1. Mr Canavan QC with Mr Bryant, on behalf of the applicant, submitted that their client had done all it could to obey the law and encourage harm minimisation. They also called evidence from an ex-police licensing inspector, Mr Hart, who has revised the Exford's Code of Conduct since the middle of last year. Since that time they submitted that their client had done all that was possible to keep within the law. Further, they have made serious efforts in relation to harm minimisation and that the sale of packaged liquor after 11:00 pm by their client was a convenience to the community and was associated with a vibrant area, such as the area where the Exford was situated.

1. It is clear that the joined party and the respondent kept the Exford under close surveillance for a period of approximately 2 years until the middle of November 2008. It was in relation to this period that the 21 witnesses that I have previously referred to gave evidence of the incidents occurring at the Exford. It is clear from a register kept by the Exford that it was given very close attention by the police over the period of approximately 2 years.

1. Mr Canavan with Mr Bryant in their submissions made a close examination of the incidents upon which the respondent and joined party relied. In analysing these incidents, it became clear that :

1. Only 30 incidents recorded between 25 April 2008 and 10 November 2009 (524 days), related to the bottleshop. 2. Of the 3 incidents relating to sales to intoxicated persons, one was in fact before 11:00pm. Further, infringement notices that were issued in relation to all of these 3 incidents were subsequently withdrawn.

1. The only 2 incidents where the infringement notices were not withdrawn related to the bar rather than the bottleshop. I accept that one of the incidents related to hours of trading on Anzac Day was an honest mistake. The second incident related to patrons entering the bar through a window. I understand that the windows have now been locked from the inside so that it is unlikely that such an incident would occur again. This incident did not relate to the bottleshop.

1. In relation to the queue incident, no infringement notice was issued and, in any event, it is unlikely that such an incident would happen again because a new procedure has been set up for patrons to queue when entering the bottleshop. 2. There were 3 incidents between 26 September 2008 and 14 April 2009 where intoxicated persons were refused entry to the bottleshop. The refusal of this entry was in accordance with the applicant's obligations pursuant to the Act. It should be noted that no action was taken against security staff. 3. Four of the incidents related to the alcohol which was supplied by the applicant's bottleshop being consumed in a public place between March 2009 and September 2009. In relation to each of those incidents, the alcohol was sold to the relevant persons prior to 11:00pm. 4. There is a further 16 incidents between 7 March 2009 and 15 November 2009 where it is alleged that persons who purchased alcohol or were given alcohol by others purchased from the applicant's bottleshop consumed such alcohol in the street. Only 4 penalty notices were issued in relation to each one of the offences referred to. The notices were issued to those consuming the alcohol in a public place.

At this point, it should be noted that it is not an offence under the Act to consume alcohol in a public place. The offence is created by the Melbourne City Council local laws. I understand that those laws do not cover the area north of Victoria Street.

1. Further, it should be noted that Mr Hart, who is experienced in liquor laws after many years in the police force, gave evidence that in a 3 year period there were only 182 penalty notices issued to people consuming alcohol in a public place.
2. It should also be noted that the bottleshop has no way of preventing people from breaking the Council's local law in relation to drinking in the street. However, it does warn those people.
3. Mr Canavan and Mr Bryant have correctly extracted and analysed the "only 9 incidents of a 21 month period which could conceivably justify a variation in the operating hours of the bottleshop requiring it to close at 11:00pm".
4. Those incidents are set out in their submissions -

Large crowds drinking in street. Some purchased alcohol from bottle shop. Unfortunately no complaint made by police, therefore no opportunity to investigate or rebut. It is fair to infer that there was no significant misuse or abuse of alcohol or detriment to the amenity because there was no complaint made at the time or subsequently and there was no police intervention.

Sgt Tharle acknowledged that the incident did not warrant further investigation, infringement notices, or even counselling of hotel management.

Supply of alcohol after 1.00pm on Anzac Day. This is an incompetence offence. The actions of the hotel in retaining Mr Hart will ensure that it is not repeated.

Breaching lockout. This arose from miscommunication between hotel and police. In support of the hotel staff it is noted that packaged liquor outlets were not included in the lockout. It was not deemed to justify an infringement notice. Sergeant McLachlan acknowledged that bottle shop staff believed that its operation was not caught by the lockout.

