BEAN v DJUKIC and ANOR [1997] NSWCA 43

BEAN v DJUKIC and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, BEAZLEY and STEIN JJA 24 October 1997, 5 December 1997

[1997] NSWCA 43

Liquor Act — application for removal of licence within neighbourhood, meaning of 'public interest', relationship between s45(2) and s57(4) Liquor Act

The appellants argued that Dowd J had misconstrued the test for removal — the factors to be taken into account in determining the public interest — as set out by the High Court in O'Sullivan v Farrer.

The appellant lodged an application for removal of an 'off-licence (retail)' from one premises to another in Bathurst, within what was acknowledged by the parties to be the same neighbourhood. The respondent, a competitor, objected to the removal but the Licensing Court, after weighing the convenience of the patrons in the current location with those in the proposed new location, permitted the removal. On appeal to the Supreme Court, Dowd J held that the Licensing Court had erred in law and made an order which refused the application for removal.

On appeal:

Held:

The Licensing Court's judgment allowing removal of the licence properly took into account as matters of public interest, the relative convenience of users of the licence in its current and proposed locations. The learned magistrates' decision, taken as a whole, correctly applied the test in O'Sullivan v Farrer. The decision of Dowd J

incorrectly interpreted the effect of s45(2) and s57(4) Liquor Act as excluding consideration of convenience.

O'Sullivan v Farrer (HCA) (1989) 168 CLR 270 applied O'Sullivan v Farrer (C of A) (1988) 13 NSWLR 562 considered.

Gleeson CJ I have had the benefit of reading in draft form the reasons for judgment of Stein JA, with which I agree.

The issue in the appeal ultimately turns upon the meaning to be attributed to one or two sentences in the joint reasons for judgment of the Licensing Magistrates. Dowd J understood them to have a meaning which was inconsistent with the decision of the High Court in O'Sullivan v Farrer (1989) 168 CLR 210 and, accordingly, concluded that the Licensing Magistrates had misdirected themselves. I have been puzzled as to what the sentences mean, and can understand why Dowd J interpreted them as he did. However, I have come to the conclusion that they can, and should, be taken to have a different meaning.