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Supreme Court of Western Australia |
Last Updated: 4 April 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION : AUSTRALIAN LEISURE AND HOSPITALITY GROUP PTY LTD -v- COMMISSIONER OF POLICE [2017] WASC 88
CORAM : BANKS-SMITH J
HEARD : 20 OCTOBER 2016
DELIVERED : 30 MARCH 2017
FILE NO/S : GDA 3 of 2016
BETWEEN : AUSTRALIAN LEISURE AND HOSPITALITY GROUP PTY LTD
Appellant
AND
COMMISSIONER OF POLICE
First Respondent
EXECUTIVE DIRECTOR OF PUBLIC HEALTH
Second Respondent
LISA BAKER MLA
Third Respondent
MIKE DAUBE
Fourth Respondent
CHRISTOPHER ALBANY
Fifth Respondent
MAYLANDS RATE PAYERS AND RESIDENTS ASSOCIATION
Sixth Respondent
VINCENT BRESLAND
Seventh Respondent
MATTHEW DAMIAN PERRONI
Eighth Respondent
MARGARET MCARTHUR
Ninth Respondent
JANETTE MARY WHEARE
Tenth Respondent
AFL PTY LTD
Eleventh Respondent
JULIAN DUNCAN
Twelfth Respondent
TRISTA KOPROSKI
Thirteenth Respondent
ON APPEAL FROM:
Jurisdiction : THE LIQUOR COMMISSION OF WESTERN AUSTRALIA
Coram : MR S RAFFERTY (CHAIRPERSON)
MR E WATLING (DEPUTY CHAIRPERSON)
MR M EGAN (MEMBER)
File No : LC 3 of 2015
Catchwords:
Liquor licensing - Appeal from Liquor Commission - Whether determined application in accordance with Liquor Control Act 1988 (WA) - Whether regard to proper development of liquor industry - Procedural fairness - Turns on own facts
Legislation:
Liquor Control Act 1988 (WA), s 5(1)(b), s 5(1)(c), s 5(2), s 38(4)
Result:
Appeal allowed
Decision quashed
Application to be
reconsidered by the Liquor Commission
Category: B
Representation:
Counsel:
Appellant : Mr M N Solomon SC & Mr S Meacock
First Respondent : Mr D E Leigh
Second Respondent : Ms R K Hill
Third Respondent : No appearance
Fourth Respondent : No appearance
Fifth Respondent : No appearance
Sixth Respondent : No appearance
Seventh Respondent : No appearance
Eighth Respondent : No appearance
Ninth Respondent : No appearance
Tenth Respondent : No appearance
Eleventh Respondent : No appearance
Twelfth Respondent : No appearance
Thirteenth Respondent : No appearance
Solicitors:
Appellant : Squire Patton Boggs
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Third Respondent : No appearance
Fourth Respondent : No appearance
Fifth Respondent : No appearance
Sixth Respondent : No appearance
Seventh Respondent : No appearance
Eighth Respondent : No appearance
Ninth Respondent : No appearance
Tenth Respondent : No appearance
Eleventh Respondent : No appearance
Twelfth Respondent : No appearance
Thirteenth Respondent : No appearance
Case(s) referred to in judgment(s):
Summary1 The appellant seeks to redevelop the Peninsula Tavern site in Maylands. The redevelopment includes building a new tavern and replacing the existing drive through bottle shop with a new Dan Murphy's liquor store. Although the redevelopment has planning approval, approval is also required under the Liquor Control Act 1988 (WA).
2 The Liquor Commission refused approval on the basis that the appellant failed to establish that the redevelopment is in the public interest. It was not persuaded that the benefits of the redevelopment outweigh serious potential harm which might be caused to 'at risk' groups in the locality.
3 The appellant says that the Commission erred in law in the manner in which it addressed the mandatory objects of the Act and denied it procedural fairness.
4 I have determined that the appeal should be upheld and, as a reconsideration of the application involves consideration of public interest, the application should be remitted to the Commission for reconsideration.
Procedural background5 By application dated 15 April 2014, the appellant applied for approval under s 68 and s 77 of the Act for approval for an 'upgrade and revitalisation of the Peninsula Tavern and BWS Bottleshop to a new bistro style tavern and a Dan Murphy's liquor store'. The application was accompanied by, relevantly, a Public Interest Assessment (PIA) prepared by the appellant's lawyers.
6 The Director decided that s 38(2) of the Act should apply to the application, and accordingly the applicant was required to demonstrate that granting the application is in the public interest.
7 The first and second respondents lodged notices of intervention under the Act.[1] The other respondents lodged objections.[2]
8 On 7 November 2014, the Director referred the application to the Liquor Commission under s 24 of the Act. The Commission conducted a hearing on 2 September 2015. The hearing proceeded on the basis it was an application under s 62 of the Act for an alteration/redefinition of premises. The Reasons were delivered on 4 February 2016.[3] The Commission determined to refuse the application.[4]
9 The appellant appeals from that determination. Because the Commission was constituted by three members, no appeal lies except to the Supreme Court on a question of law.[5]
10 Although called an appeal in the Act, an appeal from an administrative body confined to a question of law is properly understood as in the nature of judicial review.[6]
11 Of the intervenors and objectors, only the first and second respondents took part in the appeal. The second respondent addressed only grounds 4 and 4A.
12 Amended grounds of appeal were filed on 14 September 2016, a course not opposed by the respondents.
Grounds of appeal13 There are 7 grounds of appeal:
(a) requiring the applicant to demonstrate that the application satisfied an overwhelming or strong requirement of consumers for liquor and liquor related services in the form proposed by the application; and
(b) failing to take account of the requirements of consumers by reference to the proper development of the liquor industry.
(a) constituting a significant new and qualitatively different (as opposed to merely a bigger) development in liquor retailing in the locality;
(b) reference to the notorious success of Dan Murphy's in other locations, the reasons for that success and the inferences that can be drawn from those reasons in circumstances where the Commission found that those other locations shared similar demographic features as the locality the subject of the application;
(c) providing such a facility within a significant and otherwise selfcontained innercity suburb;
(d) the positive impact on the amenity of the locality arising from the redevelopment of and improvements to premises and in particular the evidence indicating that:
(i) the population of the locality grew from 26,857 in 2006 to 31,345 in 2014 and is projected to reach 120,000 by 2031; and
(ii) a large format liquor store such as Dan Murphy's is well suited to a trade area population of over 40,000 persons.
(a) that the inexpensive alcohol was being purchased in bulk by customers such as restaurateurs and hoteliers and not by individual at risk customers;
(b) the profiles of Dan Murphy's customers; and
(c) that less than 1% of sales by Dan Murphy's nationally are from transactions worth less than $10.
4A. Further and alternatively, by failing to take account of who are the purchasers of the alcohol reflected in the sales data, the Commission erred by failing to exercise its discretion reasonably.
(a) the Commission denied the appellant procedural fairness by failing reasonably to give the appellant notice of the significance of the concern relating to the impact of traffic movements; or
(b) the Commission failed to have regard, alternatively proper regard to the relevant factor of the local authority's development approval for the application and the Commission thereby failed to give proper, genuine and realistic consideration to a relevant matter, alternatively acted beyond its power by exercising its discretion in a manner that was unreasonable; or
(c) the Commission acted beyond its power in respect of a matter that was properly within the function and expertise of the local authority.
Approach to Reasons of Commission(a) within the Maylands Activity Centre; and
(b) its proximity to other retail facilities within the locality.
14 It is well recognised that when an administrative decision-maker gives reasons, they are meant to inform. They should not be over scrutinised for perception of error. They should be read as a whole and considered fairly.[7]
15 At the same time, the reasons must enable the parties to comprehend the process of reasoning and evaluation. It is not enough to summarise evidence and state conclusions. The evaluation must be apparent.[8]
The Act16 The function of the Commission, as examined by the Court of Appeal in Woolworths Ltd v Director of Liquor Licensing,[9] was summarised by Allanson J in Carnegies v DLL as follows:[10]
In summary:
(1) By s 16, s 30A, s 33 and s 38, the Commission is required to hear and determine the application in accordance with the Act.
(2) By s 38(2), the applicant has to 'satisfy' the Commission that the granting of the application is 'in the public interest'.
(3) The expression 'in the public interest' imports a discretionary value judgment, confined only by the scope and purposes of the statute.
(4) In determining whether it is satisfied that the granting of the application is 'in the public interest', to the extent that those matters arise on the evidence (including notorious facts) before the Commission, the Commission is:
(a) bound to take into account those matters relevant to the objects of the Act; and
(b) entitled to take into account those matters set out in s 38(4).
(5) The Commission's obligation to take into account the public interest in that manner is not diminished by s 33(1). The absolute discretion in that section is subject to the Act. Section 33 does not confer on the Commission an arbitrary or unlimited power, or permit the Commission to grant or refuse an application other than consistently with the objects and other provisions of the Act.
