Court of Appeal (WA)|2004-11-26|Before: Mr P, Jones J, Templeman J, Wheeler J, Jenkins J, Greaves J

Always Holdings Pty Ltd & Ors v Liquorland (Australia) Pty Ltd [2004] WASCA 273 (26 November 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ALWAYS HOLDINGS PTY LTD & ORS -v- LIQUORLAND (AUSTRALIA) PTY LTD [2004] WASCA 273

Jurisdiction : LIQUOR LICENSING COURT OF WESTERN AUSTRALIA

Citation : RE LIQUORLAND PALMYRA; LIQUORLAND (AUSTRALIA) PTY LTD -v- A D MARTIN PTY LTD & ORS [2003] WALLC 18

Liquor and licensing - Liquor store licence - Application for removal to premises not more than 500 metres from original premises - Liquor Licensing Act 1988 (WA), s 38(2b)(b)

Liquor Licensing Act 1988 (WA), s 33, s 38, s 38(1), s 38(2)(a), s 38(2b), s 38(2b)(a), s 38(2b)(b), s 67, s 73, s 81, s 81(4)

Liquorland (Australia) Pty Ltd v Austie Nominees Pty Ltd (1999) 20 WAR 405

Armstrong v Edgecock [1984] 2 NSWLR 536

Jericho Nominees Pty Ltd v Dileum Pty Ltd (1992) 6 WAR 380

Palace Securities Pty Ltd v Director of Liquor Licensing (1992) 7 WAR 241

White v King, unreported; SCt of WA (Jones J); Library No 2496; 21 December 1978

1 TEMPLEMAN & WHEELER JJ: In this appeal, the Court is required to identify the test to be applied by the licensing authority in dealing with an application by the holder of a Category A liquor licence for the removal of that licence from existing premises to new premises which are not more than 500 metres away. The issue, which involves the construction of s 38 of the Liquor Licensing Act 1988 (WA) ("the Act") was raised as a preliminary issue in the Liquor Licensing Court by the appellants who have objected to the removal of the licence held by Liquorland (Australia) Pty Ltd, the respondent.

2 The learned Judge of the Liquor Licensing Court identified the issue and went on to set out his construction of s 38(2b) of the Act. His Honour concluded his reasons by saying he would make a direction in accordance with the conclusion he had reached. However, when the matter came before this Court, no order or direction had been extracted.

3 On 10 April 2003, the respondent applied in the prescribed form for the removal of its Category A liquor licence from premises at 367 Canning Highway to 375 Canning Highway, Palmyra. The application was expressed to be made pursuant to s 68 and s 81 of the Act. Section 68 deals with the form of the application. It is not presently relevant. Section 81 is concerned with the substance of applications for removal. Section 81(1) provides that the licensing authority - the Liquor Licensing Court in the present case - has the same jurisdiction in relation to an application for the removal of a licence as it has in relation to an application for the grant of a new licence.

4 By subsection 81(3), an applicant for the removal of a licence must satisfy the licensing authority:

"that the requirements of this Act in relation to the grant of a new licence ... are met in relation to -

(i) the licence sought to be removed; and

(ii) the premises to which it is sought to be removed ..."

"Notwithstanding subsection (3), the Director, at the written request of the applicant, may dispense with any requirement for advertising, and need not specify an affected area, where the Director considers that the removal of the licence is from and to premises within the same locality and is unlikely to cause significant adverse effects on other licences, or that any other proper reason exists, and that to do so will assist in an expeditious determination of the application in a manner not contrary to the public interest."

5 The "requirement for advertising" referred to in s 81(4) is that contained in s 67 of the Act which sets out the requirements for advertising for inter alia the removal of a licence. By s 73, a right to object to an application is conferred on persons of certain designated classes where an application is required to be advertised.

6 In the present case, the Director - that is, the Director of Liquor Licensing appointed under s 13 of the Act - did not dispense with the requirement for advertising. The application was therefore advertised: and the appellants duly lodged their objections.

7 The objectors are all Category A liquor licence holders in the Attadale, Bicton, East Fremantle, Melville and Palmyra areas. Their objection is based primarily on the fact that the respondent does not propose simply to relocate its existing business to nearby premises. The respondent proposes to move to premises which are very much larger than its present premises and to conduct its business in a substantially different way. The objectors say that the new outlet will be "a large packaged liquor bottle barn" (AB 16). The objectors contend that if the application succeeds, "the sheer volume of sales" which are expected from the respondent's new premises would have a detrimental effect on their businesses.