Queue blocking footpath. This is a minor incident which has been rectified by bollards and crowd control.

Sgt Shaw's evidence is not borne out by the CCTV and he (reluctantly) acknowledged this. The infringement notice was withdrawn with an acknowledgement that the hotel had a defence.

The vodka advice was a responsible reply to a patron question in relation to the product on sale.

The crowd controller register is the responsibility of the security company and not the hotel.

There was no alleged sale to a minor by the hotel, nor was there any illegality committed by it. Indeed, the suggestion by Mr Woolley that the recipient was a minor was an unjustified inference. His running notes indicate that he believed that the recipient was 18.

CCTV shows the patrons were not intoxicated at time of sale. The patrons were ejected from the Guandi bar because they were consuming alcohol purchased elsewhere, not because they were intoxicated.

If the blocking did occur, it was brief. The blocking was not borne out by the tendered photographs. No pedestrian appears to have been inconvenienced

1. I have already referred to the fact that were a number of amendments to the Act, which came into operation on 1 January 2010. Mr Morris and Mr Reid emphasised that those amendments were caused by the concern that the community has in relation to the harm caused by the sale of alcohol. They emphasised that the principles in relation to consideration of the harm caused by alcohol and the harm minimisation are set out clearly in the objects of the Act contained in s 4 and that sub-section (2) of that section was inserted recently to strengthen the Government's resolve to stop harm being caused by the sale and use of alcohol and what is referred to in the Act as harm minimisation.
2. It is clear that the scheme of s 4 of the Act is to balance by the facilitation of "the development of a diversity of licensed facilities reflecting community expectations" on the one hand and to "minimise harm arising from the misuse and abuse of alcohol" on the other.
3. At paragraph 12 of the respondent and joined party submissions, it was stated :

On the face of it, 24 hour trading for the Exford Hotel bottleshop would facilitate the development of a diversity of licensed facilities; as there is currently no bottleshop in central Melbourne. However, such a conclusion does not give effect to the words : 'reflecting community expectations'. What are 'community expectations' is difficult to prove with traditional evidence. ... In the absence of a properly carried out social survey, it must be a matter for the tribunal to make the appropriate judgment based on its general experience.

We submit that the community does not expect 24 hour bottleshops. The community is aware that alcohol is a special product, with the potential for adverse social implications. The community is generally aware of the issues raised by Mr de Carlo about social consequences of alcohol. The community is generally aware that alcohol poses special problems late at night.

1. Pier de Carlo is the Director for Policy, Planning and Strategy Branch since 2008. He has had vast experience over many years in relation to alcohol strategies, mental health and drug policy prevention. He referred to a document called "Restoring the Balance - Victoria's Alcohol Action Plan 2008-2013 (VAAP)". He stated in relation to the VAPP that it :

Commits the Victorian government to a wide range of health, education and regulation initiatives to 'restore the balance' between harmful and responsible alcohol consumption for individuals, families and communities, and to facilitate broader partnerships to address alcohol-related issues.

1. Mr de Carlo refers to the amendments that came into operation on 1 January 2010, and in particular in relation to the Minister's Parliamentary speech for that Bill where it is stated -

In order to better support the aims of the Victorian Alcohol Action Plan, the new risk-based fee model and to reflect the community's expectations, we have clearly underscored that the harm minimisation object of the Act extends to encouraging a culture of responsible consumption of alcohol and reducing risky drinking of alcohol and its impact on the community.

1. Mr de Carlo also referred to a report prepared by The Allen Consulting Group - "Alcohol-related harm and the operation of licensed premises".
2. The Allen report generally deals with the sale and consumption of alcohol generally not particularly in relation to packaged liquor outlets and, unsurprisingly, makes no reference to the Exford hotel. At page 37 of the report it is stated -

The results of this analysis must be interpreted carefully. The results do not suggest that the alcohol-related harm associated with packaged liquor licensees is low; rather, that the alcohol-related harm that occurs in or near premises with a Packaged Liquor Licence is low. The actual harm may occur some distance away from these premises and is not able to be linked back to the licensee using currently available data.