17 Section 16 of the Act contains a number of provisions relevant to proceedings before the Commission. They include provisions to the effect that it is to act without undue formality and may obtain information as to any question that arises for decision in such manner as it thinks fit, and make its determination on the balance of probabilities. It may consider and dismiss or determine applications, and receive submissions and representations in relation to any application before it, as it thinks fit (s 16(1)(d)).
18 Section 16(7) provides that the Commission is to determine its own procedure, and is not bound by the rules of evidence or any practices or procedures applicable to courts, except to the extent that the licensing authority adopts those rules, practices or procedures. It is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms, and as speedily and with as little formality and technicality as is practicable.
19 Although not bound by the formal rules of evidence, it must act upon materials which have rational probative force.[11]
20 Section 16(11) provides:
Subject to subsections (8) and (9) and section 30, the licensing authority shall ensure that each party to a proceeding before it is given a reasonable opportunity to present its case and, in particular, to inspect any documents to which the licensing authority proposes to have regard in making a determination in the proceedings and to make submissions in relation to those documents.
21 As is apparent from s 16(11), and as stated in Hancock v Executive Director of Public Health,[12] the Commission is obliged to comply with the rules of procedural fairness.
22 The Commission is bound to take into account factual matters relevant to the objects of the Act.[13] The objects of the Act are set out in s 5, which provides:
(1) The primary objects of this Act are -
(a) to regulate the sale, supply and consumption of liquor; and
(b) to minimise harm or illhealth caused to people, or any group of people, due to the use of liquor; and
(c) to cater for the requirements of consumers for liquor and related services, with regard to the proper development of the liquor industry, the tourism industry and other hospitality industries in the State.
(2) In carrying out its functions under this Act, the licensing authority shall have regard to the primary objects of this Act and also to the following secondary objects -
(a) to facilitate the use and development of licensed facilities, including their use and development for the performance of live original music, reflecting the diversity of the requirements of consumers in the State; and
[(b), (c) deleted]
(d) to provide adequate controls over, and over the persons directly or indirectly involved in, the sale, disposal and consumption of liquor; and
(e) to provide a flexible system, with as little formality or technicality as may be practicable, for the administration of this Act.
(3) If, in carrying out any of its functions under this Act, the licensing authority considers that there is any inconsistency between the primary objects referred to in subsection (1) and the secondary objects referred to in subsection (2), the primary objects take precedence.
23 The objects have been amended over the years. In particular, the Liquor and Gaming Legislation Amendment Act 2006 (WA) amended s 38 to remove the 'needs' test that had previously applied and to introduce the public interest test.[14] Justice Allanson usefully summarises the history of the amendments to the objects in Carnegies v DLL and in particular notes that:[15]
The changes to s 5 are significant. The licensing authority is bound to take into account, in determining whether it is satisfied that the granting of an application is 'in the public interest', those factual matters that are relevant to the objects of the Act as set out in s 5(1) and (2): see Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227 [48] - [52]. While the minimisation of harm or ill-health remains a primary object, so too is the object in s 5(1)(c):
'to cater for the requirements of consumers for liquor and related services, with regard to the proper development of the liquor industry, the tourism industry and other hospitality industries in the State.'
24 The Commission is entitled to take into account the additional factors set out in s 38(4):
Without limiting subsection (2), the matters the licensing authority may have regard to in determining whether granting an application is in the public interest include -A preliminary matter - the nature of the application
(a) the harm or ill health that might be caused to people, or any group of people, due to the use of liquor; and
(b) the impact on the amenity of the locality in which the licensed premises, or proposed licensed premises are, or are to be, situated; and
(c) whether offence, annoyance, disturbance or inconvenience might be caused to people who reside or work in the vicinity of the licensed premises or proposed licensed premises; and
(d) any other prescribed matter.
25 There was some dispute between the parties as to the nature of the appellant's 'pitch'[16] before the Commission, a matter of some relevance to appeal grounds 1, 2 and 3. Counsel for the first respondent, Mr Leigh, described the appellant's pitch as being development or innovation by way of introduction of a premium wine retailer.[17]
26 Before the Commission, senior counsel for the appellant, Mr Solomon SC, described the proposal as follows:[18]
What is proposed is the demolition of the present unsightly and obsolete building, the redevelopment of a bistro style family oriented tavern and an upmarket large format liquor store with a different retail culture, an unprecedented selection at competitive prices, including selections, broad selections of both inexpensive alcohol and at the high premium end. It's a very different culture than exists there; far more consistent with the area itself and the way it's developing will continue to develop and far more consistent with contemporary retail trends in Perth and, more broadly, in the Australian community.
27 Further, the PIA provided to the Commission described the proposed liquor store:[19]
The packaged liquor store will be expanded to an area of 1,117m2, with a retail trading space of 767m2. The increase in floor space is necessary to display the large range of liquor to be offered for sale, which is synonymous with the Dan Murphy's brand. This includes the national, international and boutique beers which are now available and wines which are marketed on the basis of variety rather than style. Dan Murphy's provides its customers with a wide range of product choices and the large floor area is necessary to display those products to meet customer demand.
The packaged liquor outlet will be converted from a BWS to a Dan Murphy's (which will also be operated by ALH) with the broader product range described above, to cater to the growing consumer demand for browsing liquor stores. The Dan Murphy's product mix is mostly bottled wines, including premium wines. A copy of the proposed stock list for the store is attached at Annexure D, of the 3877 products that will be stocked at the Dan Murphy's store, 2292 will be varieties of wine. Dan Murphy's stores are well laid out and staffed by highly trained people passionate about their products and trained to share their knowledge about those products. Items such as cask wines are offered for completeness but are not heavily promoted and are given limited display located in less obvious areas.
28 There was evidence before the Commission that Dan Murphy's stores stock white wine priced from $10 to $500, and that it caters to all types of liquor consumers.[20]
29 Mr Solomon pointed to evidence before the Commission that indicated that while Dan Murphy's does stock many products in a low price point range it also stocks equally as many if not more products at a higher price point,[21] and said that the appellant does not shy away from that model but:[22]
No matter which way you slice the cake, the presentation was, and the reality is, that Dan Murphy stocks an enormous range, sells a very significant amount of liquor across the board, but its innovation is that it has all of this in one store with a browsing culture and a comfortable environment, providing a contemporary retail experience where you can get inexpensive wine at the best price and the best quality premium wine at the best price. And that was the way it was presented.
30 The Commission in its Reasons refers to the presentation:[23]
The Dan Murphy's stores are presented as stores offering a combination of a great product range (over 3500 products), well trained staff (able to advise on food pairings and cellaring) and a lowest price guarantee. The large size of the stores is said to be necessary to accommodate the huge range of product and to display such product in a way that is appealing to browsing customers.
31 The Commission took into account the sales figures for other locations in stating that the sale of cheap liquor makes up a not insignificant proportion of Dan Murphy's sale and is important to such stores.[24] Certainly the Commission put weight on the sale of cheaper liquor.
32 In my view, it is clear from the materials before the Commission that what was presented was an allround retail and browsing experience with an emphasis on a wide range of products. Whilst the appellant pointed to its sales of premium wines, it did not present the application as being targeted at a premium wine liquor store.
Grounds 1, 2 and 333 Grounds 1 3 were dealt with together by the parties.
34 The parties focussed in their submissions on the principles relating to proper consideration of the matters the Commission was bound to take into account.
35 The issue of the proper statutory function of the Commission was addressed by the same arguments.
36 The appellant alleges a failure by the Commission to take account of a relevant consideration which it was obliged to take into account. That is an allegation of an error of law.[25]
37 The preponderance of authority is to the effect that what is required to satisfy the duty to take into account relevant considerations is proper, genuine and realistic consideration of the relevant matter.[26]
38 The reasons dealt primarily with two objects. First, the Commission assessed the benefits advanced by the appellant, and in particular the extent to which the application meets the s 5(1)(c) primary objective to cater for the requirements of consumers for liquor and related services, with regard to the proper development of the liquor industry.[27]
39 In summary, the Commission assessed that the premises were not integrated with a retail shopping centre, the benefit of the liquor store to the tavern was not apparent, although community surveys suggested the application was supported there were reservations about size and potential harm to the community, there was insufficient engagement with stake holders, the locality already contains comprehensive liquor services, an increase in traffic movements would have a negative impact, the redevelopment would not provide a community hub, and people in the locality would not utilise the store for its diverse range of wines but rather to buy products they can already access in the locality but at cheaper prices.[28]
40 Second, the Commission considered the detriment and in particular the extent to which the application meets the s 5(1)(b) primary objective of minimising harm or ill-health caused to people or any group of people due to the use of liquor.[29] The focus was on a particular group of people, being those 'at risk' people in the community with respect to alcohol use and particularly those who are clients of various service providers.
