The fairly recent Dan Murphy’s Supreme Court appeal decision has reiterated the necessity for applicants seeking new liquor licences to provide detailed and persuasive evidence to prove the licence is needed by the public.
The application in question was to set up a Dan Murphy’s in the Melville Shopping Centre on the corner of Stock Road and Canning Highway. At first instance the Liquor Commission (Commission) had found in that case:
the Act places a clear onus on an applicant to adduce sufficient evidence to satisfy the licensing authority that the grant of the application is in the public interest. The level and degree of evidence to be submitted by an applicant will invariably vary depending upon the facts and circumstances of each case. Whether evidence is relevant and probative depends not on the intrinsic qualities of the evidence but on what the evidence is said to prove.
The Commission was not persuaded it was in the public interest to grant the liquor store licence. Despite having also concluded the grant of the application would not negatively impact on the local community the Commission decided that the applicant had failed to discharge its onus.
On appeal the Supreme Court:
rejected the general principle that merely because a business model has proved to be popular in other localities, that that justifies the grant of a new licence in this locality or any other locality. Such a contention is untenable and ignores the regulatory scheme and the objects of the Act; the need to consider the merits of each case; and the need to properly weigh and balance the public interest considerations in the context of each individual application.
In addition the Supreme Court observed:
no evidence was presented that persons visiting the shopping centre might find it more convenient to purchase packaged liquor from the applicant's proposed store and no evidence was submitted that persons travelling along the main arterial road would find it more convenient or have any requirement to use the proposed liquor store. In addition to this the only other evidence of consumer demand was evidence from a Wine Club and some letters of support lodged with the local government authority.
Numerous applicants this year have sought to have decisions made by the Director of Liquor Licensing refusing to grant them a licence overturned by the Liquor Commission, including applications for:
a small bar licence at Cockburn Central, to be known as Café Royal;
a liquor store licence in Cranbrook, to be known as Cranbrook IGA;
a liquor store licence at Leeming Park, to be known as Euro Deli’sh;
a tavern restricted licence at Cockburn Central, to be known as the Last Drop Beeliar;
a liquor store at William Street, Perth, to be known as VHT Perth Pty Ltd;
a liquor store at Armadale Farmers Market, to be known as Forrest Road Liquor Pty Ltd;
a nightclub licence in Queen Street, Perth, to be known as Club Mansion; and
a small bar licence on Albany Highway, East Victoria Park, to be known as The Precinct Restaurant.
Lavan Legal comment
The Supreme Court’s decision in the Woolworths’ case is a timely reminder that all applicants must ensure that they present a highly persuasive application to the licensing authority in the first instance. The Liquor Commission can only decide review applications based upon the evidence that was presented to the licensing authority in the first instance.