1. Further, Mr de Carlo refers to a report prepared by Marsden Jacob Associates : "Identifying a Framework for Packaged Liquor Retailing" and Mr de Carlo concludes at paragraph 23 of her statement -

In terms of packaged liquor outlets, it has been found by research sponsored by the World Health Organization that there is strong evidence linking the reduction of hours or days when alcohol can be purchased to significant reductions in overall harm. A report by Marsden Jacob Consultants discussed findings that restricting hours of trading for packaged liquor outlets are likely to have the greatest impact on persons who do not keep a ready supply of alcohol.

1. Mr Morris stated that it is very likely that the persons who would purchase alcohol from the applicant's bottleshop would fit into a category where persons do not keep a ready supply of alcohol. He stated that after 11:00pm it is likely that the persons would be relatively young (under 25) and would be out for a good time in the clubs of Melbourne. He also referred to the practice of pre-loading, which involves patrons of nightclubs buying alcohol before they enter the nightclub from a bottleshop and consuming that alcohol before they enter the nightclub so that they would not have to pay the extra price for drinks which the nightclubs would charge. He also referred to a practice of side-loading, which is where the patrons of nightclubs leave the nightclub for a short time, purchase alcohol from a bottleshop and then re-enter the nightclub after the alcohol has been consumed. Mr Morris also referred to a practice of end-loading, where customers from nightclubs would buy alcohol after leaving the nightclub in the early hours of the morning.
2. On the other hand, Mr Hart gave evidence that the bottleshop is used by people who finish work late at night and wish to have a bottle of wine with their dinner which may be at a restaurant or at the person's home. Mr Hart also referred to the fact that there are many visitors to the City of Melbourne and, in particular, the Russell Street/China town area, and that those visitors would wish to buy packaged liquor after 11:00pm in order to take back to their hotel rooms to consume.
3. The authorities make it clear that it is difficult to place generalised reports - such as the Allen Report and the Marsden Jacob Associates Report - in a position where they can be relevant to site specific situations such as the Exford. Further, Mr de Carlo's evidence does not go so far as to be site specific in relation to the Exford either.
4. In Nardi v Director of Liquor Licensing [2005] VCAT 323, his Honour Judge Bowman was considering an application for a packaged liquor licence by Woolworths at one of its supermarkets. His Honour made it clear that expert evidence in relation to harm minimisation needs to be treated with considerable caution. His Honour stated at paragraph 18 et eff :

The evidence of Mr Munro could be summarised as follows. Increased density of outlets leads to increased consumption of alcohol. Increased consumption leads to increased problems and abuse. Increased density of packaged liquor outlets sends the wrong message and makes packaged liquor more readily available to underage drinkers. ....

An attack was made upon the usefulness or applicability of the research material upon which Mr Munro based his evidence to the present case. However, the real problem with his evidence as a principal supporting plank of the Nardi's case seems to me to be that, to succeed, it basically must establish that increased availability leads to increased consumption which leads to increased harm. If this proposition is correct, and were taken to its logical conclusion, no further licences should be granted in this state because so to do would be conducive to or encourage the misuse or abuse of alcohol.

Despite Mr Munro's quite impressive evidence, I am not satisfied that the necessary links between increased availability, increased level of consumption, and increased harm have been established so as to produce a virtually automatic result in every instance. ....

It seems well established that the particular circumstances, site and premises should be taken into account and dealt with in a specific context - see the remarks of this Tribunal in Black and Cooke v Director of Liquor Licensing ... To draw the broader brush and argue that, virtually automatically, greater availability leads to greater consumption and consequently to greater harm, runs the risk of leading to a situation where licences would never be granted, and also runs the risk of trespassing into the area specifically excluded by reason of S.38(3)(c) of the Act.

Thus, whilst the general observations and findings of Mr Munro, based on research, are worth noting, it is the particular circumstances, sites, and premises that should be dealt with in their specific context. Those particular details and specific contexts should then be examined so as to see whether the order in relation to that licence would detract from or be detrimental to the amenity of the area, or would be conducive to or encourage the misuse or abuse of alcohol.

