SOUTH EASTERN HOTEL & ORS v WOOLIES LIQUOR STORES No. SCGRG-98-338 Judgment No. S6819 [1998] SASC 6819

(3) A reference to licensed premises already existing in a locality extends to premises in that locality, or premises proposed for that locality, in respect of which a licence is to be granted, or to which a licence is to be removed, under a certificate of approval."

The court considered the meaning of this section in Woolies Liquor Stores v Carlton Investments & Ors (unreported, 15 May 1998, Judgment No S6682). The provisions now found in s58 have a long legislative and forensic history. The following passage from my judgment, a judgment concurred in by the other two members of the court, sets out my view of the meaning of s58:

"The fact that Parliament has enacted different provisions dealing with the grant of a hotel licence and the grant of a retail liquor merchant's licence indicates that a different test was intended. Otherwise, there would be no reason for the enactment of two provisions.

The legislative history that I have set out above, suggests that the intention of Parliament was that the test for the grant of a retail liquor merchant's licence should be a stricter one than the test for the grant of a hotel licence. Although the hotel licence no longer occupies the central position that it once did in the legislation, and although the favoured position given to the holder of such a licence has been eroded, I consider it is likely that Parliament intended that there be some protection for the holder of a hotel licence against the powerful competition that can be provided by the holder of a retail liquor merchant's licence. That is the only reason that I can think of for Parliament maintaining a different test for the grant of a retail liquor merchant's licence.

However, there remains the question of whether the test is the same as before, or whether it is now less stringent.

The language used by Parliament suggests that, as before, the focus of s58(2) is upon the demand for liquor and the availability of liquor, whereas the focus of s58(1) is on the needs generally of the public in the locality, although of course those needs are to be considered in relation to the facilities that might be provided by a hotel licence. That broader focus in relation to a hotel licence is apt to enable more emphasis to be given to the wishes and preferences of the public in relation to matters of style of premises, the availability of choice and of a variety of outlets, matters of preference, matters of convenience and so on. The language used in relation to a retail liquor merchant's licence focuses attention more closely on the demand for and availability of liquor. Matters of the type just adverted to by me are not wholly irrelevant in that context. However, they are to be given less weight because the court is concerned with the demand for liquor and its availability, and not with the wider concept of the needs of the public.

The other feature of s58(2) is that the court must consider whether the existing premises '... do not adequately cater for the public demand for liquor ...'. Those words suggest to me that the court is required to consider the accessibility of the existing premises to the public in the locality (matters such as distance, forms of transport available, time taken to get to existing premises and so on); the availability at the existing premises of the range of liquor demanded by the public, the standard of the existing premises and of the service provided there, and the existing shopping patterns and habits of the public to the extent that they bear on the accessibility of the existing premises. There may well be other matters, but these seem to me to be the matters most relevant in considering whether existing premises adequately cater for the public demand for liquor.

However, in deciding whether the existing premises adequately cater for the public demand, the court has to apply some standard. None is indicated by the legislation. I consider that Parliament must have had in mind that the court would consider contemporary standards, using the knowledge and experience that the Licensing Court gains through its work as a specialist court dealing with the liquor industry. By this I mean that the Licensing Court is to apply contemporary standards in deciding what distances one could reasonably expect customers to travel to obtain liquor, in deciding how much time one could reasonably expect them to spend getting to a liquor outlet, in deciding the amount of inconvenience that one could expect them to accept if, as will often be the case, a liquor outlet is not available at the place where they prefer to do most of their shopping, and in deciding the range of liquor and level of service that it is reasonable for them to expect. The court is required to determine not just what the public in the relevant locality want. If, whatever the public may want, there are existing premises that are capable of catering for the public demand for liquor, the court must decide, by reference to contemporary standards, whether, if the public are to satisfy their demand at those premises, it can be said that their demand is adequately catered for.

As was the case under s22(2) of the Licensing Act 1967, and s38(1) of the 1985 Act, mere inconvenience in getting liquor from an existing outlet is not enough to justify the grant of a new licence. Nor is a mere preference to shop at a particular place, or a preference for "one-stop shopping" enough to establish that existing premises do not adequately cater for the public demand. The fact that the public wish to purchase liquor at a proposed new outlet, or would prefer to be able to purchase their liquor at that outlet, does not of itself establish that existing premises do not adequately cater for the public demand. The court is required to assess that wish or preference by reference to contemporary standards to determine whether, if the demand for liquor is to be met at existing premises, it can be said that those premises do adequately cater for the public demand.

