PROSSER AUTOMOTIVE ENGINEERS PTY LTD (ACN 008 775 068)

Liquor law - Licensing - Appeal against decision of Liquor Licensing Court Judge granting the respondent a liquor store licence - Whether Liquor Licensing Court Judge applied the proper test established by s 38(2b) of the Liquor Licensing Act 1988 - Whether sufficient evidence existed to support the Judge's conclusion that a licence should be granted to the respondent - Appeal dismissed

First Respondent : Mr W S Martin QC & Mr G D Crocket

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

re Coles Myer Ltd, unreported; FCt SCt of WA; Library No 8267; 28 May 1990

Jerford Nominees Pty Ltd & Ors v Pearbrook Holdings Pty Ltd, unreported; FCt SCt of WA; Library No 930639; 25 November 1993

Lincoln Bottle Shop Pty Ltd v Hamden Hotel Pty Ltd & Ors (No 2) (1981) 28 SASR 458

Liquorland (Australia) Pty Ltd v Austie Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 980601; 19 October 1998

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

Lovell v New World Supermarket Pty Ltd & Anor (1990) 53 SASR 53

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

Pollock v Wellington (1996) 15 WAR 1

Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370

South Eastern Hotel Pty Ltd & Ors v Woolies Liquor Stores Pty Ltd (1998) 71 SASR 402

Teo v Minister for Immigration and Ethnic Affairs [1994] FCA 1422; (1994) 35 ALD 242

Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278

Woolies Liquor Stores Pty Ltd v Carleton Investments Pty Ltd & Ors, unreported; FCt SCt of SA; BC9801807; 15 May 1998

Woolworths (WA) Ltd v Liquorland (Australia) Pty Ltd & Ors, unreported; FCt SCt of WA; Library No 940553; 7 October 1994

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Ipp J. For those reasons, with which I am in agreement, I would dismiss this appeal.

2 IPP J: This is an appeal from a decision of the Liquor Licensing Court of Western Australia by which the court granted to the respondent a liquor store licence for premises in Eaton. The appellant is the licensee of the Eaton Bottle Shop, a liquor store in Eaton, and was an objector in the proceedings before the Liquor Licensing Court.

3 The appellant raised, in effect, two principal grounds of appeal. First, it was said that the learned Liquor Licensing Court Judge failed to apply the correct test in determining whether a liquor store licence should be granted to the respondent. Secondly, it was said that there was no evidence on which the learned Judge could reasonably rely in finding that the reasonable requirements of the public for liquor in the affected area could not be provided for by licensed premises already existing in that area.

4 I turn to the first ground of appeal. In Liquorland (Australia) Pty Ltd v Austie Nominees Pty Ltd (1999) 20 WAR 405 Anderson J (with whom Pidgeon and Wallwork JJ agreed) stated that s 38(2b) of the Liquor Licensing Act 1988 (which was introduced by Act No. 12 of 1998 in May 1998) was not concerned "with the requirements of the public as to matters of taste, convenience, shopping habits, shopping preferences and the like, but is concerned with the requirements of the public for liquor itself". His Honour said (at 415):

"I think that, on the proper construction of s 38, an applicant for a liquor store licence is required by subs (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.

There are still questions of degree about which value judgments must be made. It remains a question for judgment in every case whether the licensing authority ought to be satisfied that the 'requirements ... for liquor and related services', in this narrower sense, 'cannot' be provided for by licensed premises already existing in the affected area."

In Liquorland (Australia) Pty Ltd v Austie Nominees Pty Ltd Anderson J considered that the learned Liquor Licensing Court Judge, in error, had done no more than apply the test in s 38(1) as it was expounded prior to the legislative introduction of s 38(2b); that is, he had failed to apply the test in s 38(2b).

5 Counsel for the appellant submitted that the learned Liquor Licensing Court Judge had made the same mistake in the present case as was made in Liquorland (Australia) Pty Ltd v Austie Nominees Pty Ltd. In my view, however, that submission is without substance. True it is that his Honour in fact proceeded to consider whether the respondent had first satisfied the test under s 38(1). As Anderson J pointed out in Liquorland (Australia) Pty Ltd v Austie Nominees Pty Ltd (at 415), that was unnecessary. As "subs (2b) provides for a test that is both different from and more stringent than the test under s 38(1)", it is unnecessary to consider whether the test provided for by s 38(1) has been satisfied. The learned liquor Licensing Court Judge, however, expressly addressed the need to make appropriate findings under s 38(2b). He stated:

"The onus is upon [the respondent] to establish on the balance of probabilities that the reasonable requirements of the public for liquor and related services in the affected area cannot be provided for by a licensed premises already existing in that area, pursuant to s 38(2b)(a) of the Act."