1. While it is clear that people may consume alcohol in the street after the same is purchased from the applicant's bottleshop, it is far from clear that the purchase of such alcohol is used for the purpose of what Mr Morris described as pre-loading, side-loading or back-loading. Drinking in the street does not necessarily amount to harmful effects of alcohol or even detriment to the community. At its highest, it is a breach of a local law.
2. It is clear that Melbourne does have many visitors, and it is important for those visitors to be served with packaged alcohol at times when they may require it. Otherwise, Melbourne may be at risk of losing its reputation of a vibrant international city.
3. The evidence in relation to the incidents that were raised by the respondent and joined party and attempted to be linked to the bottleshop do not, when analysed, in my view, appear to be very serious. A number of them related to breaches of the local law, however, very few infringement notices were issued to the people who consumed alcohol. One would have thought if the joined party wished to take the matter seriously, every person who was observed consuming alcohol in the streets of the Melbourne CBD should be issued with an infringement notice. However, quite the contrary view seems to have been taken.
4. For a hotel that has been kept under extensive surveillance for a period of almost two years, and there were only minor breaches of the law by that establishment, it would appear to me that the hotel is taking its responsibilities as a liquor supplier very seriously and has done almost all that could be expected of it in only serving customers that were entitled to be served and warning those customers about other breaches of the local laws that they should not breach.
5. I do not accept Mr Morris' submission that this bottleshop has caused the anti-social behaviour to which he referred being street violence, domestic violence, hospital admissions, vandalism and property damage, theft, public drinking, groups of people congregating and arguing in the streets and vomiting and urinating in public places. In my view, there is little or nothing to link the conduct of the bottleshop to the vices referred to by Mr Morris, perhaps save and except for street drinking. There are many licensed establishments in Melbourne and the behaviour that Mr Morris refers to is more likely to be coming from the larger nightclubs where people stay until the early hours of the morning and leave the nightclub in a drunken state. As Mr Canavan correctly stated :

The Exford Hotel bottle shop is surrounded by bars, including the bar of the Exford Hotel, restaurants (some with outdoor eating), gambling and entertainment venues. The area has high levels of pedestrian traffic and frequentation throughout the evening and well into the early hours of the morning. Evidence has been given of extensive queuing at other venues in the vicinity. The area services not only metropolitan Melbourne's 9 to 5 workers, but also very significant numbers of hospitality and entertainment employees, not to mention large numbers of tourists, who finish work after midnight and look for opportunities to relax.

1. At paragraphs 26 and 27 of Mr Morris and Mr Reid's submission, they make the point that quite apart from any of the incidents referred to, removing the one late night trading bottleshop from the Melbourne CBD would assist in the implementation of Government policy and harm minimisation from alcohol. At paragraphs 25 to 27 they state :

The evidence in this case is not just general evidence about the harmful effects of alcohol; it is also specific to the late hour trading of the bottleshop of the Exford Hotel. In this respect this case can be distinguished from previous cases before the tribunal concerning packaged liquor.

There is another very important distinguishing feature. The Director's decision to vary the licence would reduce the number of late trading bottleshops in central Melbourne from one to nil. The evidence - and logic - suggests that this will make a substantial difference to the availability of packaged alcohol - particular alcohol that may be consumed on the street and by underage drinkers.

The truth is that the Exford bottleshop is in a position to charge monopoly prices after 11:00pm. This is not the Director's complaint. But it indicates the lack of competition for packaged liquor in the central city after 11:00pm; and that the variation will have the consequence of reducing the supply of packaged liquor during such times.

1. The submission made by Mr Morris above is correct only to the extent that there are problems in Melbourne related to alcohol consumption. The submission was to some extent supported by the evidence of Mr Hart. In cross-examination, Mr Hart agreed with the proposition put to him by Mr Morris that if there were no venues selling liquor and one venue was added, such adding could increase the extent of alcohol-related harm from that venue. It should be noted, for the sake of completeness, that the premises at 242 Lygon Street, Carlton, 1.2 km from the Exford Hotel, operates until 3:00am each Saturday and Sunday morning. Further, the Carlton Hotel which sells packaged liquor through to 7:00am is somewhat different to the present premises in that the packaged liquor sold by the Carlton Hotel is generally used in the upper floors of that building which are not licensed. It would be unlikely that members of the public would enter the Carlton Hotel especially to buy packaged liquor. However, Mr Morris' submission is not supported by the evidence, particularly when the incidents have been analysed in the way Mr Canavan and Mr Bryant have done.
2. Mr Morris submitted that by reducing the hours of trade for the Exford bottleshop would go some way to implementing the policy of the Government and, in particular, the concerns by the Government about alcohol induced harm, which resulted in the amendments to the Act coming into being on 1 January 2010. In particular, the respondent and joined party relied on the policy statement appearing in the Victorian Government Gazette No S294 Friday 27 October 2006. That policy statement said :