It is tempting to look for synonyms and substitutes for the statutory standard that existing premises do not adequately cater for the public demand. It is better to resist that temptation, because in the end it is the statutory test that must be applied. In practice, I expect that the outcome in a given case will be pretty much the same as the outcome would have been under the previous legislation. In particular, the matters referred to by King CJ in Lovell v New World Supermarket (1990) 53 SASR 53 at 55-56 will continue to be relevant matters for consideration. But, for better or worse Parliament has changed the statutory language, and it is that language that must be applied."

No challenge was made to that view in the present case.

In Woolies Liquor Stores v Carlton Investments & Ors (supra), I concluded that the Judge of the Licensing Court had taken the correct approach to the meaning of s58. In the judgment under appeal, the judge said that he had taken the same approach as the approach that he took in Woolies Liquor Stores v Carlton Investments & Ors (supra). It follows that the judge must be taken to have directed himself correctly. If there is an error, it must be found in the application of those principles to the facts.

I will come to the facts in a moment. The decision of the court contains very few findings of fact. This has made the task of this Court difficult.

The Licensing Court is a specialist court. Its findings of fact are entitled to considerable weight, especially when they involve an assessment, as they do in this case, of the degree of difficulty experienced in getting liquor supplies, and when they involve an application of contemporary standards. The judge has given his decision, but has made no findings that establish the facts upon which those decisions are made. Nor has he addressed the various factual issues identified by me as arising under s58(2). I appreciate that at times it is difficult to reduce these matters to clear statements of fact. But more should be done than has been done by the judge in this case.

By reading substantial portions of the evidence that the judge apparently accepted, I have been able to establish to my satisfaction the basic facts upon which the judge had reached his decision. I have also had to make use of some general knowledge that I have of Mt Gambier. It is not satisfactory that this Court should have to do that. Had the basic facts not been fairly straightforward, it would not have been possible to undertake the exercise that I have undertaken.

There is another aspect to this. The failure to make clear findings can give rise to appeals that might well not have been instituted had clear findings been made.

For those reasons, it is important that in future the Licensing Court make findings of fact that provide a context for its conclusions on the issues that arise under a provision like s58.

The judge made no findings at all about the city of Mt Gambier and its shopping facilities. Not being bound by the rules of evidence, the judge is quite entitled to make use of knowledge that he has of the locality in which proposed licensed premises are situated. However, the findings based upon that knowledge should be stated. As well, some description of the locality is helpful, if only to ensure that a court on appeal has adequate information about the locality. And so I have had to draw on my own general knowledge and on the evidence, to set the scene. In the present case I am prepared to do so, but a case could easily arise in which that would not have been possible.

Mt Gambier is a city with a population of about 23,000 people. According to one of the witnesses, its population has been static since about 1991. Mt Gambier services many of the people in the smaller towns and rural areas that surround it.

Like many country towns in Australia, it has a central main street, along which or close to which may be found most of the retail outlets from which the residents satisfy their shopping needs. Again, like most country towns, history has to some extent overtaken the main street, and large supermarkets, surrounded by specialty shops, have been developed in Mt Gambier, but not all of them front onto the main street. The main street, Commercial Street West and Commercial Street East, runs in an east-west direction through the centre of Mt Gambier. The two parts of the main street are separated by Penola Road, which runs in a north-south direction. The intersection of Penola Road and Commercial Street can be regarded as the very centre of Mt Gambier. The residential areas of Mt Gambier encircle this centre point.

With one exception, all of the licensed premises treated as relevant to this case are on, or close to, Commercial Street. The one exception is a tavern, in the western part of Mt Gambier, but on the evidence before the judge those premises are of little relevance to the case.

The judge heard evidence relating to three hotels on Commercial Street West, one on Commercial Street East, and one just south of Commercial Street. This being a case about a retail liquor merchant's licence, the focus was upon the sale of alcohol for consumption off the premises. More precisely, the focus was upon the availability of a reasonable range of liquor in premises that meet contemporary standards. That means premises that provide a good range of liquor displayed in a manner that enables customers to inspect the liquor, and displayed in surroundings which are attractive to a broad range of customers.