41 Third, the Commission weighed up the benefits and detriments and concluded that the application was not in the public interest:[30]
In the Commission's view, the proposed Dan Murphy's store will, on the balance of probabilities, have a negative impact on the local community and the 'at risk' groups in the community in particular.
Although it is difficult to quantify the likely increase in harm or ill-health, particularly at a broader community level, the Commission is satisfied and is firmly of the view that the harm and illhealth likely to be caused to the 'at risk' groups examined in these reasons will be high and that the consequential harm and illhealth to these 'at risk' groups is likely to be significant.
Furthermore, the Commission is not persuaded that the benefits of the proposed development as enunciated by the applicant outweigh the serious potential harm and ill-health that is likely to be caused to the various 'at risk' groups in the locality.
After a careful consideration and evaluation of all the evidence, the Commission is not satisfied, on the balance of probabilities, that the applicant has demonstrated that the grant of the application is in the public interest as required by section 38 of the Act.
42 The Commission records its conclusion as to the s 5(1)(c) object at [279] as follows:
In summary, on the evidence presented, there is support for the redevelopment of the tavern, which considered in isolation, could be regarded as a requirement of consumers having regard to the development of the liquor industry. However, the application must be considered as a proposal comprising not only the redevelopment of the tavern, but also the introduction of an entirely new Dan Murphy's liquor store, and the Commission is not persuaded there is an overwhelming or strong requirement of consumers for liquor and liquor related services in the locality in the form of a liquor store of the size and nature, and operating in the manner, of the Dan Murphy's store proposed.
43 Although the conclusion is not expressly said to be with respect to the s 5(1)(c) object, it is clear that is what it addresses. In the next paragraph the Commission moves on to the object of minimising alcohol related harm.
44 The conclusion is problematical for two reasons. To the extent there is reference to 'development of the liquor industry', it is only in the context of the redevelopment of the tavern. It is not referred to insofar as the application includes a new Dan Murphy's liquor store.
45 Further, consumer requirements are addressed as if there must be an 'overwhelming or strong requirement', a standard not introduced by the words of s 5(1)(c). Those words suggest the Commission may have applied a higher standard of proof than was necessary or appropriate.
46 The issue between the parties is the operation of s 5(1)(c) of the Act. The appellant says that s 5(1)(c) is to be read as one sentence and that catering for the requirements of consumers is to be considered not in isolation, but taking into account the proper development of the industry. It says that both of those elements are 'integral part[s] of this compendious phrase'.[31] It is the context of the consumer requirements as stipulated by the object that is important.[32] Mr Solomon says that the meaning of the words is somewhat obvious and attempts to define them become circular: the words mean what they say.[33] The appellant does not complain that the Commission directed attention to consumer requirement: it complains that it directed attention to that aspect in isolation from the development aspect of the application.[34]
47 On the other hand, the first respondent says that the focus of s 5(1)(c) is 'the needs or demands of consumers for liquor and related services'.[35] Mr Leigh says:[36]
[T]he absolutely first point is, is it the case that the application brought before the licensing authority will cater for consumer requirements[.] Yes or no[.] If the answer is no, we don't even have to worry about whether or not that - the form or the way that the licensee has chosen to cater for consumer requirements - - -
...
The first part is, does it - would it provide for consumer requirements[.] Yes, no[.] If it would, should we grant it[.] If we grant it, would it be a grant that would be consistent with the proper development of the liquor industry or the tourism industry or the hospitality industry, and if it is so consistent, then it can be granted.
48 The first respondent submits that the words 'with regard to' and following are relevant, but they are words of limitation that ensure that only when there is consumer requirement is it also necessary to consider whether the grant would be in accordance with proper development. Mr Leigh says the words are included to avoid proliferation of liquor stores where a consumer requirement is established: the Commission never gets to the point of considering proper development of the industry unless it is first satisfied that there is a consumer requirement for the development.
49 To avoid repeating the phrase, 'the proper development of the liquor industry, the tourism industry and other hospitality industries in the State', I will use the words 'development aspect' by way of shorthand. They are intended to capture that part of s 5(1)(c).
50 The first respondent invited the court to consider extrinsic materials. The court may consider parliamentary materials in order to assist in an understanding of the context and purpose of a statutory provision.[37]
51 The first respondent referred to the Minister's second reading speech of the bill that became the Act as indicating support for its approach. In particular, the first respondent relied on the following:[38]
To add a higher emphasis on the needs of consumers, the act will be amended so that one of its primary objects will be to cater for the requirements of consumers for liquor and related services, with regard to the proper development of the liquor industry, the tourism industry and other hospitality industries in the state.
52 Mr Leigh submits that the Minister's reference to 'needs of consumers' is important. He says that 'requirements of consumers' in s 5(1)(c) therefore means 'needs or demands of consumers for liquor and related services'.
53 Mr Leigh then refers to the following:[39]
A key reform is the creation of a public interest test for new licences to replace the current needs test. Under the public interest test, all applicants will be required to demonstrate that the application is in the public interest, and the licensing authority will be required to consider the application based on the positive and negative social, economic and health impacts on the community. Although the public interest test will involve consideration of the amenity of a locality in the context of the facilities and services provided for consumers, the competitive impacts on other liquor businesses will not be considered. It should be noted, however, that the government does not consider proliferation of liquor outlets to be in the public interest and proliferation is not an outcome that would be supported by the public interest test.
54 Mr Leigh submits that because an applicant was no longer required to establish a licence was 'necessary', the additional words (the development aspect) are intended to operate as a check on proliferation and so are limiting qualifications.[40] A consumer need or demand is therefore a necessary but not sufficient condition.
55 There are difficulties with the conclusion the first respondent invites the court to draw based on the extrinsic material. First, the first extract expressly refers to the development aspect, and not as some secondary consideration but as part of the primary object.
56 Second, in the second extract the Minister is referring generally to the public interest test. The Minister is not directly addressing s 5. There is no basis upon which to infer that the development aspect in s 5(1)(c) has as its purpose antiproliferation. If the development aspect were intended to have that specific purpose, it would have been easy to draft the legislation accordingly.
57 Third, the manner in which the first respondent relies on those extracts requires dissection of phrases and a precision of definition that is not necessary in order to understand the ordinary meaning of the object in s 5. A narrow approach to the words is not supported by other extrinsic materials. For example, the Explanatory Memorandum includes the following:[41]
The objects of the Act set out in section 5(2) in relation to the proper development of the industry have been included as a primary object. This will result in the licensing authority being explicitly bound to have regard for consumer requirements and the benefits of the grant of an application to the development of the industry. When determining an application or matter, the licensing authority will have to weigh and balance the competing arguments about the public interest, against all three primary objects with a view to achieving the best possible outcome.
58 The reference to being 'explicitly bound' to consider the development aspect supports a broader view of its role.
59 The second reading speech also includes the following:[42]
The 2005 Freemantle review of the Liquor Licensing Act concluded that our liquor laws need to provide greater flexibility to meet the needs of consumers and tourists while promoting the consumption of liquor in lowrisk drinking environments. For too long the interests of consumers have taken a back seat to vested industry interests. Through the reforms I am announcing today, this government plans to put the interests of consumers at the forefront. The government is determined to promote innovation and diversity in the way liquor services are provided to consumers and provide more opportunities for small businesses.
...
It is time Western Australia's liquor laws reflected the realities of life in our state. People are looking for choice and opportunities. Small businesses want the chance to provide new and different services to their customers. Entrepreneurs are keen to explore ways to appeal to locals and visitors alike. Our tourism industry needs to be able to grow and prosper and continue to attract people from interstate and overseas to Western Australia. Our citizens are more sophisticated and discerning and want to have more freedom in how they spend their disposable incomes. This bill meets all those objectives.
60 Those statements support an approach that reflects greater flexibility and diversity and an increased regard to consumer interests and choices. In my view, the extrinsic materials support the appellant's submissions as to the way in which the s 5 object is to be construed.
61 The competing interpretations of s 5(1)(c) also call for a consideration of the meaning of the words, 'with regard to'. Mr Leigh says that the words could just as easily be 'having regard to'.[43] I agree. Searches have identified only one reported case where the meaning of the words, 'with regard to' has been considered.[44] The court there said that the words are 'wide words', although they were used in a contract rather than a statute. The case does not assist in this appeal.