That the grant of a licence that allows for the provision of packaged liquor from licensed premises on a 24 hour basis is contrary to the aim of minimisation of harm from the misuse and abuse of alcohol and contrary to the aim of ensuring the amenity of community life.

That the grant a licence that allows for the provision of packaged liquor from licensed premises on hours that are greater than ordinary trading hours as defined in section 3 of the Act should only be granted by the Director of Liquor Licensing if exceptional circumstances can be demonstrated by an applicant, and that in all circumstances that the extended hours for a packaged liquor licence should not extend past 12 midnight.

1. However, Mr Canavan and Mr Bryant drew my attention to the following paragraph of the statement of policy which they said made it clear that the new policy did not affect the operation of the Exford Hotel bottleshop as that was in operation prior to 27 October 2006. The paragraph that I was referred to states :

That this policy statement does not affect any licence that has been granted and is operational as at the date of the statement.

1. In my view, that last sentence quoted in relation to the policy must be given effect in this situation. That is not to say that the new provisions of the Act do not apply; they clearly do and they also must be given consideration in any balancing exercise done in relation to this application. Both parties referred me to a High Court decision of CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47. While that was a case in relation to tortious liability which has no relevance to the present, Gummow, Heydon and Crennan JJ referred to the responsibility in using alcohol. At paragraph 54 of that decision, their honours stated :

It is not against the law to drink, and to some degree it is thought in most societies - certainly our society - that on balance and subject to legislative controls public drinking, at least for those with a taste for that pastime, is beneficial. As Holmes J, writing amidst the evils of the Prohibition era, said : 'Wine has been thought good for man from the time of the Apostles until recent years'. Almost all societies reveal a propensity to resort to alcohol or some other disinhibiting substance for purposes of relaxation. Now some drinkers are afflicted by the disease of alcoholism, some have other health problems which alcohol caused or exacerbates, and some behave badly after drinking. But it is a matter of personal decision and individual responsibility how each particular drinker deals with these difficulties and dangers. Balancing the pleasures of drinking with the importance of minimising the harm that may flow to a drinker is also a matter of personal decision and individual responsibility. It is a matter more fairly to be placed on the drinker than the seller of drink. (underlining supplied).

1. It is clear from the CAL decision that the responsibility for the misuse of alcohol should be placed on the drinker rather than the seller. I do not take that to mean that the seller has no responsibility. Of course it does. However, that responsibility is the responsibility provided in the statutes and, in particular, the Act. In my view, it is quite wrong to blame the purveyor of alcohol when the alcohol that is purveyed is misused by the ultimate consumer. It may be different if the seller was able to find out or knew that the alcohol was going to be misused. In this situation, there is little or no evidence that the applicant was aware that any alcohol purchased from its bottleshop would be misused by the purchaser. Further, in reference to the respondent and joined party's concern about pre-loading, it is likely that people who intend to go to the larger nightclubs in the city of Melbourne would already be at those clubs by 11:00pm or 12:00 midnight. There was evidence given that there were a number of bottleshops in Melbourne that sold liquor until midnight. Thus, in those circumstances, it is difficult to see how limiting the applicant's bottleshop trading hours to 11:00pm would, in any way, assist the situation in regard to reducing the incidents of pre-loading. While the concept of side-loading and back-loading were mentioned, there was little evidence to show the extent of that practice in relation to this bottleshop. At this point, I accept that late closing of the bottleshop (up to 7:00am) is more beneficial to the amenity of the area than any harm that occurs from its extended hours. Further, the view expressed by Mr Kearney in sub-paragraph (i) of his recommendation in 1997 still holds true today - see paragraph 11 hereof.