On the judge's findings, which I have no reason to doubt, most of the hotels had only a drive-in bottle department, or a "walk-in" with a limited range of liquor and not offering the sort of surroundings that many people seek these days. These premises are not to be disregarded entirely. Everyday experience suggests that, except for the most fastidious, such premises are capable of meeting certain needs, at least the need for bottled beer and other regularly purchased types of alcohol that do not involve the making of a choice. However, subject to that, they can be put to one side.

The judge found that the Mt Gambier Hotel, which is at the intersection of Penola Road and Commercial Street, provides an adequate range of liquor and, although he does not say clearly, in surroundings that meet contemporary standards. He made a similar finding in relation to the retail store known as "Fidler & Webb's". The evidence indicates that those premises offer a good range of liquor in premises that well and truly meet contemporary standards.

Judging by the map that was tendered before the judge, and again no findings were made about this, Fidler & Webb is about 200 metres east of the Mt Gambier Hotel. They are on opposite sides of Commercial Street.

The judge made no findings about the location of the applicant's premises. The map indicates that they are about 500 metres east of Fidler & Webb.

The applicant seeks to establish a retail liquor store in an existing Woolworths Supermarket at Mt Gambier. Judging by the evidence, and by photographs tendered before the judge, the supermarket is a large modern supermarket, that offers a wide range of products. It is of a type with which we are all familiar. As part of the complex there are four or five specialty shops, although at the time of the hearing the only one of them that was occupied was used as a pharmacy. The premises are surrounded by a large carpark, with spaces for about 240 cars. I am prepared to assume that the premises are of a high standard, and are of a type which would be attractive to many people. The evidence indicates that they are well patronised.

However, it is relevant to note that the Woolworths complex does not contain premises that many people would need to visit for other purposes. Merely by way of example, there is no post office, no bank, no newsagent, no outlet for clothing or for footwear, no hairdresser. While many of the witnesses gave evidence that they do all of their shopping for foodstuffs at Woolworths, it must be the case that from time to time they visit other retail outlets in Mt Gambier to meet other weekly and less frequent needs.

Finally, I mention the South Eastern Hotel, which is to be found a further 800 metres or so east of the applicant's site. Some of the witnesses said in evidence that they occasionally obtain their liquor supplies at that hotel. My impression is that it would take a matter of only minutes to drive from the applicant's site to the South Eastern Hotel, and as I understand it there is a satisfactory drive-in bottle department at that hotel. It is fair to say that the South Eastern Hotel is beyond the main shopping area of Mt Gambier.

About 200 metres west of Penola Road, and a little south of Commercial Street West, is a large Coles Supermarket. Nearby is a Bi-Lo Supermarket, a K-Mart Discount Department Store and about 30 speciality shops. My impression is that this is a fairly large complex. The evidence indicates that it is well patronised. It must be used by a lot of Mt Gambier residents. There are carparking areas associated with this complex.

There is a Foodland Supermarket, and my impression is it is somewhat smaller than the other supermarkets mentioned, at the rear of Fidler & Webb. Also at the rear of Fidler & Webb is a parking area, accommodating between 40 and 50 cars. This area is used by patrons of the liquor store, but also by patrons of Foodland and other adjacent stores.

There was evidence about a carparking area at the rear of the Mt Gambier Hotel. The effect of that evidence is that access to that parking area is not particularly good, and that the carpark is not a large one.

Evidence about carparking was given by Mr Hutchinson, a town planning consultant. The evidence was very general. Mr Hutchinson had some knowledge of Mt Gambier, but appears to have carried out no particular surveys or studies for the purpose of the case. He said that the available carparking in central Mt Gambier is somewhat limited. He said that quite often it is difficult to find a space to park a car in Commercial Street near the centre of Mt Gambier. He also said that the carpark behind Fidler & Webb is often quite crowded, and not uncommonly full. He said that the carpark was not well laid out, and that movement within it was not easy. He said that the parking area at the rear of the Mt Gambier Hotel was poorly laid out.

The judge said nothing about his evidence, but it appears likely that he accepted the broad thrust of it.

As I have already mentioned, the judge found that for the purposes of this application the most relevant facilities were the facilities offered at the Mt Gambier Hotel and at Fidler & Webb. I will refer to them on occasions as the objectors' premises, although there were other objectors. He said that Fidler & Webb was "a good ... contemporary bottle shop with a good range ...". He said that his assessment of the Mt Gambier Hotel was similar, although the range was not quite as good.