The requirements for the removal of a Category A licence

8 Until the Liquor Licensing Amendment Act 1998 (WA) ("the Amendment Act") came into force, the requirements for the removal of a Category A licence were contained in s 38(1) and (2) of the Act. They provide as follows:

"(1) An applicant for the grant or removal of a Category A licence must satisfy the licensing authority that, having regard to -

(a) the number and condition of the licensed premises already existing in the affected area;

(b) the manner in which, and the extent to which, those premises are distributed throughout the area;

(c) the extent and quality of the services provided on those premises; and

(d) any other relevant factor, being a matter as to which the licensing authority seeks to be satisfied,

the licence is necessary in order to provide for the reasonable requirements of the public for liquor and related services or accommodation in that area.

(2) Taking into account the matters referred to in subsection (1), the licensing authority in considering what the requirements of the public may be shall have regard to -

(a) the population of, and the interest of the community in, the affected area;

(b) the number and kinds of persons residing in, resorting to or passing through the affected area, or likely in the foreseeable future to do so, and their respective expectations; and

(c) the extent to which any requirement or expectation -

(i) varies during different times or periods; or

(ii) is lawfully met by other premises, licensed or unlicensed."

9 In Liquorland (Australia) Pty Ltd v Austie Nominees Pty Ltd (1999) 20 WAR 405, Anderson J, with whom Pidgeon and Wallwork JJ agreed, reviewed a number of cases in which the Court had considered the construction of s 38(1) of the Act. As Anderson J put it, at p 413:

"The underlying theme in these decisions is that the answer to the question whether the licence is 'necessary' to meet the 'reasonable requirements' spoken of in s 38(1) may be based simply on considerations of convenience to the public and public taste and preference as to the manner of shopping."

10 The Amendment Act was held by the Full Court to be the legislative response to the approach taken by the courts in their construction of s 38 of the Act in its original form.

11 A number of provisions were added by the Amendment Act. Those relevant for present purposes are s 38(2a) and (2b). They provide as follows:

"(2a) In considering what the reasonable requirements of the public may be for the purposes of an application under subsection (1) the licensing authority may have regard to -

(a) the subjective requirements of the public, or a section of the public, in the affected area for liquor and related services, whether those requirements are objectively reasonable or not; and

(b) whether the grant or removal of the licence will convenience the public or a section of the public in the affected area,

but the licensing authority may disregard either or both such considerations as it sees fit.

(2b) Notwithstanding anything else in this section -

(a) a liquor store licence shall not, other than in accordance with paragraph (b), be granted in respect of, or removed to, premises unless the licensing authority is satisfied that the reasonable requirements of the public for liquor and related services in the affected area cannot be provided for by licensed premises already existing in that area; and

(b) where application is made for the removal of a liquor store licence to premises situated not more than 500 metres from the premises from which the licence is sought to be removed, the licensing authority need not have regard to the reasonable requirements of the public for liquor and related services in the affected area."

12 In construing s 38(2b) in the Liquorland case (supra), Anderson J said, at 20 WAR 413:

"In the first place, subs (2a) embraces the concepts of subjective requirements and mere convenience as relevant considerations in deciding on the grant of Category A licences generally. This subsection aims, I think, to resolve the question as to whether and to what extent the subjective requirements of shoppers and matters of mere shopping convenience can be taken into account in determining whether the licence is 'necessary' under s 38(1). Subsection (2a) expressly permits the licensing authority to take those things into account in an application under s 38(1), or disregard them as it sees fit in the particular case.

Subsection (2b) is exclusively concerned with liquor store licences. The subsection plainly signifies a legislative intention that there be, to use the words of Doyle CJ in Woolies Liquor Stores v Carleton Investments (unreported, Supreme Court, SA, Library No S6602, 15 May 1998), a 'particular restraint' on the grant of liquor store licences. No doubt this reflects a recognition that a proliferation of liquor stores selling packaged liquor at discount prices may result in a decline in other forms of Category A licences such as hotels and taverns, and that if this happened, it would disadvantage a significant section of the public who prefer that form of supply."

13 As a result of the Amendment Act, the expression, "reasonable requirements of the public for liquor" is to be understood within the same section in two different senses. There is the sense provided for by s 38(1) and (2a). In that sense, the requirements of the public may be reasonable even if they are no more than mere subjective preferences. For example, a preference for "one stop shopping" within a supermarket complex may be reasonable, even though the same liquor can be purchased in separate premises nearby. That is the concept of a "reasonable" requirement at its broadest. However, because of the concluding two lines of subsection (2a), the licensing authority may disregard matters of subjective requirement or preference. If the licensing authority decided to disregard those matters, it would be left to apply a narrower concept of reasonableness. This would probably raise the question whether the requirement of the public for liquor, or for a particular type of liquor, could be satisfied other than by the grant or removal of the licence.

14 There is also a very narrow concept of reasonableness, which does not include subjective preference or matters of convenience. That is the concept of reasonableness employed in s 38(2b)(a), which provides, in effect, that a requirement is reasonable for the purposes of that subparagraph, only if the requirements of the public for liquor and related services in the affected area cannot be met by existing licensed premises.

15 The "particular restraint" imposed by s 38(2b)(a), referred to by Anderson J, is the restraint which results from the application of the latter, narrow, concept of reasonableness. That is, in the circumstances for which that subsection provides, the licensing authority is precluded from granting or permitting the removal of a licence unless it is satisfied that the reasonable requirements of the public for liquor cannot be provided by licensed premises already existing in the affected area. However, the constraint applies only where the grant or removal of the licence is "other than in accordance with paragraph (b)" (emphasis supplied).

16 Paragraph (b) applies where an application is made for removal of a liquor store licence to premises no further away than 500 metres from the existing licensed premises. In such a case the licensing authority "need not have regard to the reasonable requirements of the public for liquor and related services in the affected area" (emphasis supplied).

17 The Oxford English Reference Dictionary defines the expression "need not have", as "did not need to (but did)". The sense in which the expression is used in par (b) is, we think; does not need to (but may).

18 The conclusion reached by the learned Judge of the Liquor Licensing Court in construing s 38(2b) of the Act, was as follows:

"In my opinion, the purpose of the words 'need not have regard to the reasonable requirements of the public for liquor and related services in the affected area' in the context of s 38 and the scheme of the Act as a whole is to exclude the operation of s 38(2b)(a) in the case of a removal of a liquor store licence within 500 metres of its existing location."

19 If what his Honour meant by saying the scheme of the Act was to "exclude" the operation of s 38(2b)(a) was no more than that, since par (a) was in its terms mandatory, while par (b) conferred a discretion, the mandatory requirement of the former could not operate, we would agree with that conclusion. If, however, his Honour was intending to convey that where there was a removal within 500 metres of the existing location, the licensing authority was precluded from employing the narrow concept of reasonableness which is found in par (a), then that conclusion, in our view, would go too far.

20 A little later in his reasons, his Honour said the purpose of the legislation was:

"to require a liquor store licensee to satisfy the stricter test under s 38(2b)(a) in the case of a removal over 500 metres from the existing location of the premises, but otherwise to leave the operation of s 38(1) and s 81 of the Act intact, save in a case where the Director of Liquor Licensing exercises his discretion pursuant to s 81(4) of the Act and dispenses with the requirement for advertising."

21 As to this view, we note that, to the extent that s 38(1) requires regard to be had to the reasonable requirements of the public, the operation of that subsection is modified by the discretion to disregard those requirements contained in s 38(2b)(b), where the removal is within 500 metres. Subject to that reservation, we think his Honour's observation is correct.

22 Where there is an application for removal within 500 metres of an existing location, the scheme of the Act and the ordinary meaning of the expression "need not", as we have found it to be, confer a discretion upon the licensing authority, to have regard to the reasonable requirements of the public, or not, as the authority thinks fit. There is nothing in either s 38(2b)(a) or (b) which prescribes the way in which the licensing authority should proceed, it if decides to have regard to the reasonable requirements of the public, notwithstanding par (b): that is, if the authority determines that it is appropriate in all the circumstances of the case to do so.