1. There was evidence given on behalf of the applicant by both Dr Chau and Mr Brooker, the hotel manager, that approximately 60% of the turnover from the entire premises came from the bottleshop. And that between 50% and 60% of the bottleshop takings were taken after midnight. The witnesses thus said that if the bottleshop was forced to close at 11:00pm, it would have a serious effect on the viability of the hotel.
2. The respondent and joined party correctly stated that if the applicant was to rely on this type of economic evidence, the accounts of the hotel should have been produced and they were not.
3. At paragraphs 29 to 31 inclusive of their submission, Mr Morris and Mr Reid stated :

The evidence of the economic impact of the variation on the Exford Hotel has not been satisfactory substantiated. Detailed accounts could have been produced, but they had not been produced. The evidence that has been led is unsatisfactory in form, and in content.

In any event, the economic impact of the variation on the licensee is not, in itself, a relevant consideration. Such evidence is only relevant to the extent that it bears upon the development of a diversity of licensed facilities reflecting community expectations or the responsible development of the liquor and licensed hospitality industries [emphasis added].

The evidence does not support the conclusion that either of these two objectives of the Act will be impaired. Alternatively, it does not support the conclusion that any impairment is sufficient to outweigh the adverse impact of the late trading hours.

1. While I agree that the evidence of the applicant could have been presented differently and supported by accounts, that is not to say that I cannot be satisfied that reducing the hours of the bottleshop to 11:00pm closing would have a serious effect on the economic viability of the Exford.
2. I am satisfied that the Exford bottleshop is very busy after 11:00pm. I am also satisfied, and it was not challenged, that the Exford bottleshop charges premium price for its liquor, far in excess of the price that would be charged by a liquor shop trading in suburban Melbourne. This fact, together with the evidence that the bottleshop is extremely busy after 11:00pm, would indicate that the bottleshop is a large source of profit for the proprietor of the Exford and a restriction on its present closing hours would have a serious effect on their ultimate profit from the hotel.
3. During the hearing, I indicated to the parties that I would be grateful if they could make submissions on whether a reduction in the licensed hours of the applicant pursuant to s 29 of the Act would have serious effects on the viability and value not only of the applicant's premises but of other liquor premises throughout Victoria. Put a different way, if the respondent and joined party were to succeed in this application, mortgage institutions, who are lending licensed premises on the value of the business, would be wary of lending in the future, as an application pursuant to s 29 of the Act could vastly decrease the value of the business. Further, licensees would be reluctant to spend money on renovations and beautification of present licensed premises, because the hours that those premises are trading could be reduced.
4. In Caminiti v Victorian Taxi Directorate [1996] VICCAT 105, unreported 25 March 1996, Macnamara DP, was concerned with an application for a metropolitan hire car licence. One of his reasons for refusing the licence was that it would have an effect of diminishing the value of other such licences in Victoria which could have serious economic consequences. He said :

... Section 143 specifically requires the decision maker to give due consideration also to the interests of incumbent members of the industry. The sale agreement between Parkline and the Williamsons attributed $80,000 of the purchase price to the three metropolitan hire car licences and the special purpose vehicle licence. Mr Paul Caminiti conceded that a special purpose vehicle licence was worth less than a metropolitan hire car licence. Accordingly, implicit in that allocation is a valuation of the metropolitan hire car licences at something in excess of $20,000. In the matter Johannes Benjamin Boss Service Panel Works Pty Ltd and Norman Franklin Allen v Vincent and Frank Santoro an unreported decision of 3 July 1991, Tadgell J. in the Supreme Court considered a challenge to the decision of the authority then operating the tow truck licence system. The authority was required by the statute to act in accordance with the public interest formulated in a manner similar to the way it is formulated in Section 143 of the Transport Act. His Honour found that the licensing authority had not taken into account any relevant consideration by regarding as significant monies paid by existing licence holders for the acquisition of their licences and the previous licensee. ... Once licences become valuable assets in companies, balance sheets may be the subject of security arrangements with financiers. Their values certainly represent an important element of the stability of businesses. That value would be undermined if new licences were issued by the licensing authority without any premium. This would undermine or destroy the value which is bound up in existing licences. In considering the interests of the public on this issue, it is necessary to consider the effect of aggregation. The evidence shows that there are at present 417 metropolitan hire car licences. It is difficult to see that the issue of three more such licences would in itself, subvert the value of the existing 417; however if a view is adopted which says that no individual issue of licence can have a material affect, it would open the way for the issue of a multiplicity of new licences, which in total certainly would have a material affect upon the value of the existing licences

