Car City Minchinbury Pty Limited v Lifestyle Vehicles Pty Limited
[2008] NSWADTAP 76
•10 December 2008
Appeal Panel - Internal
CITATION: Car City Minchinbury Pty Limited v Lifestyle Vehicles Pty Limited [2008] NSWADTAP 76 PARTIES: APPELLANT
Car City Minchinbury Pty LimitedRESPONDENT
Lifestyle Vehicles Pty LimitedFILE NUMBER: 089046 HEARING DATES: 5 November 2008 SUBMISSIONS CLOSED: 5 November 2008
DATE OF DECISION:
10 December 2008BEFORE: Chesterman M - Deputy President; Molloy G - Judicial Member; Ward R - Non-Judicial Member CATCHWORDS: Jurisdiction – retail shop lease DECISION UNDER APPEAL: Lifestyle Vehicles Pty Limited v Car City Minchinbury Pty Limited [2008] NSWADT 195 FILE NUMBER UNDER APPEAL: 085082 DATE OF DECISION UNDER APPEAL: 07/07/2008 LEGISLATION CITED: Aboriginal Land Rights Act 1983
Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal Amendment Act 2008
Fair Trading Act 1997
Interpretation Act 1987
Pawnbrokers and Second-Hand Dealers Act 1996
Pawnbrokers and Second-Hand Dealers Regulation 1997
Retail Leases Act 1994
Retail Leases Amendment Act 2005
Sale of Goods Act 1923
Second-Hand Dealers and Collectors Act 1906
Victims Support and Rehabilitation Act 1996CASES CITED: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Exxon Corporation v Exxon Insurance Ltd [1982] Ch 119
Lifestyle Vehicles Pty Limited v Car City Minchinbury Pty Limited [2008] NSWADT 195
Malouf (t/as Fusion Point) v Manly Council [2004] NSWSC 24 Manly Council v Malouf (2004) 61 NSWLR 394; [2004] NSWCA 299
Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48
Tringas v Quach [2007] NSWADT 24
Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260; [2003] HCA 54REPRESENTATION: APPELLANT
RESPONDENT
J Gleeson SC
P Kulevski, barrister
J Keogh, barristerORDERS: 1. Leave to appeal, if required, is granted
2. The appeal is allowed
3. The order made by the Tribunal in its decision dated 7 July 2008 is set aside and the following order is substituted: ‘The application instituting these proceedings is dismissed on the ground of lack of jurisdiction’
4. Any application for costs in these appeal proceedings must be filed and served, with supporting submissions, within 28 days of the date of this decision. The opposing party must file and serve submissions in reply within a further 28 days. Unless reasons are advanced for a hearing to be conducted, the matter will be resolved ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.
Introduction
1 In these appeal proceedings, virtually the only question to be determined is whether the phrase ‘Second-hand goods shops’, which is one of the phrases appearing under the heading ‘retail shop businesses’ in Schedule 1 of the Retail Leases Act 1994, includes businesses in which second-hand cars are sold.
2 In the decision under appeal (Lifestyle Vehicles Pty Limited v Car City Minchinbury Pty Limited [2008] NSWADT 195), this question arose in the following way. The Applicant, Lifestyle Vehicles Pty Ltd (‘Lifestyle’), applied to the Tribunal for declaratory and substantive relief under the Retail Leases Act (hereafter ‘the RL Act’). It alleged that it was the sub-lessee under a retail shop lease of premises known as Lot 10, 591 Carlisle Avenue, Minchinbury from the Respondent, Car City Minchinbury Pty Ltd (‘Minchinbury’). At these premises, it carried on the business of selling second-hand cars.
3 Without admitting that any sub-lease existed, Minchinbury disputed the jurisdiction of the Tribunal, on the ground that the sub-lease alleged to have been granted by it to Lifestyle did not grant a right of occupation of premises for the purposes of their use for the carrying on of any of the types of business listed in Schedule 1 of the RL Act, and therefore fell outside the definition of ‘retail shop lease’ in section 3.
4 The parties requested the Tribunal to determine the question of its jurisdiction before proceeding to other aspects of Lifestyle’s claim.
Relevant legislation
5 The long title of the RL Act is: ‘An Act to make provision with respect to the leasing of certain retail shops and the rights and obligations of lessors and lessees of those shops, and for other purposes.’