The applicant advanced a claim that there was an inadequate range of liquor available in Mt Gambier. The judge rejected that claim. The applicant advanced a claim that the price of liquor in Mt Gambier was higher than it should be, and that this tended to prove "... an inadequate catering for public demand". The judge rejected that claim.

The applicant's case was heavily based upon a demand for "one-stop shopping". The term is somewhat misleading. It refers to a desire to purchase liquor when making other purchases. In the case of the applicant's premises, that can only mean a desire to purchase liquor when purchasing food and the other items that can be purchased at the Woolworths Supermarket. As the facts indicate, residents of Mt Gambier could not meet all of their regular shopping needs at Woolworths. Of necessity, they would visit other retail outlets in the town from time to time. The judge made no finding about this, or about the frequency with which they would do so. Be that as it may, that was the fundamental foundation upon which the applicant's case rested.

The judge heard a number of witnesses. Some of them expressed a desire to purchase liquor when doing their shopping at Woolworths. Others, called by the objectors, said that this was not of any concern to them. Not surprisingly, the judge took the view that each group of witnesses was expressing a reasonable point of view. It is not a question of right or wrong. The judge has to assess the public demand, and the reasonableness of that demand. The judge made the following finding:

"It follows that I must view the applicant's witnesses as representing a quite reasonable and significant demand for one-stop shopping and this is worthy of some weight in deciding the question of adequacy or otherwise of liquor catering in Mt Gambier."

Unfortunately, as I have mentioned, the judge does not refer at all to the question of the extent to which the relevant witnesses would, in any event, find it necessary to patronise other retail outlets in Mt Gambier, the frequency with which they would do so, and the opportunities that that would present to make purchases of liquor at other licensed premises.

The other foundation of the applicant's case was a claim that it is difficult to park a car near Fidler & Webb or near the Mt Gambier Hotel, and that that gave rise to a significant difficulty in the obtaining of liquor from those premises. I have read the evidence of the applicant's witnesses, and it is true that most of them made this complaint. A different view was expressed by the witnesses called for the objector, but once again it is not a matter of accepting one point of view and rejecting the other. It is clear that the judge accepted, by and large, that the witnesses for the applicant did regard parking at the premises referred to as a problem. He said:

"It beggars belief that so many of the need witnesses who complain of parking are quite wrong. It beggars belief that the contra need people [witnesses called by the objector] are likewise wholly wrong."

"I think it can be fairly resolved by saying (and having in mind the differing views and wants of the two groups) that there is some difficulty in getting a park at different times and such a difficulty weighs heavily in the minds of the need witnesses. I cannot say that they are being unreasonable in this respect."

I take that to be a finding that, as a matter of fact, it is not uncommon for a person to have difficulty in obtaining parking reasonably close to Fidler & Webb and the Mt Gambier Hotel. I take the finding to relate to the times at which people tend to shop for food and for liquor. I take the judge's conclusion also to represent a finding that while that difficulty does not trouble all of the witnesses called before him, it is something which troubles and inconveniences the witnesses who were called by the applicant. There is an element of perception in this, of course. But what the judge has said is that he accepts the point of view expressed by these witnesses as reasonable.

Having made the two findings just referred to, the judge then concluded:

"In the end, weighing the factors identified and my conclusions thereon (and having in mind all the submissions) I have come to a position of finding, not without hesitation but with sufficient confidence, that the applicant has met its onus."

The appellant submits that the judge must have misapplied, or merely paid lip-service to, the requirements to be met under s58(2).

It is submitted that having regard to the range of goods available at the applicant's premises, it is misleading to talk of "one-stop shopping" at those premises. It is submitted that for one reason or another the witnesses called by the applicant would need to patronise other retail outlets in Mt Gambier. Bearing that in mind, and bearing in mind the layout of the city, it would not be more than a minor inconvenience to purchase liquor at the objectors' premises in the course of one of those other trips. As well, it was submitted that in any event the distance involved in travelling from the applicant's premises to the objectors' premises, even if a special trip were made, could not be regarded as more than a minor inconvenience.