To permit such a thing in an already over provided market, would in my view, de-stabilise the industry by undermining the value which existing metropolitan hire car licences have. This in my view, is contrary to the public interest and outweighs the other positive elements of the applicants' proposal.

1. Mr Morris submitted that the case of Caminiti was irrelevant to the present application. He said that in cases of hire car licences and other licences such as abalone licences, it was the licence itself that permitted the carrying on of the particular activity, eg, operating a metropolitan hire car or harvesting abalone from the sea.
2. He said that liquor licences were entirely different because the liquor licence are attached to the land and, as a consequence, when a liquor licence was sold or a business mortgaged, it was the shop or premises where that liquor licence operated from that had the entitlement.
3. In my view, the distinction drawn by Mr Morris is a distinction without a difference. Clearly, a hotel without a liquor licence would be worth far less than a similar hotel with a liquor licence. By the same token, a bottleshop or supermarket with a licence would be worth considerably more than a similar premise without a licence. It necessarily follows that if the profit that is earned from a business is decreased by the removal of a liquor licence then, the value of that business will be decreased. That will, in turn, have an effect on the ability of proprietors of such a business to renew finance commitments or obtain finance in future. It would not be surprising that if s 29 was used to restrict the hours of business of licensed premises generally, the value of the business being conducted on those premises would be decreased. Even the possibility of a s29 application such as this being made, would make it far more difficult for any operator or prospective operator of a licensed premises to obtain finance or to obtain finance at the level at which they could be obtained at the moment. Put in another way, lenders would be "scared off".
4. It necessarily follows that if the scenario, which I have outlined above, were to happen, there could be serious effects on the liquor industry in Victoria. Many liquor purveyors, who are providing a positive benefit to their communities, may be forced out of business or the viability of their business would be reduced to such an extent that the facilities which they provide the public would also be reduced.
5. I was told that this was only the second application made by the Police in relation to restriction of a licence pursuant to s 29 of the Act. The other application was settled before it was heard. Therefore, it is likely that if the applicant was to fail in this application, prospective lenders would make obtaining finance for liquor businesses more difficult and more restrictive and, as a result, the amenities provided by purveyors of liquor may be reduced.
6. Therefore, the success of the respondent and joined party's action herein, could have a serious effect on the amenity of liquor outlets in Victoria. To use the words of s 4(1)(b), it would detrimentally affect the facilitation of "the development of a diversity of licensed facilities reflecting community expectations". It would also have an effect on the objects referred to in s 4(1)(c) in that it would detrimentally contribute to the responsible development of the liquor and licensed hospitality industries.
7. The view that I have expressed above in relation to an application made by the police pursuant to s 29 of the Act must be looked at in the whole circumstances of the situation of the licensed premises. Economic considerations are not by themselves a complete defence to a s 29 request by the police in all circumstances. However, they are matters to be taken into account and given such weight as is appropriate in all the circumstances of the proceeding.
8. Taking these matters into account, I find that to refuse the applicant's application would have a serious detrimental effect on the economic viability not only of the applicant but of many other liquor outlets in Victoria.
9. This is not to say of course that those in the liquor industry that operate contrary to the Act or in a way that is contrary to the harm minimisation provisions of the Act cannot be dealt with. Clearly, the provisions of Part 6 Division 1 of the Act are applicable. Further, if the legislature desires to restrict particular hours of business of liquor premises, it may do so by regulation or by amendment of the Act. It is noted that there has been a restriction for approximately 2 years on granting late night venues a licence to operate after 1:00am except in special circumstances.

1. Taking into account all the matters that I have referred to above, and in balancing the harm or detriment with the benefits of the late night trading, I have come to the conclusion that the applicant should be able to continue with late night trading until 7:00am in its bottleshop.