6 Section 3 of this Act contains the following definitions:-
- retail shop means premises that:
(a) are used wholly or predominantly for the carrying on of one or more of the businesses specified in Schedule 1 (whether or not in a retail shopping centre), or
- (b) are used for the carrying on of any business (whether or not a business specified in Schedule 1) in a retail shopping centre.
- Note . Section 5 limits the retail shops to which this Act applies.
- retail shop lease or lease means any agreement under which a person grants or agrees to grant to another person for value a right of occupation of premises for the purpose of the use of the premises as a retail shop:
(a) whether or not the right is a right of exclusive occupation, and
(c) whether the agreement is oral or in writing, or partly oral and partly in writing.(b) whether the agreement is express or implied, and
Note . Section 6 limits the retail shop leases to which this Act applies.
7 Section 5 states:-
This Act does not apply to any of the following retail shops:-5 Certain retail shops excluded from the operation of this Act
(b) shops that are used wholly or predominantly for the carrying on a business by the lessee on behalf of the lessor;
(a) shops that have a lettable area of 1000 square metres or more;
(c) any shop within premises where the principal business carried on on those premises is the operation of a cinema, bowling alley or skating rink, and the shop is operated by the person who operates the cinema, bowling alley or skating rink;
(e) premises of a class or description prescribed by the regulations as exempt from this Act.(d) any premises in an office tower that forms part of a retail shopping centre;
8 Schedule 1 of the RL Act is headed ‘Schedule 1 - Retail shop businesses’. A reference to section 3 appears immediately under the heading. The rest of the Schedule comprises a list of 165 categories of business, of which the last is ‘Any other business as from time to time may be prescribed by the regulations’.
9 As the following examples of categories in the Schedule illustrate, short descriptive phrases are used (a similar illustrative list appears in the Tribunal’s decision at [37]):-
barbers, batteries shops (other than motor vehicle batteries), bicycle accessories shops, bicycle shops, building supplies shops, chandler shops, convenience food shops, equipment hire shops, general stores, hardware shops, mixed business shops, motor vehicle and motor cycle accessories shops (excluding tyre shops and batteries shops), organ shops, plumbing supplies shops, pools and spas shops, and second-hand goods shops.
10 Reference should also be made to the following provisions within Chapter 7 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’):-
113 Right to appeal against appealable decisions of the Tribunal
(2) An appeal under this Part:(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.
(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.
(a) may be made on any question of law, and
(2A) Despite subsections (1) and (2), an appeal does not lie to an Appeal Panel of the Tribunal against an interlocutory decision of the Tribunal except by leave of the Tribunal.
114 Appeals on questions of law
(2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following:(1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision.
(a) an order affirming or setting aside the decision of the Tribunal (as originally constituted),(c) an order made in substitution for an order made by the Tribunal.(b) an order remitting the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel,
The Tribunal’s decision
11 For present purposes, the relevant features of the Tribunal’s decision are these.
12 At [9 – 17], the Tribunal set out various factual matters, including the following. Lot 10, being the premises occupied by Lifestyle, was one of 41 independent car sales yards contained in a 10-acre site at 591 Carlisle Avenue, Minchinbury. Lifestyle had occupied Lot 10 for some seven years under a lease from the owner of the site. It carried on the business of selling second-hand cars. The area of each of the 41 Lots, including Lot 10, was less than 1000 square metres. During March 2008, Minchinbury gave to Lifestyle a document headed ‘Appendix to Lease Agreement Between Car City Minchinbury Pty Ltd’ (sic) and a disclosure statement, which contained various references to the RL Act. These documents formed the basis of Lifestyle’s claims that it occupied Lot 10 under a sublease from Minchinbury and that this sub-lease was governed by the RL Act.
13 At [17], the Tribunal noted that at the time of providing these documents Minchinbury ‘plainly’ considered that the RL Act applied to leases relating to all the Lots, including Lot 10, at 591 Carlisle Avenue. The Tribunal added that this opinion was, of course, ‘not determinative of the matter’.
14 At [20], in the course of outlining Lifestyle’s submissions, the Tribunal quoted the following passage from paragraph 4 of the second reading speech of the Minister for Small Business and Regional Development during the passage of the Retail Leases Bill in 1994:-
I alluded earlier to the coverage of the Bill, and its coverage of all retail establishments, not only shopping centres… All the evidence presented to me suggests that the problems are widespread, whether the premises be stand alone shops, strip shops, or metropolitan shopping centres. Nor can I see that there is a logical reason why bad leasing behaviour would be restricted to regional shopping centres. If it is appropriate to put in place a basic system which will facilitate negotiation of leases on the basis of full disclosure, then surely it is appropriate if the system should be available to all leases.