23 In particular, contrary to the submissions of the appellants, there is nothing in either of those paragraphs or in the scheme of the Act as a whole which suggests that if the licensing authority does determine that in the particular circumstances it is appropriate to have regard to the reasonable requirements of the public, it is necessary for it to do so by reference to the stricter objective test provided by s 38(2b)(a), rather than the broader test contemplated by s 38(1) and (2a). As a matter of logic, if the statute permits the licensing authority to disregard the reasonable requirements of the public entirely in particular circumstances, it would seem odd that, if it does decide to have regard to those requirements, it is therefore bound to consider them in a particular way or by having regard to a particular standard.

24 As a matter of practicality, the circumstances in which an application falling within s (2b)(b) may be made are so various that it seems to us to be appropriate to leave the licensing authority a broad measure of discretion. If the new premises and new business proposed are remarkably different from the old, it may well be appropriate to apply the stricter test contemplated by s (2b)(a) as the licence may be, in all but name, completely new. However, there may also be significant differences between the old and the new premises in circumstances where there is nevertheless substantial continuity. For example, it might be appropriate for the licensing authority to have regard to what may be subjective preferences of customers to continue to deal with the licensee with whom they have an established connection.

25 Our view, therefore, is that where there is an application to remove a licence to premises within 500 metres of the existing premises, the licensing authority has a discretion whether or not to have regard to the reasonable requirements of the public for liquor, etc. If it determines to do so, it may have regard to such of those requirements, either subjective or objective, as it considers appropriate in all the circumstances of the case. An important consideration may well be the extent to which the business which it is proposed to carry on at the new location resembles that carried on previously.

26 As we have noted above, no order has been extracted by the parties to give effect to the conclusion reached by his Honour. This is a wholly unsatisfactory situation, because it is not clear precisely what issues this Court is being asked to resolve. The notice of appeal simply asks that the decision of the Liquor Licensing Court Judge be set aside and that the matter be remitted to his Honour to be determined according to law. The grounds on which those orders are sought are:

"1. The Judge erred in law by deciding the legal test for the removal of a Liquor Store Licence less than 500 metres, is 'in the operation of Section 38(1) and Section 81 of the Act'.

2. The Judge erred in law in construing Section 38(2b)(b) of the Act 'need not have regard to the reasonable requirements of the public for liquor and related services in the affected' to mean, a Liquor Store Licence which is moved within 500 metres is subject to the lesser test, applicable to all Category 'A' Licences, and found within Section 38(1) of the Act."

27 In order to clarify the issues, the Court directed the parties to confer for the purpose of agreeing the questions arising from his Honour's reasons which they wished to have answered in this appeal.

28 There has been a measure of agreement. The following question is asked by both parties:

"Does s 38(2b)(b) of the Act preclude the licensing authority from applying the test provided by s 38(2b)(a) in respect of approval to remove a liquor store licence to other premises not more than 500 metres from the premises from which the licence is sought to be removed?"

29 For the reasons set out above, we answer that question "no".

30 The respondent goes on to ask whether s 38(2b)(b) gives the licensing authority a discretion not to apply the test provided by s 38(2b)(a) in circumstances such as this.

"If the answer to question 1 is 'no' should the licensing authority consider whether, in all the circumstances of the application, it is appropriate to apply the test imposed by paragraph (a) of sub-section (2b) of section 38?"

32 For the reasons given above, we answer both these questions "yes".

33 Given that the previous two questions have been answered "no" and "yes" respectively, the respondent goes on to ask:

"should the licensing authority consider whether, in all the circumstances of the application, it is appropriate to apply:

i. the test imposed by paragraph (a) of sub-section (2b) of section 38 in the exercise of its discretion; or

ii. the test imposed by sub-section 38(1); or

iii. the test imposed by section 33, alone."

34 In answering that question, it is necessary to note that s 33 of the Act provides the authority with an overriding discretion to refuse any application, even if the applicant meets all the requirements of the Act: or to grant an application, even if a valid ground of objection is made out. We do not think it appropriate to refer to "the test" imposed by s 33. As we have noted above, that section contains an overriding discretion, to be exercised as the authority thinks fit. Subject to that qualification, we would answer this question "yes".

35 Finally, both parties have asked the formal question:

"Did the Licensing Court Judge err in his construction of section 38(2b)(b) of the Act, and therefore misdirect himself as to the proper approach to be taken to this case?"

