A hotel in Western Australia has won a landmark Supreme Court battle that could bring a new level of accountability to liquor regulators around the country.
Karl Bullers purchased the National Hotel in Fremantle as a ‘vision project’ and invested several million dollars restoring the vacant, fire-damaged heritage building, to cater to “upmarket, mature customers”.
An application for an extended trading permit (ETP) was submitted, which was refused first by the Director’s delegate and then by the Liquor Commission, on review.
Despite offering no criticism of Bullers, the venue or the proposal, acknowledging no link between the problems in the area and the Hotel, and even accepting its merit for the district, the Commission refused the ETP outright, based solely on “general harm” evidence.
Bullers appealed to the Supreme Court, bringing into question fundamental issues of law governing the Liquor Control Act that mean the Court’s decision will likely have echoes in cases around the country.
Legal counsel for Bullers, Tim Monaghan of Dwyer Durack Lawyers, spoke to PubTIC about the significance to the industry.
“The Court handed down its decision, finding that the Commission’s reasoning process was flawed and that it had failed to apply itself to the proper legal questions to be decided,” said Monaghan.
“Accordingly, the Commission’s decision was quashed.
“This is one of the most significant WA liquor licensing decisions of the past decade. It constitutes a strong direction from the Supreme Court as to how all liquor licensing applications in WA should be determined including key directions on how health evidence can and cannot be used.
“The Supreme Court has emphasised that health considerations must be balanced fairly with evidence of the positive aspects of licensed venues.”
Importantly, the ruling balances the scales between the ‘social harm’ catchphrase and the largely unsung value of business, opportunity and the economy.
And for jurisdictions around the country frustrated by the seemingly rubber-stamp injustice of licensing authorities, there comes some much-needed pressure to think before stamping.
“This is a significant win for the hospitality industry with acknowledgment that interventions are being made without objective evidence,” said AHA WA CEO Bradley Woods.
“This decision establishes an important precedent and sends a message that interventions must be justified.
“It’s important that recognised entities have input in liquor licensing matters. Unfortunately in Western Australia, we believe the majority of interventions are copy-paste jobs.”
WA’s Liquor Commission must now again re-hear the application and will be legally required to follow the Supreme Court’s guiding principles, but a result is not yet assured; the Director could still choose to challenge the ruling in the Full Court of the Supreme Court.
Other States, licensing regulators and Supreme Courts are not directly affected or governed by this ruling, but the judgement – particularly if upheld – is likely to be a persuasive authority in other cases in coming years.
The Supreme Court of Western Australia specifically instructed the licensing authority:
- When considering health evidence, you must assess the degree of harm likely to result from the grant of the particular application. You can’t just look at the level of general harm in an area and use that alone as a basis for refusing an application.
- When assessing health issues you are required to consider the relevance of ‘harm’ evidence to the particular application. That includes considering the specifics of the application such as the size & location of the venue, the nature and style of operation and proposed trading conditions.
- You can’t give primacy to the risk of incremental harm particularly when harm is not attributable to the applicant’s particular premises.
- You are not able to give health considerations any special status above the other primary object of the Act. In particular, you must give equal weight to the requirements of consumers and the proper development of the liquor and tourism industries.