15 At [34], the Tribunal cautioned against relying on definitions (for example, of the term ‘goods’) contained in legislation other than the RL Act.
16 At [38 – 39], it stated:-
38 Plainly, the legislature considered that the provisions of the Retail Leases Act would have a wide operation over a wide variety of shops. The respondent says that the general meaning understood in the community as a “second hand goods” shop is very different from the type of business understood as being a used car yard. That is certainly true, but it does not mean that, properly construed, vehicles sold in a used car yard are excluded from the provisions of the Act, as long as the shop complies in other respects.
39 The Tribunal accepts the observations made by counsel that it is probably unusual for a used car yard to occupy less than 1000m2 and it may be that the legislature did not contemplate that used cars would or could be sold from a lot which was less than the prescribed size.
17 At [40], the Tribunal made certain comments suggesting that, in its opinion, the fact that motor vehicle businesses were regulated by specific legislation (the Motor Dealers Act 1974) under which different types of licences were required did not imply that all such businesses fell outside the scope of the RL Act.
18 Having referred at [41] to the requirement in section 33 of the Interpretation Act 1987 that in interpreting statutory provisions, interpretations that promote the purposes or objects of the Act or statutory rule concerned should be preferred, the Tribunal suggested at [42] that the long title of the RL Act did not ‘shed any light on’ this Act’s purpose or object.
19 The Tribunal then stated at [43]:-
However, the Tribunal is persuaded by s.5 of the Act which plainly identifies the types of shops which are not intended to enjoy the protection afforded by the Act. The terms of s.5 suggests that the legislation is not concerned with shops operated by people who have access to what might be considered strong bargaining power. The passage extracted from the second reading speech suggests strongly that one of the purposes of the Act is to put in place a basic system which will facilitate negotiation of leases, provided that they otherwise fall within the definition of the Act. The Tribunal is inclined to accept the submission of the applicant that the Act is intended to promote inclusiveness in respect of the types of retail activities to be covered by the Act, and adds that considered overall, the Act seeks to protect the operators of retail businesses.
20 The Tribunal observed at [44] that ‘in that sense’ the RL Act was ‘beneficial legislation’. At [44 – 45], it cited as authority for this proposition the following statements by Tobias JA in Manly Council v Malouf (2004) 61 NSWLR 394; [2004] NSWCA 299 at 405 [49] and 410 [74]:-
405 [49] His Honour [the trial judge] then noted that the RL Act was “beneficial legislation” and that, although it envisages the possibility of penalties, it should be given a broad construction. He therefore concluded in these terms…:
“It seems to me that any ambiguity in the use of that term should be resolved in favour of giving the possibility of a remedy before a tribunal rather than to deny it, and accordingly I would uphold the submission that the tribunal does have appropriate jurisdiction to hear and determine on its merits the claim brought by Mr Malouf.”
410 [74]… As the primary judge observed, the RL Act was “beneficial legislation”. Accordingly, it should not be construed narrowly.
21 At [46], the Tribunal expressed the view that the phrase ‘second-hand goods shop’ in Schedule 1 was not so ambiguous as to attract the operation of section 34(1)(b)(i) of the Interpretation Act, permitting the Tribunal to take extrinsic material into consideration when interpreting it. The Tribunal then noted, however, that this phrase, when defined in other legislation (for example, the Fair Trading Act 1997 and the Sale of Goods Act 1923) would include vehicles as ‘second-hand goods’.
22 At [47], the Tribunal said:-
The respondent [Minchinbury] argued that the list of businesses in the Schedule evidences a clear intention to exclude motor vehicle sales from the Act. Mr Burchett [representing Minchinbury] said the list specifically identifies the type of business related to motor vehicles which are to be included and that it is limited to “accessories shops”. He referred to the ‘ expressio unius est exclusio alterius ’ rule. I note however, the learned author of Pearce on Statutory Interpretation (6th edition) observes that the rule is applied by the courts with extreme caution and is used more often as a bolster to a predetermined interpretation than as a rule which produces a result in itself: paragraph 4:28.
