O'Sullivan v Farrer [1989] HCA 61

High Court of Australia Mason C.J. Brennan, Dawson, Toohey and Gaudron JJ. O'Sullivan v Farrer [1989] HCA 61

ORDER Appeal allowed with costs. Set aside the order of the Court of Appeal of the Supreme Court of New South Wales and in lieu thereof order that the appeal to that Court be allowed with costs. Set aside orders 4, 5 and 6 of Yeldham J. and in lieu thereof order that the appeal by Ronald James Farrer be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 7 Mason C.J.,Brennan, Dawson and Gaudron JJ.

This appeal arises out of an application for the removal of an off-licence to sell liquor by retail ("an off-licence (retail)") from premises in a small shopping centre in Progress Road, Mount Hutton, New South Wales, to premises in a larger shopping centre in Wilson Road, Mount Hutton. The Wilson Road premises are close to an hotel which has a drive-in bottle shop. The off-licence is presently held by Mr. Farrer ("the first respondent") on behalf of Warehouse Markets Pty. Ltd.

The application elicited a number of objections, including one from Mrs. O'Sullivan ("the appellant"). Mr. C. R. Brahe L.M., Chairman of the Licensing Court of New South Wales, held that none of the objections had been made good and granted the application. On appeal to the Licensing Court constituted in accordance with s. 10 of the Liquor Act 1982 N.S.W. ("the Act"), it was held by majority (Mr. K. G. Hammond L.M. and Mr. J. L. Swanson L.M.) that no ground of objection had been made good but that the application should be refused in the exercise of discretion on the ground that "the public interest would be the better served by the retention of the off-licence (retail) in Progress Road, Mount Hutton, rather than permitting its removal to a site cheek by jowl with an existing hotel providing adequate packaged liquor facilities". The third member of the Licensing Court, Mr. P. G. Harvey L.M., was of the view that an objection under s. 45(1)(c) of the Act had been made good and that the application should on that account be refused.