62 There are various cases where by statute a decision maker is to 'have regard to' certain objects, and the words have been considered in that context. According to Pearce and Geddes in Statutory Interpretation in Australia:[45]
This expression [have regard to] is frequently used in legislation that vests decision-making power in a person or body. To control the scope of the discretion otherwise invested in the decision-maker, the legislation sets out matters to which the decisionmaker is to have regard when making the decision. This phrase has been consistently interpreted to mean that the decisionmaker must take into account the matter to which regard is to be had and give weight to it as an element in making the decision. However, the significance of the stated matters will depend upon their context. Barwick CJ in Rathborne v Abel (1964) 38 ALJR 293 at 295 said that, while it might not always be the case, generally a direction to have regard to certain facts or circumstances does no more than require the decisionmaker to which the direction is given to consider whether it should give any and, if so, what weight to the particular fact or circumstance when performing the duty or exercising the right given to it. Kitto J at 301 noted that the fact that a decision-maker is directed to have regard to certain matters that are specified does not preclude consideration of other factors thought to be relevant.
63 Further, as Basten JA said in Halpin v Lumley General Insurance:[46]
It may be remarked by way of exegesis that a statutory requirement to 'have regard to' a particular matter will obtain its force and effect from its context. The particular matter will become a fundamental element or focal point where it is the only matter, or one of a small number of identified matters, to be taken into account. Thus, in R v Toohey; ex parte Meneling Station, a matter, namely the 'strength or otherwise of the traditional attachment by the claimants to the land claimed' was the sole matter to which the Commissioner was obliged to 'have regard', four other matters being identified as matters for comment[.]
64 In s 5(1)(c) of the Act, it is the objects that are stated, rather than the obligations on the part of the Commission. Whilst I acknowledge the distinction, the cases do provide assistance in that they suggest the words impose an obligation that regard be directed to the prescribed matters.
65 The mandatory objects in s 5(1)(c) and s 5(2)(a) were considered by the Court of Appeal in Woolworths v DLL. The focus of the Court of Appeal in Woolworths v DLL was whether there was evidence of consumer demand, and whether that was in any event the correct question. The Commission in that case had made no adverse findings as to the appellant's propositions as to benefit, and rejected certain negative aspects but concluded it was not in the public interest to allow the application because it considered there was a paucity of evidence as to consumer demand. An appeal to a single judge of this court was dismissed. The Court of Appeal allowed an appeal from that decision. The Court of Appeal confirmed that the test with respect to consumer requirements is broader than the former 'needs' test.[47] Although the Court of Appeal was not asked to analyse the role of the development aspect as in this appeal, it is instructive to note the manner in which Buss JA referred to the 'correct question' for the Commission:[48]
The correct question was whether, having regard to all of the evidence and any notorious facts, including evidence as to the reasons for the popularity of the Dan Murphy's business model elsewhere and how those reasons related to the Bicton locality, there were consumer requirements in the Bicton locality for the range of liquor products and services which the appellant proposed to provide and whether, in all the circumstances, it was in the public interest to grant the application, particularly in order to contribute to the proper development of the liquor industry in a manner which reflected the diversity of consumer requirements.
66 Those words note the particular importance of having regard to the proper development of the liquor industry. They do not seek to limit the meaning of catering for 'consumer requirements' but rather acknowledge the broad context in which those requirements are to be considered.
67 Taking into account Woolworths v DLL, the extrinsic materials to which I have referred, the usual meaning accorded the words 'to have regard to' and the plain reading of the section, I consider s 5(1)(c) requires regard be directed to the proper development of the liquor industry, the tourism industry and other hospitality industries in the State in considering the issue of catering for consumer requirements.
68 Catering for consumer requirements is not to be considered in isolation. The potential and opportunity for proper development of the industry (including change) is not to be ignored.
69 Assuming there is appropriate probative evidence, the words invite a broader ambit of matters to be considered as part of assessing the diversity of consumer requirements and how they are to be catered for.
70 That does not diminish the role of the other objects to which the Commission must (and may) have regard.
71 It is then necessary to consider the approach the Commission took to s 5(1)(c). The Commission was clearly alive to the presence of the words in s 5(1)(c). Whether or not the words are recited is not determinative, but in this case the Reasons do refer to them. The primary objects (including s 5(1)(c)) and secondary objects are recited[49] and the relevant words are referred to on various occasions in the Reasons.
72 First, there are two references that are no more than citing the first respondent's submissions. There is no separate analysis by the Commission in that context.[50]
73 The Commission then refers to 'proper development' generally when noting the relevance of survey evidence:[51]
Independent, objective and properly constructed and conducted surveys, whilst by no means determinative of the requirements of consumers for liquor and related services, are, nevertheless, helpful in providing the Commission with an insight into, and placing some context from a community perspective around, the attitudes and expectations of consumers of liquor and other members of the local community affected by an application (having regard to the proper development of the liquor, tourism and hospitality industries, and the diversity of the requirements of consumers in the State).
74 The final reference is made where the Commission considers the appellant's submission that the notorious success of Dan Murphy's in other locations (such as Bicton) supports its application:[52]
The applicant has submitted that the Commission ought to examine the notorious success of Dan Murphy's stores in other locations and the reasons for that success, and to draw its own inferences that such a store would be similarly successful in this locality. The applicant refers to the Dan Murphy's Bicton case in support of its submission.
In the Commission's view, the requirement of consumers may differ depending on the characteristics of the locality and the local community.
Simply because a particular type of premises may be a requirement of consumers for liquor and related services (with regard to the proper development of the liquor, tourism and other hospitality industries) in one locality does not, of itself, mean it is a requirement of consumers for liquor and related services in another locality.
75 The final sentence reflects the Commission's view referred to in Woolworths v DLL to the effect that success in one locality does not of itself establish there will be success in another.[53] I address this matter further below.
76 Absent any express finding as to the development aspect in the context of the Dan Murphy's store (in contrast to the tavern), the question is whether the reasoning in any event discloses that proper consideration was given to that part of the object.
77 I accept that the conclusion at [279] is not to be read divorced from the Reasons.
78 The reasons that lead to the conclusion can be summarised as follows:
(a) surveys indicated that the respondents to the surveys were satisfied with the range, parking, service and price of products at their existing liquor store;[54]
(b) there are eleven licensed venues that sell liquor within a 2 km radius;[55]
(c) to the extent that Dan Murphy's offers a different product range, price and service to other stores, the choice is already available at nearby Dan Murphy's stores in Hyde Park and Morley;[56]
(d) although the demographic profile of each locality is unique, as the purchasing habits of consumers and trading experience of Dan Murphy's stores have many similarities in those suburbs for which sales data has been examined (Balga, Midland and Morley), it is reasonable to infer that the experience in Maylands will not be markedly different and may be used as a guide;[57]
(e) having regard to the sales data for those stores, many people living in the locality would not be attracted to the Dan Murphy store by the wide range of premium wines and would see it as offering similar products to their existing stores but at a lower price;[58] and
(f) whilst the new store would add diversity because of the wider range of products, the significance of that diversity on the population is questionable.[59]
79 The demographic profile of the Maylands area was described by the Commission:[60]
The demographic profile of the locality was also the subject of much analysis by the respective parties. In the Commission's view, the profile can best be summarised as comprising a mix of relatively affluent residents and a not insignificant proportion of disadvantaged residents with a relative high number of rental properties, some in the form of large apartment blocks in relative close proximity to the premises, and a relatively high number of Homes West properties across the locality.
80 However, the adoption of the sales data from the Balga, Midland and Morley stores as a basis for assuming common purchasing habits underlies the Commission's reasoning as to requirements. Maylands' demographic profile was not considered relevant to that exercise.
81 The appellant submits that the analysis is no more than an application of a repackaged needs test and that the Commission's conclusion was that the products that the people in the demographic group would buy were already available to them in other stores: the proposed store did not provide something that was not already available to them. It was not in issue before the Commission that the store would be successful.[61]
82 The appellant says that having undertaken that analysis, the Commission did not properly consider the nature of its proposed store taking into account the development aspects.
83 The appellant described its proposed store as follows:[62]
Dan Murphy's represents a qualitative leap in the retail liquor industry. It is a shift from traditional neighbourhood liquor stores to 'mega stores' that have an enormous range in one facility designed for browsing and a comprehensive 'retail experience' and all at the most competitive prices. It is much the same as the development in other industries (such as the shift from neighbourhood hardware stores to mega-stores such as Bunnings). It would be an error to assess the public interest in such a development by reference to whether the people in the locality express or reflect a 'need' for such a facility. Rather the question is whether such a facility would cater to consumer requirements in a manner that contributed to the proper development of the liquor industry.
84 The appellant says there was evidence available to the Commission relevant to the question of proper development that ought to have been considered in that context.
