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. The reasons for judgment of the Licensing Magistrates dealt with evidence, obviously considered to be relevant, concerning the inconvenience that would be caused to some people if the licence in question were moved from Keppel Street to the Bathurst City Shopping Centre. Having reviewed that evidence, and having considered evidence about the advantages, in terms of convenience to other people, of moving the licence to the Bathurst City Shopping Centre, the Licensing Magistrates expressed their ultimate conclusion in a paragraph beginning and ending as follows: 2 UNREPORTED JUDGMENTS "In conclusion we are satisfied, from the evidence, that the removal of the licence to the proposed site would provide a greater convenience to the substantial majority of the public of Bathurst, than recourse to Macs Liquor Store in its existing site. Any inconvenience caused those in the neighbourhood who would prefer to continue to purchase their liquor in Keppel Street is not such to determine the What is of more significance in this case is the large patronage of Bathurst City Shopping Centre having regard to the large population of the neighbourhood, the large customer count of Woolworths Supermarket and the fact that the centre is designed and operates as a district shopping centre. We are satisfied that it is the focal centre of Bathurst and is surrounded by other retail and business outlets which would attract the bulk of the public. Hence we are satisfied that the general public amenity and convenience would not be harmed by the removal of the licence at Keppel Street to the proposed site." All that is perfectly orthodox. It is consistent with the way the case had been conducted, and with the principles enunciated in O' Sullivan v Farrer. If nothing more had been said, there could have been no complaint. The problem arises because more was said. In between the two portions of the paragraph set out above there appeared the following: "But in any event, as intimated above, 'needs' is not relevant to this determination. General public amenity and convenience must mean something other than the competing needs of those who reside in or come to the neighbourhood of the premises on a regular basis." Part of the problem may have arisen because the shorthand expression "needs" might be understood by different people to mean different things. Moreover, the second of the two sentences quoted immediately above appears to be expressed elliptically. Dowd J was persuaded that the two sentences meant that it was completely irrelevant to the question of general public amenity and convenience to have regard to the inconvenience that would be caused to some people by the proposed removal. If they meant that, the sentences would imply that a large part of what had previously been said in the reasons for judgment, including the part immediately preceding the sentences in question, was irrelevant. If, on the other hand, they meant that the mere fact that some inconvenience would be caused to some people was not determinative of the issue of general public amenity and convenience, they would be consistent with O'Sullivan v Farrer and with the general scheme of the rest of the judgment. What was actually decided in O' Sullivan v Farrer (see 168 CLR at 214 where the issue arising for determination was identified) was that the majority in the Licensing Court in that case were entitled to refuse an application for removal, within a neighbourhood, 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." Questions of general public amenity and convenience ordinarily require consideration of the convenience of particular people. The public are only a collection of individuals, who have different, and sometimes conflicting, interests and requirements. The public do not constitute an abstract entity, divorced from the individuals who go to make it up. That was the point being made by Mahoney URJ BEAN v DJUKIC and ANOR (Stein JA) 3 JA, in the passage quoted by Stein JA. I do not think that the sentences that have given rise to such debate in the present matter were intended to contradict that proposition. I agree with the orders proposed by Stein JA. Beazley JA I agree with Stein JA. Stein JA This appeal concerns the interpretation of the Liquor Act 1982 (the Act) in relation to the removal of what is known as an 'off-licence (retail)', a licence to sell liquor for consumption other than at the premises. Most people refer to them as bottle shops. The appellant Gary Bean represents Mac's Liquor, which sought permission to move its licence from 51 Keppel Street in the 'old part' of Bathurst to the town's major shopping centre, which already houses one of the city's two other off-licences. The first respondent Dushan Djukic represents Liquorland, which conducts the two other off-licences in the town which compete with the appellant. The first respondent objected to the removal application. The second respondent, the Licensing Court of NSW, has entered a submitting appearance. It is common ground that the 'old' premises and the proposed 'new' premises are within the same neighbourhood for the purposes of the Act. S45 of the Act deals with the grounds upon which objection may be taken to an application under the Act (including an application to remove a licence). The section relevantly provides: (1) Objection to the grant of an application may be taken on one or more of the following grounds: (a) that the applicant is not a fit and proper person to be the holder of a licence, (c) that, for reasons other than the grounds specified in para(a), para(al) and para(b) and subs(2) and subs(3), it would not be in the public interest to grant the application. (2) Subject to s57, objection to the grant of an application for, or for the removal of, a hotelier's licence or an off-licence to sell liquor by retail may be taken (whether or not an objection is also taken on a ground specified in subs(1) or subs(3)) on the ground that the needs of the public in the neighbourhood of the premises to which the application relates can be met by facilities for the supply of liquor existing in, and outside, the neighbourhood. S57 relates to removal of a licence including an off-licence. $57(4) provides: (4) S45(2) does not apply to a removal of a licence to premises within the same neighbourhood as the premises from which it is proposed to remove the licence. [emphasis added] Interpreting the Act in O'Sullivan v Farrer!, Mahoney JA (in dissent in the Court of Appeal but approved by the High Court) stated:2 ... It would, I believe, be strange if, on an application for removal of a licence from one place to another, the Licensing Court could not take into account the interests of those who were using it where it was or, at the least, take into account such public interest as there was in leaving it where it was. But, in addition, the terms of s45(1)(c) allow such a matter to be taken and therefore pressed as an 1. (1988) 13 NSWLR 562 2. (at 566) 4 UNREPORTED JUDGMENTS objection to the removal application. The court's judgment was that it was in the public interest to leave the licence where it was: "it would not be in the public interest" to grant the application to remove it." In the High Court, the majority held that the convenience and general amenity of the neighbourhood were relevant considerations. Mason CJ, Brennan, Dawson and Gaudron JJ said: Notwithstanding the reference in the decision of the majority of the Licensing Court to the proposed new premises being "cheek by jowl with an existing hotel providing adequate packaged liquor facilities', we do not understand that decision to have been based upon the consideration specified in s45(2) of the Act, namely, that the needs of the public in the neighbourhood of the proposed new premises could be adequately met by existing facilities for the supply of liquor. Rather, as we read their decision, the learned magistrates had regard to the general amenity of the neighbourhood and the convenience of the members of the public resident in and frequenting the neighbourhood. The observation that there were already adequate packaged liquor facilities was no more than an acknowledgment that, had the facilities been inadequate, that consideration would have been taken into account in any decision based on general considerations of public amenity and convenience. [emphasis added]*+ In the present case, the Licensing Court construed the interrelationship of s45(2) and s57(4) saying as follows: In conclusion we are satisfied, from the evidence, that the removal of the licence to the proposed site would provide a greater convenience to the substantial majority of the public of Bathurst, than recourse to Macs Liquor store in its existing site. Any inconvenience caused those in the neighbourhood who would prefer to continue to purchase their liquor in Keppel Street is not such to determine the issue. But in any event, as intimated above, "needs" is not relevant to this determination. General public amenity and convenience must mean something other than the competing needs of those who reside in or come to the neighbourhood of the premises on a regular basis. This is not to say that there is not a need for a licence at Keppel Street or in its vicinity. But that is not a question for this Court to decide, given the finding on neighbourhood. [emphasis added]5 On appeal from the Licensing Court, Dowd J distinguished the 'needs' made irrelevant to the removal decision by the operation of s45(2) and s57(4), from matters of amenity and convenience, which he variously described as 'public needs' 'community needs' and local needs'. His Honour stated: This reference to "needs" is not a reference to neighbourhood needs, as such. The reference by the Licensing Court, set out in the passage I have quoted above referring to "needs" is not relevant to this determination. The reference otherwise to "needs" as a matter to be taken into account cannot, in the context of the judgment of the Licensing Court, be a reference to the subs45(2) examination. The Licensing Court has accepted the "local needs" evidence from the various witnesses and then has treated that evidence as though it were excluded by the operation of subs57(4). 3. (1989) 168 CLR 210 4. (at 218) 5. AB 25 URJ BEAN v DJUKIC and ANOR (Stein JA) 5 However, the provision set out in subs57(4) of the Act only deals with subs45(2) and the issue of "local needs" remains relevant in this matter, as a matter of the interests of the public. It is my view that to exclude the consideration by the Licensing Court of "public needs" is to excise from that which is considered as "public interest" that evidence which deals with community needs.¢ Dowd J continued: However, it is my view that although there is obviously some aspect of the "needs" of the public within the neighbourhood within the examination of the public interest, that the fact of the exclusion by the Licensing Court of needs was an exclusion of part of the factors which the Licensing Court was obliged to take into account." I agree with his Honour's finding that it would be an error to exclude those factors. They were factors relevant to the public interest ground of objection under s45(1)(c) and do not arise under s45(2) (which factors are made irrelevant in these circumstances). The witnesses called by the objectors maintained there would be a reduction in convenience and amenity for customers using Mac's liquor in its current location. Mr Bean did not call any evidence to contradict this impression. Although the two premises are considered to be in the same 'neighbourhood', the distance between them of almost a kilometre is not a distance which may comfortably be walked carrying liquor. The removal will change the nature of an outing to the off-licence to one that will likely involve use of a car and the necessity of dealing with the parking arrangements of a major shopping centre. These issues are clearly matters of 'public interest' which are relevant to the decision to permit a removal of the licence under s45(1)(c). In this appeal we are concerned about the correct application of the High Court's decision in O' Sullivan v Farrer regarding the public interest. This court's task is to determine whether the decision of the primary decision maker, the Licensing Court, was made in error. The Licensing Court is a specialised tribunal, made up of licensing magistrates expert in the administration of the Liquor Act and their decision ought not to be overturned lightly. This was acknowledged by Dowd J. The decision of the Licensing Court recounts the evidence and, by way of conclusion, sets forth at some length the factors which appear to have influenced the decision. A substantial part of the Licensing Court's reasons for decision is taken up with a review of the evidence of residents who currently we the Mac's liquor store in its Keppel Street location.' The Licensing Court acknowledged that for those people the new location will be less convenient. However, they also noted that a larger number of people use the shopping centre to which the removal proposal relates. They said: To remove the licence from Keppel Street will no doubt cause inconvenience to those in the neighbourhood who frequently visit that area but will not cause inconvenience to the vast majority of the public in the neighbourhood.® 6. AB 34-35 7. AB 35 8. AB 23S 9. AB 24J 6 UNREPORTED JUDGMENTS Their Worships also took notice that there were advantages for customers arising from having two outlets within the one shopping centre by allowing price comparisons to be made, thereby encouraging competition. In their conclusion, which was scrutinised closely in submissions before this Court, their Worships indicate that the loss of convenience to Keppel Street shoppers was outweighed by the enhanced convenience to the users of the Bathurst City Shopping Centre.!0 The passage (which I have referred to earlier) which the respondent submits indicates the error in the Licensing Court's approach, is as follows: But in the event, as intimated above, "needs" is not relevant to the determination. General public amenity and convenience must mean something other than the competing needs of those who reside in or come to the neighbourhood of the premises on a regular basis. That is not to say that there is not a need for a licence at Keppel Street or in its vicinity. But that is not a question for this Court to decide given the findings on neighbourhood. [emphasis added])!! There are at least two possible constructions of this passage. The first is that taken by Dowd J, that the Licensing Court interpreted the Act as not permitting them to take into account issues of convenience as a result of the combined effect of s45(2) and s57(4), because the premises were proposed to be removed within the same neighbourhood. Given the amount of time spent by the Licensing Court on the issue of how Keppel Street customers would be affected by the removal, both in hearing their oral evidence and in the decision, it is difficult to accept that on the penultimate page of a carefully written 26 page judgment, the Court would dismiss the matter of convenience as an issue not relevant to the determination they were making. A second possible interpretation of the passage is that the learned Licensing Court magistrates heard and assessed evidence as to the convenience of the current users of the Keppel Street premises, and weighed that convenience against the convenience of other residents of Bathurst and its surrounds, and found that the latter, concerning a greater number of people, outweighed the former, such that the net public interest weighed in favour of the removal application being granted. On this construction, it is submitted on behalf of the appellant that the passage quoted above was merely an inept manner of expressing that the Licensing Court was not taking into account the matters in s45(2), which would be irrelevant considerations because the proposed removal was within the same neighbourhood. As to this interpretation, the careful nature of the judgment cuts both ways. One might ask why there would be careless expression of the legitimate exclusion of matters which are not to be taken into account. However, it assumes an even greater error by the Licensing Court if those words are construed as excluding consideration of matters of public interest such as convenience and amenity. The learned magistrates confirm by the final words of their conclusion "... we are satisfied that general public amenity and convenience would not be harmed by the removal...' !2 that this is not the case, and that these matters were in fact foremost to their decision. 10. AB 24T-W 11. AB 25-26 12. AB 26 K-L URJ BEAN v DJUKIC and ANOR (Stein JA) 7 I would agree with the observation of Dowd J that 'a matter of the interests of the public'!3 remain relevant to the decision which the Licensing Court was called on to make. However, I believe that he may have clouded the issue by introducing phrases such as 'local needs' and 'community needs', to describe aspects of the public interest. I do not agree with his conclusion that the Licensing Court erroneously discarded these relevant matters of convenience of users of the store in its current location. As I have outlined above, it is plain that the tribunal simply found that these factors were outweighed by other 'public interests'. It is the primary decision of the Licensing Court with which we are principally concerned and, in my opinion, it should stand, no error being demonstrated. The respondent's supplementary written submissions have attempted to argue that the Licensing Court has on other occasions fallen into error in its application of the principles in O'Sullivan v Farrer, and accordingly, that it may have done so on this occasion. However, what the Licensing Court said or did on other occasions is irrelevant to the determination of this case. For the reasons I have set out, I am satisfied that the decision of the Licensing Court was one which was open to it to have made and no error has been shown. The appeal should be allowed, the orders of Dowd J set aside and the decision of the Licensing Court reinstated. The first respondent is to pay the costs of the appellant and, if qualified, have a certificate under the Suitors Fund Act, 1951. (1) Appeal allowed, the orders of Dowd J set aside and the decision of the Licensing Court reinstated. (2) The first respondent is to pay the costs of the appellant and, if qualified, have a certificate under the Suitors Fund Act, 1951. Counsel for the appellant: S B Austin SC and I Lawry Solicitors for the appellant: Back Schwartz Vaughan Counsel for the respondent: A G Whealy QC and P A Johnson Solicitors for the respondent: A Hatzis 13. AB 35 C-D