance.

The appellant sought permission to appeal that judgement to this Court.

Held (The Court):

1. The Judge expressly applied s 58(2) of the Liquor Licensing Act 1985 (SA). There is no reason to find that the application was unduly restricted by reference to a predecessor section.

2.  The Judge’s reasons support his ultimate conclusion.

3.  Permission to appeal is refused.

Liquor Licensing Act 1985 (SA) s 58(2), referred to.
Woolworths Ltd v Fassina Investments Pty Ltd & Ors [2015] SASCFC 72, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"Licensing", "Liquor Licence", "Retail liquor merchant's licence"

WOOLWORTHS LTD v IPG MANAGEMENT (SA) PTY LTD & ORS
[2015] SASCFC 97

Full Court:  Kourakis CJ, Stanley and Parker JJ

1. THE COURT:       This is an application for permission to appeal against a decision of the Licensing Court refusing an application by Woolworths Ltd for a Retail Liquor Merchant’s Licence for premises in a newly constructed shopping centre in Seaford Meadows. 

2. The Full Court of this Court recently reviewed the operation of s 58(2) of the Liquor Licensing Act 1997 (SA) (the Act) in Woolworths Ltd v Fassina Investments Pty Ltd & Ors [2015] SASCFC 72.

3. There the Full Court emphasised the importance of addressing whether the existing outlets in the locality, in the words of s 58(2) of the Act, “adequately cater” for the demand for alcohol.  The Full Court observed that s 58(2) of the Act might not always yield the same results as its predecessor, s 38 of the Liquor Licensing Act 1985 (SA), which precluded the grant of a licence unless public demand could not be “met” by existing outlets. In this matter the Judge expressly applied s 58(2) of the Act and there is no reason to apprehend that his Honour unduly restricted the operation of that provision by reference to its predecessor. While the Judge decided the matter prior to the decision in Fassina, it is not reasonably arguable that the outcome would have been any different if he had applied the Full Court’s reasoning. 

4. The Seaford Meadows Shopping Centre is a relatively small centre comprising a Woolworths supermarket and some speciality shops and food outlets.  It is about two kilometres north of the Seaford Central Shopping Centre which is much more substantial comprising:

   ·Foodland and Woolworths supermarkets

   ·a Big W store

   ·a Cheap as Chips store

   ·food stores including a butcher, bakery, small goods and a fruit and vegetable shop

   ·fast food outlets

   ·a range of home goods and electronic stores

   ·professional offices.

5. The Seaford Central Shopping Centre includes a BWS retail liquor store.  There are five other retail liquor outlets in and about the locality. 

6. The Judge’s essential reasons for refusing the application are set out below:[1]

   [1]BWS Seaford v Port Noarlunga Hotel, Cliff Avenue Liquor Store & Cellarbrations [2015] SALC 19 at [77]-[81], [83]-[84], [86]-[87]

   [77]I did not get the sense that any of the resident witnesses who gave evidence in support of this application were particularly unhappy about the way they presently access takeaway liquor. The effect of their evidence is that they do much of their daily and weekly shopping at the Seaford Meadows Shopping Centre and would find it very convenient to be able combine their takeaway liquor shopping with that shopping.

   [78]The range of shops at the Seaford Meadows Shopping Centre is relatively limited. It is plainly much more limited than the range at the Seaford Central Shopping Centre.

   [79]It would follow that many of the residents of the locality who use the Seaford Meadows Shopping Centre would on occasions, notwithstanding the attractiveness and convenience of that centre, find it necessary to go to places like the Seaford Central Shopping Centre to satisfy some of their retail and other needs. I therefore cannot approach my consideration of this application from the premise that if I granted the application, for most, the Seaford Meadows Shopping Centre would be a one stop shop.

   [80]I find that the roads within the locality are not especially busy. My impression is that travelling within the locality by car is relatively easy.

   [81]I find that for those living in the locality the times and distances involved in accessing the takeaway facilities at the BWS at the Seaford Central Shopping Centre, the Beach Hotel at Seaford, the Cellarbrations store at Moana Heights and the Cliff Avenue Liquor Store are, by contemporary standards, not great.

   …

   [83]Looked at by contemporary standards there is nothing unusual about the parking difficulties associated with the Seaford Central Shopping Centre.

   [84]For those living in Seaford Meadows that seek access to a BWS store it might at times take them more than the three minutes by car to travel to the BWS store in the Seaford Central Shopping Centre, as advertised in the Fairmont Group’s brochure. But not much more. For them, although the extra trip to that centre might be inconvenient it cannot be said that the BWS store at the Seaford Central Shopping Centre does not adequately cater for their demand for liquor for consumption off licensed premises.

   …

   [86]When that store is considered in combination with the BWS store at the Seaford Central Shopping Centre, the takeaway facility at the Beach Hotel at Seaford and the Cellarbrations store at Moana Heights and the Dan Murphys at Colonades, it is my view that the existing premises in and about the locality are adequately catering for the public demand for liquor.

7. The Judge’s reasons support his ultimate conclusion.   We do not consider, given the small size of the Seaford Meadows Shopping Centre and the proximity of other liquor retail outlets, that it could be properly said that there was a contemporary community expectation that Seaford Meadows Shopping Centre would include a liquor retail outlet.

   Conclusion

8. Permission to appeal is refused.