36 Because of the inaccuracies noted earlier at par [18] - par [21] the answer to that question is "yes". We therefore consider that the appropriate course is to remit the matter to the learned Judge of the Liquor Licensing Court, to be dealt with according to law.

37 JENKINS J: I am grateful to Templeman and Wheeler JJ for providing me with their draft reasons for decision in this appeal. It is unnecessary for me to detail the background to the appeal and the relevant legislative provisions, because they have set them out in full.

38 For the reasons expressed by Templeman and Wheeler JJ, I agree that the Liquor Licensing Act 1988 (WA) ("the Act"), s 38(2b), in the case of an application for the removal of a liquor store licence to premises situated not more than 500 metres from the premises from which the licence is sought to be removed, gives a discretion to the licensing authority not to have regard to the reasonable requirements of the public for liquor and related services in the affected area in the determination of such an application.

39 The respondent's submission is that the subsection (2b) should not be construed in this way. The respondent's submission is that the subsection provides that the reasonable requirements of the public for liquor and related services in the affected area is not a matter which the licensing

authority can have regard to in the determination of such an application. The respondent submits that this is the subsection's "simplest and most logical construction".

40 As Templeman and Wheeler JJ have stated, the dictionary meaning of the phrase does not support the respondent's submission. In addition to the reference they have referred to, I note that the "Oxford English Dictionary", 2nd Ed, 1989 defines the noun "need-not" to mean "an unnecessary thing". Whilst the words "need not" are not used in the subsection as a noun, nonetheless, it is clear to me that the ordinary meaning of the words when used together are to indicate that something is not necessary. I have not found any support in a dictionary for the proposition that if a person need not have regard to something they are prohibited from have regard to it.

41 The respondent attempts to support its submission by reference to policy issues. First, it says that if the licensing authority may have regard to the reasonable requirements of the public, it places a very onerous burden on a licensee which seeks to move its licence a short distance. Secondly, it says that to grant a discretion to the licensing authority, has the practical consequence of requiring an applicant for removal to prepare its case on the basis that the discretion will be exercised against it. The inference being that the legislature would not have intended to place such an onerous burden on an existing licensee seeking to remove its licence a short distance.

42 In respect to the first point, if the subsection grants a discretion to the licensing authority, then that discretion can be exercised in a licensee's favour where the licensing authority believes that to have regard to the reasonable requirements of the public for liquor and related services in the affected area would place too much of a burden on the licensee having regard to the likely consequences of the removal. There is a further discretion given in the Act, s 81(4) to the licensing authority to avoid such a burden in an appropriate case.

43 As to the second contention, as the respondent concedes, this is a practical issue, the effect of which can be alleviated, at least in part, by the processes of the licensing authority.

44 Consequently, I remain of the view that the words "need not" in the subsection mean that the licensing authority in the case of an application for removal of a liquor store licence to premises situated not more than 500 metres from the premises from which the licence is sought to be approved, does not need to, but may, have regard to the reasonable requirements of the public for liquor and related services in the affected area.

45 It is implicit in the learned Judge's reasons that he came to the opposite conclusion. This is because he decided that in an application of this nature, the relevant test was contained in the Act, s 38(1), without considering whether he should exercise what I have found to be his discretion to have regard to the reasonable requirements of the public for liquor and related services in the affected area. His Honour's view is to be found at [3] where he says:

"In my opinion, the purpose of the words "need not have regard to the reasonable requirements of the public for liquor and related services in the affected area" in the context of s 38 and the scheme of the Act as a whole is to exclude the operation of s 38(2b)(a) in the case of a removal of a liquor store licence within 500 metres of its existing location."

46 His Honour found that the purpose of the Act s 38(2b)(b) was to exclude subpar (a), leaving the test in the Act, s 38(1) as the appropriate test in such cases. As I have said, my view is that this view is, in part, based on a misinterpretation of the words "need not". As I will now go on to explain, I am also of the view that the learned Judge erred in finding that the Act s 38(1) applies to such applications.

47 Having determined that the learned Judge erred, it is necessary for this Court to determine the appropriate tests where an application is made for the removal of a liquor store licence to premises situated not more than 500 metres from the premises from which the licence is sought to be removed and the licensing authority decides not to have regard to "the reasonable requirements of the public for liquor and related services" and where it decides to have regard to such requirements.