23 At [50], the Tribunal concluded its reasons as follows:-
50 It follows from the foregoing that in my opinion, the premises in question come within the meaning of the Retail Leases Act. This may be an unintended consequence of the way in which Schedule 1 is drafted, but that is a matter for the legislature.
The question of leave to appeal
24 When commencing these appeal proceedings, Minchinbury filed an Application for Leave to Appeal from an Interlocutory Decision as well as a Notice of Appeal. In the former document, it outlined its grounds for seeking leave to appeal as being (1) that the matter was one of public importance for all used car dealers in New South Wales and (2) that it had not been authoritatively decided.
25 This Application for Leave to Appeal was filed on the assumption that the Tribunal’s decision was an interlocutory one and that leave to appeal was therefore required under section 113(2A) of the ADT Act.
26 Submissions on this issue were filed before the hearing and counsel briefly addressed it at the hearing. We then indicated that, if leave was required, it was granted.
27 As part of our reasons for so ruling, we suggested that the Tribunal’s decision might properly be characterised as final, not interlocutory. We pointed out that if this decision had been to the opposite effect, it would have constituted not only a denial of the Tribunal’s jurisdiction to hear Lifestyle’s application for relief, but also a rejection of any component of this application that depended on the Lease falling within the scope of the RL Act. While leaving it open to Lifestyle to seek remedies against Minchinbury in an appropriate court on grounds not based on this Act, it would (for instance) have required the dismissal of Lifestyle’s unconscionable conduct claim, which is based on section 62B of the Act, without any hearing on the merits.
28 We said further that if, on the other hand, the Tribunal’s decision should be classified as interlocutory, leave to appeal should be granted under section 113(2A) of the ADT Act. Our grounds for this ruling were (a) those outlined by Minchinbury in its Application for Leave to Appeal, (b) the matters set out in the preceding paragraph of these reasons and (c) our belief that the grounds of appeal were, at the least, reasonably arguable.
The issues raised in the appeal
29 In the written submissions for Minchinbury, prepared by Mr Gleeson SC and Mr Kulevski, it was argued that the Tribunal had erred in law in four respects. These alleged errors, upon which Mr Gleeson elaborated at the hearing, were as follows:-
1. It treated Schedule 1 as ‘intended to promote inclusiveness in respect of the types of retail activities to be covered by the Act’ (see its decision at [43]), whereas it should have treated the list of types of business in the Schedule as ‘exhaustive’.
2. Despite referring at [41] to section 33 of the Interpretation Act 1987, it preferred an interpretation of ‘second-hand goods shops’ that did not promote the purpose of the Act over an alternative interpretation that did promote this purpose.
3. Instead of construing ‘second-hand goods shops’ as a composite expression for which a meaning existed in common parlance, the Tribunal construed each of its terms separately, then treated a combination of these meanings as the meaning of the phrase as a whole.
4. It failed to have regard to the history of related legislative provisions, including provisions within Schedule 1 itself.
30 Dr Keogh, counsel for Lifestyle, made submissions opposing each of these arguments. In particular, he argued that the Tribunal’s decision should be upheld because the RL Act was beneficial legislation, which should be construed broadly.
31 It is convenient to discuss each of these matters separately.
Whether the intention of the RL Act is to promote ‘inclusiveness’
32 The parties’ submissions. Mr Gleeson emphasised in this connection that the long title to the RL Act (from which the Tribunal quoted at [42]) stated that it was an Act to ‘make provision with respect to the leasing of certain retail shops…’, not retail shops generally. He pointed to the existence within Schedule 1 of a number of categories of retail businesses that were defined in relatively narrow terms. In consequence, Mr Gleeson argued, the Tribunal erred in stating at [43] that ‘the Act is intended to promote inclusiveness in respect of the types of retail activities to be covered by the Act’ and that ‘considered overall, the Act seeks to protect the operators of retail businesses’. Instead, the list of businesses in the Schedule was to be treated as ‘exhaustive’, even if the RL Act was ‘beneficial legislation’. Any ‘inclusiveness’ in the Act’s coverage of different types of retail business arose from the variety and overall scope of the categories of business listed in Schedule 1. It was therefore incorrect to apply a presumption of ‘inclusiveness’ when interpreting the phrases used to define each of these categories.