85 For example, it points to evidence as to the following:[63]
(a) the revolutionary nature of the store;[64]
(b) that many items with a high price point are stocked;[65]
(c) the store will provide customers with a wide range of product choices to cater to a growing demand for browsing liquor stores;[66]
(d) the growth and gentrification of the Maylands area;[67]
(e) its increasingly high density population;[68]
(f) the lack of a store of the nature of Dan Murphy's in the area;
(g) the change in retail culture to be brought about because the store would open earlier but close at 9.00 pm, as against the current bottle shop closing time of midnight;[69]
(h) the introduction of a retailer with responsible trading and staff training policies and an operational management plan aimed at 'being a good neighbour';[70]
(i) the development will attract people to the Maylands entertainment precinct;[71] and
(j) the significant investment made by Dan Murphy's in changing attitudes as to the purchase of alcohol to a more sophisticated browsing experience.[72]
86 The appellant also pointed to a lack of evidence that diversity by way of other liquor stores has been affected by the introduction of Dan Murphy's stores in other areas.[73]
87 It is important to note that the appellant's complaint is not a failure to take into account particular pieces of evidence.[74] It is the alleged failure to properly consider the s 5(1)(c) object that is at the heart of appeal grounds 1, 2 and 3.
88 The first respondent's position follows from its contention that the focus of s 5(1)(c) is 'the needs or demands of consumers for liquor and related services', and that absent a consumer requirement the issue of proper development need not be addressed. It says that because of the Commission's finding as to consumer requirement, it was not necessary to have regard to other matters. Therefore, the Commission complied with its obligation and no error is disclosed.
89 In the alternative, it says that in any event the Commission gave genuine consideration to the relevant matters, particularly those identified in ground 2 of the appeal.
90 As to appeal ground 2(a), the first respondent refers to three paragraphs.[75] One in particular is worth noting:
Certainly, range and the ability to browse may be important to the operation of a store, and premium wines, of which there may be a large range, would not be expected to sell in large quantities. Nevertheless, the significance of a wide range of wine, and premium wine, particularly to consumers in these localities would appear to be considerably less than might be concluded from some of the statements in the PIA.
91 The statement does not reveal engagement with the relevance of browsing to consumers. Further, the statement as to a relative lack of significance of a wide range is based upon an assumption that the buying habits for the Maylands store will not be markedly different to those in Balga, Midland and Morley. It is beer and cheaper wine (if measured by volume) that are important to the operations in Balga, Midland and Morley.[76] The reasons do not indicate engagement with the development aspect insofar as Maylands is concerned.
92 As to appeal ground 2(b), the appellant referred to the notorious success of other Dan Murphy's stores (as referred to in Woolworths v DLL) in support of its application. I accept, as the first respondent submits, that the Commission considered whether comparisons could be drawn with the Bicton application. The Commission considered that the unique demographic and locality of Bicton was a differentiator (among other things) and so the appellant's reference to Bicton did not assist it.[77]
93 The appellant suggests by ground 2(b) that the Commission found that Balga, Morley, Midland and Maylands share similar demographic features. The Reasons suggest otherwise. The Commission assumes the demographic features of the localities are unique.[78] It assumes consumer purchase habits will be the same.
94 However, although the Maylands' demographic profile was relied upon to distinguish the application from that regarding Dan Murphy's in Bicton, its relevance was then minimised in assessing the consumer buying patterns for the Maylands area.
95 As to appeal grounds 2(c) and 2(d), these matters can be dealt with collectively. The first respondent points to paragraphs where the Commission considered whether the liquor store added to the amenity of Maylands. I accept the Commission considered amenity. It found that the liquor store would be a destination store and not necessarily add to the amenity of the area (in contrast to the tavern which may become a community hub). It considered the effect of traffic. It did not, however, appear to have proper regard to the changing population of the suburb or to other unique matters relied upon by the appellant such as increasing gentrification in the context of s 5(1)(c).
96 The first respondent also contends that the conclusion at [279] reflects evaluation of the development aspect because of the reference to a store 'of the size and nature, and operating in the manner of the Dan Murphy's store proposed'.[79] I do not consider the use of those words in the conclusion confirms a level of analysis and evaluation as required. That is, with respect, too generous an interpretation of the language, particularly in light of the statement as to the tavern appearing in the same paragraph.
97 Taking into account the respective submissions of the parties, I do not consider the Reasons reveal that the Commission gave proper, genuine and realistic consideration to the matters relevant to the s 5(1)(c) object when the scope of that object is properly understood.
98 I accept that to some extent the Reasons refer to matters that might also be relevant to the question of proper development of the industry. For example, development is touched on in the reference to adding diversity of products,[80] but that reference of itself does not reflect the level of evaluation that is required, particularly when the value accorded diversity is apparently diminished by way of the assumption as to common purchasing patterns.
99 I also acknowledge that it is not necessary for the Commission to refer to every matter to which it gives consideration.
100 However, the Commission's reasoning focuses on the sales data and purchasing habits and what it sees as a lack of requirement for the store. Consistent with the intent of the legislation, consumer requirements must be considered in a broader context. Those requirements may be diverse.
101 Whilst the Commission may not view all matters raised by the appellant to be relevant to its decision making process, it is obliged to turn its attention to catering for consumer requirements and with regard to proper development. Some matters will be particularly important in that process. It is not appropriate that the court prescribe what they might be. It is a matter for the Commission and will depend upon the circumstances of any application. However, in this case, it would seem that the changing demographic of a community and the introduction of a different offering in terms of consumer choice and diversity are important matters for evaluation and the Commission ought to have proper regard to them, which means not only stating conclusions but revealing an analysis of the relevance of those matters.
102 The error is compounded by the apparent search for an 'overwhelming' or 'strong' consumer requirement for the store. The first respondent says that the Commission in using the word 'overwhelming' was not elevating the standard to a test but is simply using the adjective to describe weight.[81] Even so, the words suggest the Commission introduced a standard not otherwise required.
103 A proper consideration of the s 5(1)(c) object may not have led to a different result for the appellant, as it acknowledges.[82] On the other hand, it may have.
104 I would allow grounds 1, 2 and 3.
Grounds 4 and 4A105 These grounds relate to the primary object of minimising harm or illhealth caused to people, or any group of people, due to the use of liquor, as also reflected in s 38(4) and the assessment of public interest.
106 The Commission found that:[83]
The Commission is of the view that the likelihood of an adverse impact of the proposed Dan Murphy's store on the clients of the [service provider] agencies will be high and the extent of the potential harm significant, not only to the individuals concerned, but also to the agencies responsible for running their programs and the community generally.
107 The appellant says that in addressing the question of harm, the Commission failed to take into account the appellant's evidence as to the identity of purchasers of cheap liquor. It says that its evidence strongly indicated that 'overwhelmingly the purchasers of inexpensive alcohol were not at risk individuals' and that they were purchasers such as hoteliers and other nondisadvantaged purchasers buying in bulk.[84] Having failed to take that into account, it proceeded to consider the object on the basis of misleading evidence and so failed to give proper consideration to the statutory objectives.
108 There was some debate before me as to whether or not the ground so expressed addressed an error of law or an error of fact and law, or was a disguised merits review. Perhaps because of the potential for debate, ground 4A addressed the same matters but the alleged error was said to be a failure to exercise discretion reasonably.
109 The starting point when considering harm is the guidance provided by Allanson J in Carnegie v DLL, in accepting the following submission of counsel:[85]
In order to apply itself to the issues arising in the current application, the Commission was required to make finding about 'the level of alcohol related harm, due to the use of liquor, which is likely to result from the grant of an application'. Counsel submitted that, to properly carry out this task, the Commission was required to:
(1) make findings that specifically identified the existing level of harm and ill-health in the relevant area (Fremantle) due to the use of liquor;
(2) make findings about the likely degree of harm to result from the grant of the application;
(3) assess the likely degree of harm to result from the grant of the application against the existing degree of harm; and
(4) weigh the likely degree of harm, so assessed, together with any other relevant factors to determine whether the appellant had satisfied the commission that it was in the public interest to grant the application.
110 The Commission considered the issue of harm, taking into account that guidance.[86]
111 First, the Commission found that the Dan Murphy's store would increase the availability of liquor in the community:[87]
The proposed liquor store is multiple times the size of a 'normal' size liquor store, stocks a greater range of liquor both singly and in bulk and sells liquor cheaper than any other outlet.
112 It then considered who is likely to be affected by the introduction of the Dan Murphy's store, and found that it included various 'at risk' groups within the community.[88]
113 It noted that features of the Dan Murphy's store that might be relevant to an increase in harm include its lowest price guarantee and reputation as a retailer of a wide range of alcohol available at the lowest price.[89]
114 It then considered whether those features might increase harm over and above that which might be attributed to the BWS bottle shop already on site.[90] The Commission referred to evidence relied upon by the second defendant that indicated that a decrease in the price of liquor usually leads to an overall increase in consumption, noting there was no evidence to the contrary.[91]
115 It accepted the evidence of the second respondent and Professor Donovan (over evidence on behalf of the appellant) to the effect that the size and design of the store will also lead to an increase in sales and an increase in consumption of alcohol.
116 It then found that:[92]
In the Commission's view, there is a likelihood that the brand positioning of Dan Murphy's, its guarantee of the lowest price for alcohol of all types, discounts on bulk purchases and the effect of the store's layout and stock ranges on unplanned or opportunistic purchasing will result in an increase in the levels of consumption of alcohol within the locality, and perhaps more broadly across the community.
