WOOLIES LIQUOR STORES v SOUTH EASTERN HOTEL & ORS No. SCGRG-98-1595 Judgment No. S289 [1999] SASC 289

"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."

"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."

I was there pointing out that it was necessary for the judge to make clear findings about, and to weigh up, matters beyond the desire for one-stop shopping and the difficulty in finding a car park at or near Fidler & Webb and the Mt Gambier Hotel.

That is the context in which the matter was remitted to the Licensing Court.

The judge concluded that the difficulty in parking at Fidler & Webb and at the Mt Gambier Hotel was nothing more than inconvenience. Having regard to contemporary standards it was not, of itself, sufficient to warrant the grant of a licence.

The judge took the view that the decision in the earlier appeal required him to consider only the difficulty in obtaining car parking, and no other matter. Accordingly, he refused the application. However, at the end of his reasons he said:

"However if I am wrong in that assumption I would still say that having in mind a combination of the desire to 'one stop shop', the 'busyness' of their lives, the inconveniences suffered in taking children into a bottle shop and the inconvenient parking facilities, that, marginally, the applicant would succeed."

The judge has taken a narrow view of his task at the second hearing. The last passage from my reasons set out above makes it clear that reaching a decision involves "taking account of shopping patterns and the habits of people concerned." The Court's criticism of the judge's first decision was that he had made no findings on these and other matters.

Although the judge has taken a narrow view of his task, I consider that his decision should stand.

The desire to purchase liquor at a place where other shopping is done is, of itself, of very little significance. Granting a licence on that basis would result in a licence at each well patronised shopping centre. That approach does not accord with s58(2) of the Liquor Licensing Act 1997. On the judge's findings there are two other outlets, not far from the applicant's premises, that provide acceptable facilities. People experience some difficulty in obtaining a car park at those premises, but it amounts to no more than the sort of inconvenience that we all encounter from time to time. There is still no finding by the judge that the occasions when the applicant's witnesses satisfy shopping needs, not met at the Woolworths complex, do not present reasonable opportunities to buy liquor from other outlets. As well, it has to be borne in mind that driving from the Woolworths complex to Fidler & Webb or to the Mt Gambier Hotel would take only a few minutes. The matters mentioned by the judge in the concluding part of his reasons are not sufficient, in this context, to justify the grant of the licence. I have already dealt with one-stop shopping. The busyness of witnesses and the inconvenience of taking children into a bottle shop is no more than another aspect of the same point. These matters merely explain why the witnesses would prefer to buy their liquor at the Woolworths complex. They do not establish that the difficulty in obtaining liquor at other licensed premises in Mt Gambier, taking account of shopping patterns, is more than is acceptable having regard to contemporary standards.

15. DUGGAN J. In my view the appeal should be dismissed for the reasons given by the Chief Justice.

16. DEBELLE J. I agree that the appeal should be dismissed for the reasons given by the Chief Justice.