48 In this respect the parties again had different positions. At the hearing of the appeal, I understood the appellants to submit that if the licensing authority chose not to consider the reasonable requirements of the public, then the applicable test or tests are contained in the provisions of the Act which do not include considerations relating to the reasonable requirements of the public. This would exclude the whole of the Act, s 38. I further understood their submission to be that if the licensing authority chose to have regard to the reasonable requirements of the public, then it must apply the test in the Act, s 38(2b)(a) because the reference in the Act, s 38(2b)(b) to the reasonable requirements of the public must be a reference back to the test in subpar (2b)(a). However, the submissions that the court received from the appellants in response to the court's direction that the parties provide the court with the questions that they required the court to answer, indicate that the appellants' position in respect to the situation where the licensing authority decides to have regard to the reasonable requirements of the public is that the licensing authority is not obliged to, but does have the power to apply the test imposed by subpar (2b)(a).

49 The respondent's position is that if there is a discretion to have regard to the reasonable requirements of the public for liquor and related services in the affected area and the licensing authority chose not to have regard to those requirements, then the test for the grant of an application for a licence removal in these circumstances is contained in the Act, s 33. That is a similar position to the appellants. The respondent's submission is that if such a discretion exists and the licensing authority chose to have regard to the reasonable requirements of the public, then the test is that contained in the Act, s 38(1) and excludes the test in subpar (2b)(a). This it says is because par (b) only gives the licensing authority a discretion to have regard to the reasonable requirements of the public for liquor and related services in the affected area, that is the test in the Act s 38(1), and does not give it a discretion to have regard to the test in the Act s 38(2b)(a) which is whether the reasonable requirements of the public for liquor and related services in the affected area cannot be provided for by licensed premises already existing in that area.

50 His Honour was of a different view. He was of the opinion that if, as a consequence of the application of the Act, s 38(2b)(b) the reasonable requirements of the public were not taken into account, then the test for the grant of the removal was contained in the Act, s 38(1). The basis for this view being that the reference to the "reasonable requirements of the public etc" in par (b) was a reference to the test in par (a). If this test was not to be applied, the more general test of the reasonable requirements of the public as contained in the Act, s 38(1) was applicable.

51 There are no obvious answers to these issues. The terminology used in the Act is ambiguous in that the same phrase is used in different subsections and paragraphs of s 38 but the contexts give the same phrase different meanings. In subs 2(b)(b) the phrase "the reasonable requirements of the public for liquor and related services" is used but it is not at all clear whether the words have the same meaning as in the Act, s 38(1) or the Act, s 38(2b)(a). This Court held in Liquorland (Australia) Pty Ltd v Austie Nominees Pty Ltd (1999) 20 WAR 405 that these words had different meanings when used in these two subsections.

52 In determining my preferred construction of the Act, s 38(2b)(b), I have been assisted by Anderson J's comments in Liquorland (Australia) Pty Ltd v Austie Nominees Pty Ltd (supra) at 413 in respect to the purpose for the amendments to the Act, s 38 by the Liquor Licensing Amendment Act 1998 (WA) which inserted subs (2b) into the Act. Anderson J said:

"Subsection (2b) is exclusively concerned with liquor store licences. The subsection plainly signifies a legislative intention that there be, to use the words of Doyle CJ in Woolies Liquor Stores v Carlton Investments (unreported, Supreme Court, SA, Library No S6602-15 May 1998), a 'particular restraint' on the grant of liquor store licences. No doubt this reflects a recognition that a proliferation of liquor stores selling packaged liquor at discount prices may result in a decline in other forms of category A licences such as hotels and taverns, and that if this happened, it would disadvantage a significant section of the public who prefer that form of supply."

53 After referring to other cases, his Honour continued at 414:

"These cases expressly recognise that it is a legitimate objective in the field of liquor licensing to ensure, so far as reasonably practicable, the viability within the affected area of a range of category A licences. This is not for the purpose of advancing the economic interests of existing licensees but to satisfy the requirements of the public for a range of licensed types. Diversity of consumer demand is, of course, a matter to which the licensing authority is bound to have regard pursuant to s 5(2)(c) of the Liquor Licensing Act."