6 His Honour thereupon embarked on an inquiry to ascertain whether the appellant had discharged that onus. He found that the evidence established that

"the current existing population of this part of the affected area has a subjective requirement for a second liquor store in this part of the affected area".

"It is then necessary to determine whether the subjective requirements of the public in this part of the affected [sic - area] are objectively reasonable."

"In the light of the evidence of the growth and continuing growth of this part of the affected area, I am of the opinion that they are objectively reasonable because the grant of a further licence will offer further choice and convenience to the section of the public of this affected area which resides in the suburb of Eaton."

The learned Judge then went on to determine whether it had been established that "the licensed premises already existing in the affected area cannot provide for the reasonable requirements of the public for liquor and related services in the affected area" and proceeded:

"In my opinion, only the Eaton Bottle Shop and Liquorland Australind require consideration in this regard. The other premises do not offer a wide range of packaged liquor to the public. Liquorland Australind is some six to eight minutes by motor vehicle from the proposed premises and in the light of the proposed Eaton Fair Shopping Centre, I do not think that it is reasonable to expect customers of that shopping centre to travel such a distance for packaged liquor. I find that the Eaton Bottle Shop is within close proximity of the proposed premises. Given the size of the Eaton Bottle Shop premises, I am of the opinion that it cannot provide for the reasonable requirements for packaged liquor of the existing residents of Eaton and their likely increasing numbers in the foreseeable future.

At the same time, given the increase in population which has occurred recently and is likely to continue, I do not consider that the financial impact on the Eaton Bottle Shop will be such that it is in the public interest to refuse a further grant."

7 The approach underlying the above-quoted remarks is in accord with s 38(2b). The learned Judge did not commit the same error as was made in Liquorland (Australia) Pty Ltd v Austie Nominees Pty Ltd. His Honour conducted a separate inquiry as required by s 38(2b).

8 The second argument raised by counsel for the appellant under the first ground was that the learned Judge did not address each of the elements referred to by Anderson J in Liquorland (Australia) Pty Ltd v Austie Nominees Pty Ltd in considering whether it had been established that the reasonable requirements of the public for liquor and related services cannot be provided for in the affected area by licensed premises already existing in the area. That is to say, it was submitted that the learned Judge should have addressed, expressly, questions whether those requirements "cannot be provided for at all", "cannot be provided for without occasioning substantial difficulty", or "cannot be provided for without occasioning 'substantial inconvenience' to the relevant public".

9 Although his Honour did not refer specifically to these elements, in my view it was unnecessary for him to do so. It is quite plain, in the particular circumstances of this case, that his Honour found that the reasonable requirements of the public cannot be provided for by existing licensed premises at all. This is the inevitable conclusion that follows from the finding that, due to the small size of the appellant's bottle shop, "it cannot provide for the reasonable requirements for packaged liquor of the existing residents of Eaton and their likely increasing numbers in the foreseeable future". In my opinion, the learned Judge's reasons reveal no error in his application of s 38(2b).

10 I turn now to the second ground of appeal. There was ample evidence from a body of witnesses that they considered that the appellant's shop was small and "cramped". In summary, the gist of their evidence was that the consequence of the smallness in size of the appellant's shop was that it was unable to carry a large enough range of packaged liquor, particularly wines, to satisfy their requirements. Many witnesses stated that in consequence they would drive to Bunbury to purchase their liquor supplies. Additionally, there was evidence to the effect that the affected area would continue to grow and that the number of residents of Eaton would increase significantly in future. Counsel for the appellant criticised the quality of that evidence, but this argument, in essence, went to weight and was not open to the appellant. An argument in these terms is not that there is "no evidence", but that the evidence was inadequate. An argument as to the weight of the evidence does not give rise to an appeal "upon a question of law" (as required by s 28(2) of the Act). In my view, there was evidence on which the learned Judge was entitled to make the findings that he did, and this disposes of the second ground of appeal.

11 I should say that no challenge was made to the adequacy of his Honour's reasons. For that reason, I make no comment upon that issue.

12 In the circumstances, I would dismiss the appeal.

13 ANDERSON J: I have had the advantage of reading in draft the judgment of Ipp J and I entirely agree with it and with the orders proposed. There is nothing I wish to add.