117 It then focussed on low socioeconomic and disadvantaged people generally and also 'at risk' groups identified by service providers.[93] It accepted evidence from Professor Donovan to the effect that low/competitive price pointing will have an impact on low income areas where consumers will attempt to maximise quantity of purchase for a given dollar. It took into account various comments from service providers to the effect that alcohol use is more likely for their clients when it is cheap and easy to access, that alcohol abuse is an issue for their clients, that alcohol use can lead to relapse, ill health and alcohol related problems for their clients.[94] It is appropriate that the Commission take into account such comments.[95]
118 The Commission then considered that the attraction of cheap alcohol would be more significant to clients of the service providers than any inconvenience involved in travelling to the store.[96]
119 The Commission concluded:[97]
In the Commission's view, based on the evidence of the service providers in particular, but also having regard to:
the clients of these service agencies will be attracted to the Dan Murphy's store because of its reputation as a provider of alcohol at the cheapest price, even at additional inconvenience, to maximise the purchasing power of their, often limited, financial resources.
The Commission is of the view that the likelihood of an adverse impact of the proposed Dan Murphy's store on the clients of the above agencies will be high and the extent of the potential harm significant, not only to the individuals concerned, but also to the agencies responsible for running their programs and the community generally.
120 The reason for setting out those steps in some detail is to show that the Commission did not place any separate importance on the potential purchase of bulk liquor by at risk customers. It was not obliged to do so in order to properly address the issue of harm. The focus was on the enhanced availability of cheap liquor as a whole.[98]
121 The Commission did not err in failing to address whether other members of the community (or indeed retailers) were buying bulk alcohol. Assuming that they were, it would not undermine the premise that there would be more cheaper alcohol available by the introduction of Dan Murphy's and that at risk consumers would be attracted to Dan Murphy's and increase their alcohol consumption. The decision was not premised on a finding that at risk groups had been primary customers (in terms of volume) or indeed any particular percentage of customers of Dan Murphy's cheap liquor.
122 In any event, I do not consider the Commission improperly ignored relevant evidence as to the identity of Dan Murphy's customers. Evidence as to supplies to hotels and restaurants was limited and of a generalised nature only.[99] The fact that the evidence was not referred to does not mean it was ignored: that course may simply reflect its low evidentiary weight. Whilst the average basket cost was said to be $65, as the Commission noted,[100] knowledge of an average basket cost does not indicate how many people are buying cheap liquor or how often. Indeed, if commercial purchasers make significant purchases, there would be many small purchases required to result in a basket average of $65. There was confidential evidence as to the percentage of sales where the transaction price was less than a certain price point. That evidence was also noted by the Commission, albeit in the recitation of evidence rather than in the reasoning.[101]
123 Further, the Commission took into account in a general sense the identity of Dan Murphy's clientele.[102] It summarised the evidence as to the age profile of Dan Murphy's customers and the proportion of budget, mainstream and premium sales. It noted that, 'Dan Murphy's customers are generally higher income earners who want to sample different products or are catering [for] an event'.[103] It did not ignore evidence relevant to the identity of customers.
124 Viewed against that backdrop, I accept the respondents' submission that ground 4 is, in effect, a challenge to the Commission's attribution of weight to the respective parties' evidence and is therefore not limited to an allegation of an error of law. The Commission was not obliged to consider the percentage of consumers of cheap bulk alcohol who were at risk in order to properly address the matters relevant to the increased risk of alcohol related harm and illhealth. Its consideration of those matters was not based on a distorted assessment of facts. I would dismiss ground 4.
125 As to ground 4A, and taking into account what has been said with respect to ground 4, the appellant has not established that the Commission's alleged failure to address particular evidence was so unreasonable as to constitute error. The Commission's assessment of issues and factual findings as to at risk consumers and the likely increase of harm from the increased availability of cheap liquor was reasoned and evidence-based, even if others might take a different view as to the weight to be given such evidence in light of opportunities for consumers to purchase cheap liquor elsewhere. I would dismiss ground 4A.
Ground 5126 The obligation to accord procedural fairness was referred to generally above. By ground 5, the complaint is that the appellant was not put on notice of an adverse finding as to an unacceptable increase in traffic.
127 The findings were as follows:[104]
Given the complexity of the road system servicing the proposed store, in particular, the roads crossing the railway line at Eighth Avenue and Caledonian Avenue, and the heavy volumes of traffic utilising the arterial roads, the proposed Dan Murphy's store is likely to create significant traffic issues.
The applicant has submitted a Traffic Review (conducted by Riley Consulting) and submitted that the proposed development will generate less traffic than the previous endorsed proposals for the site or future proposals should the current proposal not proceed.
Nevertheless, the development of the site, as proposed, is expected to generate 1538 vehicle movements per day (vmpd), a 47% increase over the present day activity at the site. The expected make up of those traffic movements is 424 vmpd to the tavern (down from 660 vmpd) and 1114 vmpd to the Dan Murphy's store (up from 388 vmpd for the bottle shop). In total, nearly three quarters of the traffic movements will be directly to, and from, the proposed Dan Murphy's store.
Even though the local authority would be expected to have considered the potential impacts of traffic on the local community and road network, no evidence of substance has been presented other than the traffic assessment referred to.
In the Commission's view, an increase in traffic movements of 47%, all of which and more, would be to, and from, the destination Dan Murphy's store, is likely to have a negative impact on the amenity of, and bring marginal benefit to, the locality
The Commission is not persuaded that, because the Dan Murphy's store does not have drive-through access, traffic would be reduced in the area (PIA section 15.2) or that there is sufficient, if any, evidence to suggest the early closing would 'reduce a lot of the late night traffic issues' (PIA section 15.2).
128 The first respondent says the finding is not adverse but one of 'lack of benefit'. However, I consider the finding that the Dan Murphy's store is 'likely to create significant traffic issues' and have 'a negative impact' is adverse.
129 It is not in issue that there is an overriding fundamental principle that a person be put on notice of potential adverse findings that might be made against them.
130 In Northbridge Enterprises Pty Ltd v Commissioner of Police,[105] Edelman J said:
Although the issues are often expressed as being questions of fact and degree, and although it is often said that no hard and fast rules can be prescribed one useful test to determine whether the affected party was given the opportunity of ascertaining the relevant issue and informed of the nature and content of adverse material might be to ask the following question: would a reasonable person in the position of the aggrieved party have anticipated the possibility of an adverse decision on that issue? Much may depend on the 'issue' that should be anticipated. The 'issue' should not be too finely characterised.
131 Also of particular relevance is the decision of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd,[106] where it was noted that there are two qualifications to the proposition that a decisionmaker is not generally obliged to invite comment on the evaluation of a subject's case:
(i) The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it ...
(ii) The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material. (citations omitted)
This passage has been referred to by the Court of Appeal in McKay v Commissioner of Main Roads[107] and also in Northbridge Enterprises v Commissioner of Police.[108]
132 The appellant provided the PIA, the attached MGA Town Planners report[109] and a Riley Consulting report[110] to the Commission. Riley Consulting are described as 'traffic and transport consultants'.
133 The PIA addressed the issue of traffic in three places.
134 In the background section and under a heading 'Traffic', the following appears:
The road system in the area surrounding the Premises provides road users with access to the CBD. Counts show that approximately 80,000 vehicles per day use the major roads adjacent to the Premises, including Guildford Road which carries the highest volumes of traffic in the Locality. Railway Parade, on which the Premises is located, also carries a significant volume of traffic.
Movement within the area is naturally restricted by the Swan River and also by the Perth to Midland railway line. The Maylands railway station is located right across from the Premises on Railway Parade. The railway line acts as a barrier between the Premises and the east side of the train tracks, however, the Peninsula Tavern is fortunately situated between the Seventh Avenue and Caledonian Avenue railway crossings, ensuring that access to the venue will not be limited.
These transportation factors combined to ensure that the Peninsula Tavern and Dan Murphy's will be highly accessible by both residents of the Locality and commuters from the CBD. A map of the traffic volumes in the area is annexed to this report at Annexure F. The new Premises will have 95 onsite car bays, plus 7 new parallel parking bays on Ninth Avenue, to allow customers to use the services at both the Peninsula Tavern and Dan Murphy's. The parking bays meet the planning requirements set out in the City of Bayswater Town Planning Scheme 24.
[the source relied upon as cited is the MGA Town Planners report]
135 Second, in the conclusion to the background and in a highlighted box, the following appears:
[A]ll planning requirements for parking and traffic management have been met.
136 Third, in the section dealing with amenity and under the heading, 'Traffic' the following appears:
The car parking at the Premises is mostly located at the back and side of the Dan Murphy's. The exit from the car park is designed specifically to direct service vehicles back to Railway Parade rather than allowing them to turn north into Ninth Avenue. This will ensure that Railway Parade remains the key road for access to the Premises.
