Smith v Hardy & Anor [2000] NSWSC 1175

Reported Decision : 50 NSWLR 478

New South Wales Supreme Court

CITATION : Smith v Hardy & Anor [2000] NSWSC 1175 FILE NUMBER(S) : SC 12376/00 HEARING DATE(S) : 11/12/00 JUDGMENT DATE : 14 December 2000

PARTIES : Anthony Charles Leybourne Smith v Peter John Hardy & Anor JUDGMENT OF : Whealy J at 1

LOWER COURT Licensing Court of NSW JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Full Bench JUDICIAL OFFICER :

COUNSEL : S. Austin QC; A. Hatzis - Plaintiff Ian Lawry - Defendant SOLICITORS : Back Schwartz Vaughan - Plaintiff Phillips Fox - 1st Defendant Liquor Act 1982 LEGISLATION CITED : Liquor Act 1912 (as amended) Interpretation Act 1987 Armstrong v Edgecock (1984) 2 NSWLR 536 Kingston v Keprose Pty Limited (1987) 11 NSWLR 404 at 423 CASES CITED : Bropho v Western Australia (1990) 171 CLR 1 O'Sullivan v Farrer & Anor (1989-90) 168 CLR 210 Ex parte Watman (1963) NSW 580, 583 Lorence & Ors v Abraham (1982) 2 NSWLR 551 at 555 DECISION : Summons dismissed; The plaintiff is to pay the 1st defendant's costs

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

WHEALY J

THURSDAY 14 December 2000

12376/00 - Anthony Charles Leybourne SMITH v Peter John HARDY & Anor

JUDGMENT

1 HIS HONOUR: This is an appeal on a question of law arising under the provisions of the Liquor Act 1982. 2 The first defendant, a nominee on behalf of Franklins Management Services Pty Limited ("Franklins") made an application on 21 December 1999 for the conditional removal of the off-licence held by him from premises at 112/114 Norton Street, Leichhardt ("the existing premises") to part of premises known as Franklins Big Fresh, Cnr Marion Street and Flood Street, Leichhardt ("the proposed premises"). 3 Certain aspects of the history of this licence were dealt with by the Full Bench of the Licensing Court in its decision of 31 July 2000. Apparently, the licence had traded as an off-licence (retail) at 55 Norton Street until about 1997 or 1998. It had traded as Leichhardt Liquor Supply. The shop premises were acquired and demolished to make way for a new shopping centre in Leichhardt known as Norton Plaza. After the closure of the business at 55 Norton Street, the licence was moved to the existing premises which are about 250 metres north of the original location and on the opposite side of Norton Street being about 40 metres south of Marion Street. The licence was exercised at those premises for a short time trading as Fresh Point Liquor Supplies before it was acquired by Franklins. The licence was held by the first defendant in a dormant capacity at that location which is described as a double sided two storey terrace style shop. These premises were, in July 2000, vacant and for sale. 4 It is clear that the first defendant held the licence at the existing premises in a dormant capacity with an ultimate intention to move it to, and trade it from, part of the Leichhardt Marketplace Shopping Centre ("Marketplace"). The strategy selected was to make an application to remove the licence in its dormant capacity to a "broom cupboard" in the proposed premises in Marketplace. Why a "broom cupboard" was selected as an appropriate receptacle is not clear. Subject to the Licensing Court approving the removal, it was the first defendant's further intention, when suitable premises became available within Marketplace, to conduct a liquor store in conjunction with the Franklins Big Fresh Supermarket in that shopping centre. To achieve this purpose, it would be necessary to make a second application to move the licence from the proposed premises to the actual trading location. 5 The plaintiff is the New South Wales Merchandise Manager (Liquor) for Woolworths Limited ("Woolworths"). The plaintiff objected to the removal application. The principal ground of objection on which the plaintiff relied is that provided for in s 45(2) of the Liquor Act 1982. This section provides: - "Subject to s 57, 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 … 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." 6 In these proceedings, this ground of objection has been described shortly as "the needs ground". 7 Section 57(4) of the Liquor Act 1982 is in the following terms: - "Section 45(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." 8 Section 57(1) provides: - "The Court shall not grant an application for a removal of … an off-licence to sell liquor by retail to a place outside the neighbourhood of the premises from which it is proposed to remove the licence unless it is satisfied that the removal of the licence to the proposed new site will not affect detrimentally the interests of the public in the neighbourhood of the premises from which it is proposed to remove the licence." 9 The course of the proceedings is helpfully described by Mr Tony Schwartz solicitor, in his affidavit of 6 September 2000. I shall set out the matters dealt with in paras 7 to 10 of the affidavit. "7. With the consent of the plaintiff and the first defendant, the second defendant - the Licensing Court - made a preliminary determination of whether, due to the provisions of s 57(4), the ground of objection set out in s 45(2) of the Liquor Act 1982 was open to the plaintiff, and, therefore, whether evidence on that ground of objection was relevant. 8. In my opinion, if the objection pursuant to s 45(2) is available to the plaintiff that evidence would have taken approximately one hearing day. 9. After hearing evidence and submissions from the plaintiff and the first defendant on 25 May 2000, the second defendant determined on 31 July 2000 that: - (a) the neighbourhood of the existing premises encompassed the site of the proposed premises; (b) consequently it was not open to the plaintiff to take objection to the application on the grounds set out in s 45(2) of the Liquor Act 1982 . The second defendant did not define the neighbourhood of the proposed premises in order to determine whether the proposed premises were in the "same" neighbourhood as the existing premises. 10. As a consequence of those findings on 31 July 2000, and following submissions from the plaintiff and the first defendant on 10 August 2000, the second defendant granted the application on 10 August 2000."