54 His Honour then continued to consider the proper construction of the Act s 38(2b) and concluded at 415:

"I think that, on the proper construction of s 38, an applicant for a liquor store licence is required by subsection (2b) to satisfy the licensing authority that the reasonable requirements of the public for liquor itself (or liquor of a particular type, such as bottled tabled wines) and related services cannot be provided for in the affected area by licensed premises already existing in the area; that is, cannot be provided for at all, or cannot be provided for without occasioning substantial difficulty or substantial inconvenience to the relevant public."

55 Anderson J found that this was a "different" and "more stringent" test than that which otherwise applies under the Act, s 38(1). The test also generally applies to the removal of liquor store licenses. In my view it is also the test which it is rational to think the legislature intended to apply in respect to the removal of a liquor store licence whenever the reasonable requirements of the public were considered to be a relevant consideration.

56 In my opinion, if the licensing authority decides to have regard to the reasonable requirements of the public for liquor and related services in the affected area in respect to an application for the removal of a liquor store licence to premises situated not more than 500 metres from the premises from which the licence is sought to be removed, then the applicable test for the grant of the application for removal is that contained in the Act, s 38(2b)(a) as this is the test which generally applies to an application for the removal of a liquor store licence where the reasonable requirements of the public for liquor and related services in the affected area is the relevant consideration for the grant of the application. Another way of putting it, is that the test in the Act, s 38(2b)(a) is the default test for an application for the removal of a liquor store licence where the exemption that is provided for in subpar (b) does not apply or, where, in the exercise of the licensing authority's discretion it is not applied.

57 On the other hand, if the liquor licensing authority decides not to have regard to the reasonable requirements of the public for liquor and related services in the affected area in respect to an application for removal of a liquor licence to premises situated not more than 500 metres from the premises from which the licence is sought to be removed, then I can see no room for the application of s 38 to such an application. I would therefore agree with the parties' views that such an application falls to be determined by the other provisions of the Act relating to the discretion of the licensing authority to grant or refuse applications, these primarily being the Act, s 81 and s 33. In this respect I do not agree with his Honour's view that in these circumstances the more general test in the Act, s 38 is enlivened. As Anderson J found in Austie (supra), by inserting subs (2b) the legislative intention was to create a different and more restrictive test for the grant or removal of liquor store licences. It seems to me that the terms of the subsection, read as a whole, exclude the less restrictive test in the Act, s 38(1) in respect to the grant or removal of liquor store licences. If the reasonable requirements of the public are to be had regard to in respect to such removals, then they are to be taken into account in the manner expressed in the Act, s 38(2b)(a). If they are not to be had regard to, then they simply are irrelevant either in the sense they are referred to in s 38(1) or s 38(2b)(a).

58 I would provide the following answers to the questions posed by the parties.

(1) Does the Act s 38(2b)(b) preclude the licensing authority from applying the test in the Act s 38(2b)(a) in respect of approval to remove a liquor store licence to other premises not more than 500 metres from the premises from which the licence is sought to be removed?

No, the licensing authority has a discretion as to whether it shall apply the Act s 38(2b)(a) in respect of applications to remove a liquor store licence to premises situated not more than 500 metres from the premises from which the licence is sought to be removed.

(2) If the answer to question (1) is "no", should the licensing authority consider whether, in all the circumstances of the application, it is appropriate to apply the test imposed by the Act s 38(2b)(a)?

Yes. In answer to the respondent's related question as to whether the licensing authority should also consider whether it is appropriate to apply the test in s 38(1) or s 33(1), I say that if the licensing authority decides not to have regard to the "reasonable requirements of the public etc" then it can only apply the provisions of the Act, including s 33(1) which do not relate to those reasonable requirements. If it decides to have regard to the reasonable requirements of the public then it must apply the Act, s 38(2b)(a).

(3) Did the Licensing Court Judge err in his construction of the Act s 38(2)(b) of the Act and therefore misdirect himself as to the proper approach to be taken to this case?

Licensing Amendment Act 1998

Always Holdings Pty Ltd & Ors v Liquorland

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Catchwords

Source

Catchwords

Judgment (106 paragraphs)

Always Holdings Pty Ltd & Ors v Liquorland (Australia) Pty Ltd [2004] WASCA 273 (26 November 2004)

The requirements for the removal of a Category A licence

Parties

Legislation Cited (2)

Cases Cited (3)