Liquor store licence refused

The Department of Racing, Gaming and Liquor recently refused another application for a liquor store licence.  This application was for a restricted take away service in Perth.  The majority of sales were to be generated and transacted via the internet to members of its wine club.  The liquor store’s focus was to be the provision of premium wines.  It would not stock beer, spirits, or ready to drink products.

Neither the WA Police nor the Department of Health lodged an intervention against the proposal.  One objection was received but was held not to have been validly made out and consequently had no bearing on the Department’s determination.

Ultimately, the licensing authority found that, despite the applicant having produced evidence showing a demand for premium wine clubs in the metropolitan area, ‘there was no evidence to support the claims [of the applicant] nor any detailed information on what research it conducted leading to the conclusion that its proposed premises is necessary to cater for the requirements of consumers for liquor and related services.’  The decision specifically stated that ‘statements about a Vintage Wine Club operating at or from another licensed premises, such as Raffles Hotel, are irrelevant’.

This decision is an extension of what has now become the well entrenched approach of the decision maker.  Applicants for new licences cannot rely on generalised conclusions about the state of the industry or the likely demand for a product or service.  Simply aiming to replicate an existing successful business model will not suffice in terms of proving an idea may be in the public interest.

Can licensees be liable for assaults that take place off licensed premises?

On 7 September 2010 Levy J of the New South Wales District Court ordered a licensee company (and its approved manager) contribute over $250,000 in damages to a patron of its hotel after it was found to have negligently allowed another patron to leave its premises ‘without hindrance from the hotel staff” who then severely assaulted a patron who had earlier been evicted from the hotel.

The plaintiff, Graham Hadaway, was involved in two altercations with the defendant, Heath Robinson, prior to being evicted from the hotel.  Both the altercations on the day of the assault had been instigated by the defendant.

At some point after the second altercation the plaintiff was ejected from the hotel according to the primary judge.  Shortly after that the defendant left the venue, of his own free will, caught up with the plaintiff approximately 200 metres from the hotel and seriously assaulted him.  At first instance it was found that the licensee and the approved manager had breached their duty of care to the plaintiff by either not ejecting both Hadaway and Robinson, or at least one of the men, after the first or second altercation.

However, on appeal it was found that there was insufficient evidence to make a finding as to whether the licensee or its management had in fact evicted Hadaway.  Further, the Court of Appeal found that ‘it was not established that the appellants [licensee and approved manager] were in breach of the duty of care owed to the respondent in failing to eject Mr Robinson, or the respondent and Mr Robinson, at the time of the 5.30pm confrontation.’

The Court of Appeal does not express a view in its decision as to whether the licensee could have been held to have been contributory negligent for the assault which occurred off the licensed premises.  No such finding was warranted given that it had been found that the licensee had not breached its duty of care.

The judgement at first instance marks a high watermark in terms of a licensee’s liability for the welfare of its patrons once they leave licensed premises.  Despite the fact the decision of the Court of Appeal has seemingly restored the balance, the question as to whether a licensee can be liable for the actions of its patrons after they leave the licensed premises remains unclear.

For more information, please don't hesitate to contact: