The following are the obligations associated with incident registers:

• Licensees must maintain a register of ‘prescribed incidents’ that take place at the licensed premises.  ‘Prescribed incidents’ are listed in the Liquor Control Regulations and may be amended from time to time.  Amendments have been made since the law was first introduced in 2006.

• The form of the incident register must be acceptable to the Director of Liquor Licensing.  Licensees are not at liberty to create their own system, method or form for recording incidents.  Only a form approved by the Director is permissible.  The Director’s current published approved form is attached.  Other styles of forms may potentially be approved by the Director upon application by the licensee.

• The incident register must be produced upon request by an authorised person for inspection.  If, for example, the incident register is locked in an office or otherwise inaccessible at the time of an inspection, this will amount to non-compliance and possibly attract a fine.   

Licensees should ensure that they and their staff are fully aware of the obligations associated with incident registers.  Staff refresher training on this issue is recommended.

For more information, please contact:

The recent change in Corona supplier will affect a large number of licensees.  Potentially it may even result in some venues losing their ability to stock any Corona for a while.

Different licensees may find themselves facing different consequences, depending on the particular contractual terms of their supply agreements.  It is important that licensees carefully review their supply contracts to ascertain what their position is.

In some situations it may be possible for licensees to negotiate to vary the terms of their supply contracts.  This will not necessarily be possible for all licensees.  Two key issues to consider will be the following:

• What is the nature of the obligation to supply by the supplier in terms of the specified product?  In other words, is the supplier contractually obliged to supply Corona specifically?
• Is there scope within the agreement for the licensee to source Corona from another supplier?

This matter acts as a timely reminder to licensees of the role and importance of supply contracts within their businesses and the need to be cautious when agreeing to enter into supply arrangements.  Licensees should endeavour to put mechanisms in place to minimise the risk associated with a loss or diminution of supply.

Licensees should always carefully read any contract before entering into it.  This is necessary to ensure the terms of the contract are fully understood.  After that they should re-read the contract from time to time to maintain that understanding and awareness.  When necessary, legal advice on the terms of any contract should be sought and obtained.

Taking a prudent, diligent and fully informed approach to entering into all contracts associated with the business will help to reduce adverse impacts on the business should any problem arise.

For further information, please contact:

The applicant for a liquor store licence in the Asian grocery store in William Street, Perth lodged a petition as well as letters of support from surrounding neighbours.  The Director dismissed the evidence, stating there must be ‘…an appropriate level of evidence … that there is real and reasonable consumer requirement to justify … the licence.’   It was held ‘The petition is of no substance in relation to supporting the abovementioned assertions and is of no probative value; at best they are general statements of support for the grant of the application for the liquor store licence.’  As to the other evidence, the Director found that ‘With respect to the letters of support, no weight is assigned to them as per the Liquor Commission’s assessment in Busswater Pty Ltd [LC 17/2010]’.  These findings were in the context of the conclusion that there were ‘… high levels of alcohol-related harm, including anti-social behaviour and violence in Perth and Northbridge.’

The application for a liquor store licence at the Armadale Farmers Market was also refused in the public interest despite evidence from potential customers in the form of 28 witness questionnaires and 229 witness petitions.  There was, however, significant opposition in this case, including objections from the Armadale Lotteries House Management Committee, surrounding licensees as well as an intervention from the Executive Director Public Health.  As a result of the submissions put forward by the objectors and intervener, the Director ultimately concluded that ‘…as there is already alcohol-related harm occurring in Armadale, I am of the opinion that even a relatively small risk of increase in that level of harm not to be in the public interest.’

These latest refusals by the Director coincide with the Liquor Commission’s refusal last month of the Dan Murphy’s Cockburn Central store.  The Commission confirmed its opposition to Dan Murphy’s applications having also refused the application for a store at the Melville Plaza Shopping Centre last year.

This recent hardening of attitudes has been followed by an amendment to the Public Interest Assessment Policy on 29 February 2012.  Previously that Policy stated that the licensing authority might seek further information from applicants where considering applications.  That reference has now been deleted.

It appears reasonable to conclude that applicants for liquor licences do now face a significantly more difficult assessment process than in times past.  Five out of the nine published decisions in January to February were refused.  In the preceding two months only one out of seven failed.  The honeymoon period since the introduction of the Liquor Control Act in May 2007 appears to be over.

If you require assistance preparing your application or have any other liquor licensing query please do not hesitate to contact:

In support of the Bridgetown IGA liquor store licence, the applicant lodged witness petitions and witness questionnaires in support.  The Director dismissed the evidence, stating that ‘No weight has been given to the 89 witness petitions as they are merely the opinions of respondents that have no probative value…’  As to the questionnaires, the Director found them to be ‘of little probative value’ due to the lack of rigour of the questions and the responses. 

The application for a nightclub licence in Queen Street, Perth met a similar unhappy ending.  The Director found that the applicant had not ‘…presented cogent evidence to establish that the proposed nightclub will be catering for the requirements of consumers for liquor and related services…’ despite the applicant having lodged an online and manual petition and numerous letters in support of the application.  Of particular note for inner city licensees and potential applicants, the Director found that ‘there is already a significant level of alcohol-related harm in the Perth area’ and that in his opinion ‘even a relatively small risk of increase in that level of harm to be unacceptable.’

The other recent refusal was a small bar application on Albany Highway in East Victoria Park where it was held the applicant failed to provide evidence that was ‘relevant, reliable and logically probative’.  The Director’s decision in this instance illustrates that any application must be supported by objective evidence whether or not the application is categorised as being complex in the Public Interest Assessment Policy.

Even though the Public Interest Assessment Policy states that a small bar licence application is of a kind that is less complex than others, this does not in fact appear necessarily to be the case.  Therefore in such cases it is highly recommended that applicants always complete a comprehensive Public Interest Assessment which is supported by compelling objective evidence from consumers as to their requirements for the proposed liquor and related services.  Also, it is common place for small bar licence applications to be the subject of Police interventions.

These recent decisions can be contrasted with the November 2010 central city Sentinel tavern decision ofwhere the applicant provided ‘36 Public Interest Witness Questionnaires as objective evidence that its services would cater for the requirements of consumers’.  This relatively small amount of support was found to be ‘a representative sample of consumers in the CBD and their requirements for liquor……’

Every application is decided on the substantial merits of the particular case.  These latest decisions clearly demonstrate the Director is more critically analysing and weighing the evidence put forward by applicants. The decisions are clearly indicative of a more stringent approach and almost certainly are a warning signal for those seeking licences in the future to prepare with much more care and detail than was needed in the past.

If you require assistance preparing your application or have any other liquor licensing query please do not hesitate to contact:

• the fitness and propriety of any person;

• the question of whether if a particular application were granted, public disorder or disturbance would be likely to result;
• any other matter relevant to the public interest; or
• the interest that any person may have in a licence.

The Executive Director may intervene in relation to the harm or ill-health caused to people, or any group of people, due to the use of liquor and the minimisation of that harm or ill-health.

In addition to intervening, both may be required by the licensing authority to provide a report on relevant matters.  Further, both may elect to object to an application, in addition to/or instead of intervening. 

Both parties are increasingly intervening in applications in an attempt to either have the grant of a licence refused or, as is more commonly the case, to ensure that if a licence is granted, restrictive conditions are placed on the licence.  These interventions tend to generally focus heavily both on outlet density and crime statistics within the locality as justification for the imposition of conditions on a licence.

Outlet density relates to the number of licensed premises located within close proximity to proposed licensed premises.  It is argued in areas where there are a high number of licensed premises the likelihood of alcohol related harm occurring increases and therefore, the grant of a new licence is not in the public interest in that area.  For example, Health interventions most often state that ‘…the physical availability of alcohol, as measured by the density of licensed outlets in a defined geographical region, is associated with levels of alcohol-related harms arising within that region.  That is, higher aggregate levels of alcohol consumption and related harm occur where higher outlet densities also occur.’

Interventions also rely heavily on crime data, particularly alcohol related crime data.  The existence of alcohol related offending in an area is offered as proof that licensed premises are responsible for creating public disorder and disturbance.  The addition of another licensed venue in that area is said not to be in the public interest as it will contribute to the rate of alcohol related offending.  The Police proposition is that ‘… in essence, crime increases during the peak periods of trade of licensed premises in Perth and an inference can be drawn that an increase in licensed  premises will have an increase in criminal offences‘.  This summarises the Police argument against introducing new licensed premises where there is an existing level of alcohol related crime.

It is now commonplace for interventions to be lodged against virtually all hotel, tavern, small bar, nightclub and liquor store licence applications as well as a variety of other licensing applications such as variations, alterations and extended trading permits.

Interventions generally prolong and complicate the processing of an application.  Applicants are afforded the opportunity to respond.  The intervener may then reply.  The process can consequently add to an applicant’s costs.

A thoroughly prepared application is one which anticipates the possibility of an intervention with evidence to the contrary.  Another way to neutralise an intervention or to allay interveners’ possible concerns is to engage in consultation either before or after lodgement.

Although interventions are not necessarily fatal to an application’s prospect of success, in many cases a refusal occurs due to the impact of the intervener’s contribution.

If you require assistance in responding to an intervention or have any other liquor licensing query please do not hesitate to contact:

The amendments to the Liquor Control Act with the introduction of the restricted and unrestricted manager system arguably has had the greatest practical affect across the board on licensees.

A new kind of hotel licence called tavern restricted licence was introduced.  Like the small bar licence a restricted tavern does not allow packaged sales but is not subject to the numbers’ limit of 120 persons.

Various clauses in the Liquor Control Regulations became effective which exempted the requirement for licensing approval in a variety of circumstances.  The exemptions authorised, amongst other things, BYO liquor to be consumed at unlicensed live entertainment venues, the sale and supply of liquor at some small functions without an occasional licence, the supply of complimentary liquor by businesses and BYO liquor to be legally consumed within small charter vehicles.  Although described as an act of deregulation, it can in fact be argued that by introducing the exemptions the licensing authority has created an official watershed where previously there was more flexibility and less regulation.

Three members were added to the Liquor Commission in 2011.  Dr Eric Isaachsen, Mr Seamus Rafferty and Mr Alistair Bryant joined incumbent members Mr Jim Freemantle (Chairperson), Ms Helen Cogan, Mr Edward Watling and Mr Greg Joyce.  The appointments reflect the Commission’s heavy workload this year and likely further anticipated increase in its role.

The Commission’s decision in Dan Murphy’s Bicton [34/2011] affirmed its position that independent and relevant evidence in support of an application is required to discharge an applicant’s onus of proving that the grant of a licence is in the public interest.  The Commission rejected ‘… the general principle that merely because a business model has proven to be popular in other localities, that that justifies the grant of a new licence in this locality or any other locality. Such a contention is untenable and ignores the regulatory scheme and objects of the Act; the need to consider the merits of each case; and need to properly weigh and balance the public interest considerations in the context of each individual application’.  This case and others throughout the year have progressively raised the bar for applicants in terms of providing evidence in support of an application that is independent, relevant and proves the need for the licence.

Despite the ongoing licensing authority hardening of attitudes towards the grant of more ‘complex’ applications, numerous tavern and hotel applications within the CBD were successful.  Multiple tavern licences were approved at the soon to be completed City Square site, including the flagship 1,000 person capacity Print Hall premises.   The numerous City Square licences, along with the other CBD grants, pending applications and the Department of Health and WA Police stance on outlet density, are likely to make it increasingly difficult to obtain licences for large inner city venues in the foreseeable future.

The licensing authority is set to increase its application fees for new licences in 2012.  The fee for the majority of licences will increase from $2,810.00 to $3,100.00.  The balance, such as for producer’s, wholesaler’s and restaurants, will increase from $765.00 to $800.00.

Annual licence fee accounts have been issued.  Licensees are reminded that these annual licence fees must be paid by 1 January 2012.  Failure to pay the annual fee will result in late payment fees or may result in licence suspension.

On behalf of Lavan Legal, the Liquor Licensing Team wishes all Snapshot recipients a happy and prosperous festive season.  We very much look forward to your ongoing support in 2012. 

If any Snapshot recipients would like a particular topic covered by the Liquor Licensing Team in 2012 or require any liquor licensing assistance please do not hesitate to contact:

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

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

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

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

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

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

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

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

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

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

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

The Liquor Commission recently reaffirmed the decision of the Director of Liquor Licensing by rejecting a hotel licence for a major southwest development to be called Champagne House.  The Director had refused the application on the basis that the applicant had failed to prove it was in the public interest to grant the licence due to a lack of supporting evidence as to need.

Section 25 of the Liquor Control Act empowers any party dissatisfied with the Director’s decision to apply to the Liquor Commission for a review.  Reviews are conducted on a de novo basis, meaning the entire application is redecided afresh.

The applicant Topsouth Holdings Pty Ltd applied to the Commission to have its decision reviewed.  Topsouth currently operates with a producers’ licence at the subject property on Caves Road down south.  Existing facilities at the site include a 170 seat function centre, restaurant and bar, amphitheatre, accommodation and vineyard producing gold medal winning wine vintages.  The applicant had proposed to construct a further nine villa units (comprising of 43 suites and capable of accommodating 86 people) at the property this year and was seeking a licence more suitable to the operation of the property. 

Topsouth had obtained planning approval.  In addition the local government authority wrote a letter in support of the proposal to the Director.  The Executive Director Public Health intervened on the basis that the application may increase the likelihood of harm and ill-health occurring in the area due to the increased consumption of liquor.  The health concern was that the subject area was already experiencing high levels of harm as a result of liquor consumption, that the grant of the licence would increase outlet density and potentially increase road trauma in a locality where there is already a high level of alcohol related road trauma.  Eleven members of the public objected.

At first instance the Director determined that the objectors had not established the validity of their objections.  However, the Commission found that while many of the objections were lacking supporting material some did raise issues that were taken into account.  This opinion was ultimately qualified by the Commission’s conclusion that ‘in view of the lack of supporting evidence little weight was accorded to the objections’.  The Commission also disregarded the health argument finding that ‘it is the Commission’s view that the proposed functions at the premises will not sufficiently increase the consumption of liquor such that harm or ill health will be an issue‘.

Despite finding that the objections carried little weight and not being satisfied that harm or ill health would sufficiently increase as a result of the grant of the licence, the application was still refused.  The Commission was not satisfied that the application was in the public interest.  The applicant had been specifically advised by the Director in the earlier proceedings of its obligation to provide objective evidence in support of the application.  The applicant only supplied eight letters of support.  Even though the Commission stated that ‘each of these letters provides specific support for the hotel resort and represents a wide range of experience in the tourism industry’ the letters alone were not enough to satisfy it that the application was in the public interest.

Although there is no express statutory obligation to provide independent affirmative evidence in favour of a licensing proposal, it is clear that the licensing authority will refuse to grant a licence to an applicant which has provided no, or insufficient, objective evidence in support of the application.  This is particularly so in the case of an application that is opposed by the general public or the subject of an intervention.  The value judgment required as to the amount of objective public supporting evidence to be produced, in all cases involves a clear understanding of the nature, probative value and quality of the evidence which is needed to discharge an applicant’s onus of proof.  The need to obtain professional advice on this aspect is clearly demonstrated by this decision.

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