On my understanding of the evidence, there is a good deal of force in that submission. That is not to say that the requirements of s58(2) could not be found to be met. But it is less than one kilometre from the applicant's premises to the Mt Gambier Hotel. The most direct route to the Mt Gambier Hotel involves travelling past Fidler & Webb. On my reading of the evidence, many of the people of whom the applicant's witnesses were representative must, reasonably often, make trips by car to other retail outlets in Mt Gambier.

The mere wish to purchase liquor at the applicant's premises, while shopping there for other items, does not establish that the existing premises do not adequately cater for the public demand for liquor. The degree of difficulty in getting liquor at the objectors' premises has to be assessed, and that difficulty has to be assessed by reference to contemporary standards. In my opinion, having regard to contemporary standards, it could not be said that the effort involved in travelling to the objectors' premises, even if a special trip were to be made, is such that those premises could not be said to cater adequately for the public demand for liquor expressed by people shopping at the applicant's premises.

In my opinion the judge's decision to grant the licence could be right only if, in his opinion, the difficulty in obtaining a car park reasonably close to the objectors' premises gives rise to such inconvenience in obtaining liquor there that, applying contemporary standards, the demands of those who shop at the applicant's premises and wish to purchase liquor there, is not adequately catered for. This is something that has to be weighed and assessed by the Licensing Court. It is not a matter of simply acceding to complaints and dissatisfaction voiced by witnesses, however genuinely the complaints and dissatisfaction may be expressed.

I have no doubt that the judge understood this latter point. I am satisfied that the judge, in his briefly expressed findings, intended to find that a substantial number of people regarded it as a real inconvenience to have to purchase their liquor at the objectors' premises. I am satisfied that the judge intended to find that the parking difficulties experienced at those premises were such that their complaint was a reasonable one.

But more than that is required. The applicant's licence could be granted only if the judge were satisfied that the difficulty and inconvenience involved in obtaining liquor at the objectors' premises, taking account of shopping patterns and the habits of people concerned, were sufficiently great to say that those premises do not adequately cater for the public demand for liquor.

It may be that this is what the judge intended to find. But that involves more than a finding that the people who complained about the difficulty in parking at the objectors' premises are not being unreasonable. The judge had to consider the alternatives available to them, such as purchasing liquor in the course of other shopping trips that would be made in any event. He had to consider the degree of the difficulty in obtaining car parking near the objectors' premises. Taking these and other matters into account, he had to consider whether the difficulty in obtaining liquor at the objectors' premises was more than was acceptable having regard to contemporary standards.

I must say that I regard the case as borderline. The distance from the applicant's premises to the objectors' premises is not great. All of us put up with parking difficulties at times when shopping. Such difficulties are a feature of our society. I do not mean to say that a finding in favour of the applicant, on the evidence, could not be supported. I mean only that the case is not a strong one. The judge himself, in the final finding that I set out above, appears to acknowledge that.

If the facts were stronger, it would be easier to be satisfied that the judge had applied the correct test, and had considered all the necessary factors, despite the limited findings made.

However, when one bears in mind that the case is not a strong one, and then considers the very limited findings made, and in particular the absence of any reference to trips that would be made in any event to other retail outlets, and the absence of any assessment, of the difficulty experienced, along the lines discussed by me, I cannot be satisfied that the judge has applied the correct test.

I do not consider that this Court should simply substitute its own assessment of the adequacy with which the objectors' premises cater for the public demand. To do so would involve this Court in making findings of fact and in then making a qualitative assessment, when the judge has not done so.

I consider that the case should be remitted to the Licensing Court for further consideration, on the evidence already called, and for further findings to be made, and for a decision to be made in the light of those further findings. I wish to make it clear that I express no view on what decision should be reached by the Licensing Court. The decision, whatever it may be, will be able to be tested on appeal, if leave to appeal can be obtained.

It is unfortunate that this should have to occur. But, in my opinion, it would be unjust to the applicant to reverse the decision made, simply because the findings are incomplete. Equally, it would be unjust to the objectors, in my opinion, to assume that the judge must have made the appropriate findings, even though they have not been set out in his judgment.

For those reasons, in my opinion the appeal should be allowed, the decision of the Licensing Court granting the licence should be set aside, and the case should be remitted to the Licensing Court for further consideration, and for findings to be made and a decision to be reached upon the evidence already before the Court.

55. I agree with the orders proposed by the Chief Justice and the reasons for those orders.