The early closing hours of Dan Murphy's will reduce a lot of the late night traffic issues. The Dan Murphy's will not have drivethru access which will also reduce traffic through the area.
137 The Riley Consulting report commences by assessing the (then) current estimated existing vehicle movements as a base point, noting that the tavern and liquor store are considered to be undertrading. It then provides estimates for increased movements if the site were developed for mixed use commercial and residential (as apparently previously approved). It then compares likely increases in traffic movements if the current application were granted.
138 The Riley Consulting report concluded that if the appellant's development proceeded, there would be an increase in vehicular traffic. However, those increases in traffic movement would be less than if the site were redeveloped in accordance with the previously endorsed proposal, and so the impact in terms of traffic would be less. The previously endorsed proposal would see an increase in traffic of 106%.
139 Each of the PIA, MGA Town Planners report and Riley Consulting report were expressly referred to in the appellants' written submissions before the Commission hearing.[111] The submissions said, in the context of traffic and amenity:[112]
The proposed development will generate less traffic than previously endorsed and [for] likely alternate proposals for the site. The proposed redevelopment of the Premises will thus have less impact on amenity than the proposals that are likely to be realised if the application is not approved. [referencing the Riley Consulting report]
140 The appellant also provided a research report from West Coast Field Services[113] that included feedback on community attitudes. In summary, of the 17% of the respondents who thought the upgrade was a bad idea, 6% referred to 'amenity issues eg traffic'.[114] As to those respondents who thought the upgrade was a good idea, 50% had no concerns. Ten percent of those who thought it was a good idea still had concerns about 'increase traffic in the area - no parking available'.[115]
141 The appellant also refers to the fact that the redevelopment has local planning approval.[116] Part of that process includes a consideration of traffic issues, as is implicit from the second extract from the PIA quoted above.
142 The Commission was aware of the development approval[117] and expected that it would have dealt with traffic matters.[118]
143 The first respondent says that in addition to the documents referred to by the appellant, traffic was specifically raised in other documents that were amongst those before the Commission.
144 A Creating Communities report commented on results of an open night and survey. It concluded that the majority of respondents supported the redevelopment. Under the heading 'Issues', the report stated that 'concern was also raised regarding potential for traffic congestion'.[119]
145 Three persons in a survey referred to significant traffic increases as an issue in their respective 'community submission in opposition to a change in liquor licence', as compiled by the third respondent as objector, the Hon Lisa Baker MLA. Those three pages are within a document of some 75 pages.[120] One phone response to a separate survey is recorded in a second compilation of responses (of 151 pages), referring to traffic issues that would occur 'as we already see at fast food outlets'.[121]
146 The eleventh respondent (trading as de vine cellars) mentioned potential traffic congestion.[122]
147 The thirteenth respondent's objection referred to adjacent streets having only one lane of traffic in each direction, unlike wider streets where other Dan Murphy's stores are located.
148 At the hearing before the Commission, neither traffic nor congestion were mentioned, apart from a general comment by Mr Solomon about the relevance of arterial roads in directing traffic.[123] The PIA was referred to extensively at the hearing. It was the main supporting document provided with the application. The members were clearly aware of it, but nothing was said about its contents as to traffic.
149 The Creating Communities report was not referred to during the hearing before the Commission.
150 The survey evidence relied upon by the third respondent was criticised as not relevant during the hearing before the Commission. In any event, there was no reference to the comments in the surveys as to traffic. The third respondent gave oral evidence and did not raise the issue of traffic.[124]
151 Neither the eleventh nor thirteenth respondents' objections were referred to at the hearing.
152 The members did not raise any concern or ask any questions about traffic. The members did not refer to the Riley Consulting report. They did not refer to the West Coast Field Services survey. They did not refer to an increase in vehicular movements. They did not refer to the fact of planning approval in the context of traffic.
153 There are two aspects to the complaint. The Commission should not be criticised for failing to accord weight to the submission as to a reduction in traffic based on the changing hours of the drive through. That seems to have been no more than a submission drafted by the appellant's lawyers. However, the Commission's reliance on the Riley Consulting report is a different matter.
154 There is no doubt, as the first respondent contends, that the facts of this case are distinguishable from others such as Hancock v Executive Director of Public Health and Woolworths Ltd v Commissioner of Police,[125] in which the decision makers had regard to matters that were not part of the materials before the parties. However, the fact that the Riley Consulting report was provided by the appellant and was before the Commission is not determinative.
155 The purpose of the Riley Consulting report was to indicate that the increase in vehicle movements was less than as anticipated for the other potential development (which had apparently also been approved). The Report did not suggest, and nor did the respondents submit, that the anticipated increase in traffic was unacceptable or unmanageable. One can assume any development of the current undertrading site may result in an increase in traffic.
156 The Commission utilised the report in a manner for which it had not been prepared, and in a manner which had not been anticipated by submissions, nor by the respondents, nor raised at the hearing. The Commission formed the view, disclosed for the first time in the Reasons, that the increase referred to in the report would have a significant impact. There was no evidence to that effect. To adopt the words in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd, that is not an obvious and natural evaluation of the material in the report in the circumstances, and the appellant should have had the opportunity to respond to it. There may well be an answer as to the tolerance level for an increase in vehicle movements in the suburb. It may be that such an anticipated increase was manageable.
157 Further, the reason for discounting the value of the planning approval is not disclosed. It was not in dispute that planning approval had been given and that traffic had been considered as part of that process and there was no conflict of submissions on the point.
158 The Commission therefore formed its own view as to traffic increases being over and above an acceptable level. The appellant should have had the opportunity to respond to the Commission's view. The objections that referred to potential traffic issues were not significant, were not of any real evidentiary weight, were not obvious and were not commented upon at the hearing.[126] The survey evidence revealed only a relatively small percentage of respondents had any concerns about traffic.
159 The first respondent says that even if there was a denial of natural justice, it would not have affected the outcome of the hearing. I am not satisfied that I can draw that conclusion. Traffic was a matter in the mix. There may well have been submissions that the appellant might have made that would have affected the weight of the various matters in the mix.
160 I would uphold ground 5.
161 Therefore, I do not need to determine the appellant's argument that it was not open to the Commission to, in effect, overrule the decision of the local authority as to traffic. The appellant did not point to any authority on the point.
162 The objects of the relevant scheme (District Town Planning Scheme No 24) include strategically promoting the orderly and proper development of land, to secure the amenity, health and convenience of the Scheme area and its inhabitants, to promote coordinated development proposals and vehicular circulation systems and to create a pedestrian, traffic and landscape environment.[127] Traffic effect on amenity is clearly something to which the local authority has regard, but my preliminary view is that the Commission is also entitled to take into account traffic matters where relevant when considering the objects under the Act. The Commission has regard to different objects than the local authority. Having said that, if traffic is a live issue before the Commission, then it would seem appropriate to have regard to the fact that traffic has been addressed by the local authority. The weight it accords the position of the local authority on traffic is a matter for the Commission.
Ground 6163 This ground was not pursued by the appellant with the same enthusiasm as ground 5, and for good reason. The distinguishing feature is that the issue of the location of the site within the Maylands Activity Centre and its proximity to other stores was a live issue at the hearing. The appellant was aware it was an issue because it was referred to (as well as being referred to in the PIA). The divide of the railway line was referred to by the third respondent. For example, the third respondent noted that Maylands is very much a village community; it has a range of fashion stores, food stores, gift retailers, newsagencies, etc; that there is a railway line that separates the village from the development.[128] There was some discussion about whether the development site is within or just on the outskirts of the Activity Centre between the Commission, the third respondent and with Mr Solomon,[129] but even accepting it was within the Activity Centre, the point was made by the third respondent that the development site is not in the area of the retail stores of the village, but over the railway line and in an area surrounded by residences.[130] It is not in issue that the village centre was on the other side of the railway.
164 In those circumstances, the issue was sufficiently aired at the hearing to counter the prospect of the appellant being taken by surprise and I do not consider there was an absence of procedural fairness.
165 I would dismiss ground 6.
Outcome166 I have determined that the appeal should be upheld.
167 Section 28(5) of the Act provides:
(5) On an appeal under this section to the Supreme Court, the Supreme Court may -
(a) affirm, vary or quash the decision appealed against; or
(b) make any decision that the Commission could have made instead of the decision appealed against; or
(c) send the decision back to the Commission for reconsideration in accordance with any directions or recommendations that the Court considers appropriate,
and, in any case, may make any ancillary or incidental order the Supreme Court considers appropriate.
168 As a reconsideration of the application involves the assessment of public interest, the application should be remitted to the Commission as the specialist tribunal established for the purpose of dealing with such applications.[131] It is desirable that its expertise be utilised in determining the application.
169 I will hear the parties as to the precise form of orders.
[1]
As provided for under s 69 of the
Act.
[2]
See s 69 and s 73 of the
Act.
[3]
A complete set and a redacted set of Reasons were published and there are some
differences in the paragraph numbering: the references
in these reasons are to
the unredacted
version.
[4]
The Reasons were delivered by Deputy Chairperson Watling and Member
Egan.
[5]
Section 28(2) of the
Act.
[6]
Carnegies Realty Pty Ltd v
Director of Liquor Licensing [2015] WASC 208 [37]
(Carnegies v
DLL).
[7]
Collector of Customs v
Pozzolanic
Enterprises Pty Ltd
[1993] FCA 456; (1993) 43 FCR 280, 287;
Minister for Immigration
and Ethnic Affairs
v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 271 272;
Carnegies v DLL
[53]; Hancock v
Executive Director of Public Health [2008] WASC 224
[70].
[8]
Hancock v Executive
Director of Public Health [72],
[80].
[9]
Woolworths Ltd v Director
of Liquor Licensing [2013] WASCA 227; (2013) 45 WAR 446
(Woolworths v
DLL).
[10]
Carnegies v DLL
[22].
[11]
Re Pochi and Minister for
Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247,
256 257.
[12]
Hancock v Executive
Director of Public Health
[39].
[13]
Woolworths v DLL[
49] [50].
[14]
Woolworths v DLL
[57] citing as to the needs test,
Liquorland (Australia) Pty
Ltd v Austie Nominees Pty Ltd (1999) 20 WAR
405.
[15]
Carnegies v DLL
[11].
[16]Adopting
Mr Leigh's
term.
[17]
ts
50.
[18]
Commission
ts 9.
[19]
Appeal Bundle 11,
8.
[20]
ts 90.
[21]
ts 89 90.
[22]
ts 88.
[23]
Reasons
[261].
[24]
Reasons
[268].
[25]
Paridis v Settlement
Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
[53] [57].
[26]
A v Corruption and Crime
Commissioner [2013] WASCA 288 [88] [92];
Jacob v Save Beeliar
Wetlands (Inc) [2016] WASCA 126; (2016) 50 WAR 313
[49] [52].
[27]
Reasons [193]
[279].
[28]
Appellant's submissions [28] and paragraphs of Reasons referred
to.
[29]
Reasons [280] [328]. Section 38(4)(a) was therefore also
considered.
[30]
Reasons
[327] [330].
[31]
ts 12.
[32]
ts 16.
[33]
ts 85.
[34]
ts 17.
[35]
First respondent's submissions
[33].
[36]
ts 45 46.
[37]
Section 19 Interpretation Act 1984
(WA): Van Heerden
v Hawkins [2016] WASCA 42 [102], [125];
Burns v Minister for
Health [2012] WASCA 267; (2012) 45 WAR 276
[27] [33].
[38]
Hansard, Legislative Assembly, 20 September 2006,
page 6341.
[39]
Hansard, Legislative Assembly, 20 September 2006,
page 6342.
[40]
First respondent's submissions
[35].
[41]
Explanatory Memorandum, Liquor and Gaming
Legislation Amendment Bill 2006
(WA),
page 1.
[42]
Hansard, Legislative Assembly, 20 September 2006, pages 6341 and
6344.
[43]
ts 40.
[44]
Hortico (Australia) Pty
Ltd v Energy Equipment Co (Australia) Ltd (1985) 1 NSWLR 545,
555 556.
[45]
Pearce DC & Geddes RS,
Statutory Interpretation in Australia
(7th Ed) [12.15] and cases
cited.
[46]
Halpin v Lumley General
Insurance Ltd [2009] NSWCA 372; (2009) 78 NSWLR 265
[25].
[47]
Woolworths v DLL
[8],
[57].
[48]
Woolworths v DLL
[89].
[49]
Reasons
[189] [190].
[50]
Reasons [96],
[169].
[51]
Reasons
[222].
[52]
Reasons
[239] [241].
[53]
Woolworths v DLL
[75].
[54] Reasons [271], although the Commission also criticised the surveys as not being representative: [237] [238].
[55] Reasons [271].
[56] Reasons [272].
[57] Reasons [276].
[58] Reasons [277].
[59]
Reasons
[277].
[60]
Reasons
[275].
[61]
ts 21.
[62]
Appellant's submissions
[38].
[63]
Appellant's submissions [45], Annexure A.
[64] By reference to Commission ts 8; statement of Campbell Stott, Appeal Bundle 26 [parts 5 7].
[65] Supplementary Evidence Report, Appeal Bundle 23; statement of Martine Smith, Appeal Bundle 25 [8.3] [8.5]; statement of Campbell Stott, Appeal Bundle 26 [8.8] (white wines are priced from under $10 to over $500).
[66] PIA, Appeal Bundle 11, 8, 15, 31; Supplementary Evidence Report, Appeal Bundle 23, 12.
[67] PIA, Appeal Bundle 11, 7, 23; MGA Town Planners Report, Appeal Bundle 14.
[68] MGA Town Planners Additional Report, Appeal Bundle 32 (attachment), [4.1] [5.6].
[69] Commission ts 18.
[70] Commission ts 95 96; PIA, Appeal Bundle 11, 13, Interface Management Plan, Appeal Bundle 13; statements of Katherine Redfearn and Leslie Beaton, Appeal Bundle 28 and 29.
[71] PIA, Appeal Bundle 11, 9.
[72]
Appellant's submissions 19 August 2015, Appeal Bundle 31
[43].
[73]
Commission
ts 14.
[74]
The distinction noted in
Paridis v Settlement
Agents Supervisory Board
[57].
[75]
Reasons [265], [268],
[270].
[76]
Reasons
[269].
[77]
Reasons
[244].
[78]
Reasons
[276].
[79]
ts 51 52.
[80]
Reasons
[277].
[81]
ts
55.
[82]
ts 22,
24.
[83]
Reasons
[311].
[84]
Appellant's submissions
[48] [49].
[85]
Carnegie v DLL
[42].
[86]
Reasons
[280].
[87]
Reasons
[294].
[88]
Reasons
[290].
[89]
Reasons
[290].
[90]
Reasons [289],
[291].
[91]
Reasons
[292].
[92]
Reasons
[296].
[93]
The agencies providing services to vulnerable individuals in relative close
proximity to the premises that provided evidence via
the second respondent
included Shopfront; CROFT Inc; 55 Central; Elizabeth Hansen Centre; Derbal Bidya
Hostel; and St Lukes Church.
Reasons
[303].
[94]
Reasons
[303].
[95]
Based on a similar analysis in
Liquorland (Australia) Pty
Ltd v Executive Director of Public Health [2013] WASC 51
[58] [78].
[96]
Reasons
[308].
[97]
Reasons
[310] [311].
[98]
The Commission did note a submission from the second respondent that existing
alcohol related harm and illhealth will be exacerbated
by any increase in the
supply of low cost bulk alcohol, but that submission did not purport to diminish
the risk with respect to
low cost liquor generally: Reasons
[300].
[99]
Appeal Bundle
29AB.
[100]
Reasons
[298].
[101]
Reasons
[144].
[102]
Reasons
[141] [145].
[103]
Reasons
[298].
[104]
Reasons
[248] [252].
[105]
Northbridge Enterprises
Pty Ltd v Commissioner of Police [2014] WASC 135
[84].
[106]
Commissioner for
Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074;
(1994) 49 FCR 576, 591.
[107]
McKay v Commissioner of
Main Roads [2013] WASCA 135
[157].
[108]
Northbridge Enterprises
Pty Ltd v Commissioner of Police
[80].
[109]
Appeal Bundle
14.
[110]
Appeal Bundle
30.
[111]
Appeal Bundle 31,
32.
[112]
Appeal Bundle 31
[51].
[113]
Appeal Bundle
27.
[114]
Appeal Bundle 27,
1111.
[115]
Appeal Bundle
27, 1113.
[116]
By its delegate, the Metro Central Joint Development Authority
(ts 35).
[117]
Commission
ts 41.
[118]
Reasons
[251].
[119]
Appeal Bundle 15,
21.
[120]
Appeal Bundle 17, 602, 603,
676.
[121]
Appeal Bundle 18,
681.
[122]
Appeal Bundle Tab 16
[3.6].
[123]
Commission
ts 36.
[124]
Commission
ts 34 35.
[125]
Woolworths Ltd v
Commissioner of Police [2013] WASC
413.
[126]
Including here the West Coast Survey
percentages.
[127]
Scheme Objectives
1.6.
[128]
Commission ts
33.
[129]
Commission ts 42,
97.
[130]
Commission ts 33, 42.
[131] Australian Leisure & Hospitality Group Pty Ltd v Commissioner of Police [2016] WASC 40 [24].
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