33 In putting forward these propositions, Mr Gleeson relied principally on a passage in the judgment of Heydon J in Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260; [2003] HCA 54. Here the High Court held, affirming a decision of the Court of Appeal, that the phrase ‘symptoms and disability’ should be construed conjunctively when used in clause 5 of Schedule 1 to the Victims Support and Rehabilitation Act 1996. This clause allowed payment of compensation to a claimant ‘only if the symptoms and disability persist for more than 6 weeks’. At 269 [33], Heydon J, with whom the other members of the Court agreed, said (footnotes omitted):-
To begin consideration of issues of construction by positing that a "liberal", "broad", or "narrow" construction will be given tends to obscure the essential question, that of determining the meaning the relevant words used require. Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. The numerous injuries set out in the Table to Sch 1 (which extends over twelve pages) are identified with considerable precision. The clauses in Sch 1 which precede the Table, too, are drafted with some attempt at precision. The legislation confers benefits, and no doubt it should not be construed restrictively, but in dealing with specific limited words like those of cl 5, it is not open to apply much liberality of construction. It is difficult to state the legislative purpose except at such extreme levels of generality that it is not useful in construing particular parts of the legislative language. As Spigelman CJ said: "The issue before the Court is the determination of the circumstances in which compensation is payable." The legislation has endeavoured to define these circumstances in precise language which does not permit universal recovery; and hence "[t]he Court is not required to give the most expansive possible interpretation of such circumstances".
34 Mr Gleeson relied also on a Tribunal decision, Tringas v Quach [2007] NSWADT 24, to which a member of the Appeal Panel drew his attention at the hearing. At [39], the Tribunal said with reference to the RL Act:-
There is no question that the Parliament has been [to] some trouble to specify with reasonable particularity the types of business that it wishes to be caught by the Act provided that the premises in which those businesses are situate are also caught by the Act. The amendments made to Schedule 1 by the Retail Leases Amendment Act 2005 plainly support a strong argument that the Parliament was leaning towards particularity and was plainly of the view that certain types of businesses be not caught by the Act.
35 In response, Dr Keogh argued that in the passage quoted by the Tribunal from the second reading speech for the Retail Leases Bill (see our reasons above at [14]) the Minister responsible for the Bill made it clear that the Act, being beneficial legislation, was intended to be ‘inclusive’. Nothing in the long title to the Act contradicted the inference that this was the Act’s purpose, which under section 33 of the Interpretation Act should govern its interpretation even if not expressly stated in it. It followed, Dr Keogh said, that the Tribunal was correct in concluding (see above at [16]) that ‘Plainly, the legislature considered that the provisions of the Retail Leases Act would have a wide operation over a wide variety of shops’.
36 Our conclusions. In our opinion, the propositions within paragraph [43] of the Tribunal’s decision to which Mr Gleeson directed his criticisms do appear, with respect, to pay insufficient heed to the approach actually taken in the RL Act. The listing of specific categories of business in the Schedule is, we think, at odds with any notion that on this matter the Act is intended to be ‘inclusive’. Irrespective of what was said in the second reading speech, the plain words of the Schedule, read in conjunction with section 3, indicate that leases of ‘certain retail shops’ (to quote from the long title) are covered by the Act, but other retail leases are not covered. In our judgment, the passage from Victims Compensation Fund Corporation v Brown on which Mr Gleeson relied requires us to reject any prior assumption of ‘inclusiveness’ in ascertaining the range of retail leases covered by the RL Act.
Whether the Tribunal’s interpretation was ‘non-purposive’
37 The parties’ submissions. In Minchinbury’s written submissions, it was argued that the Tribunal’s interpretation of the phrase ‘second-hand shops’ was ‘non-purposive’ despite the statement in section 33 of the Interpretation Act 1987 that courts and tribunals should prefer interpretations that promote the purpose of the Act being construed. The reason given was that, as the Tribunal itself acknowledged at [39] and [50], it was unusual for a used car yard to occupy less than 1000 square metres (being the maximum area that retail shop premises may have if a lease of them is to fall within the Act: see section 5(a)). Mr Gleeson did not develop this argument to any significant extent at the hearing.
38 In response, Dr Keogh relied on the passage from the second reading speech for the Retail Leases Bill that the Tribunal quoted in its decision (see above at [14]).
39 Our conclusions. We do not believe that a specific purpose such as excluding car sales yards from the purview of the Act can be inferred from the limitation on ‘lettable area’ imposed by section 5(a). A quite different policy basis for this provision was in fact suggested by the Tribunal (see above at [19]). A statutory purpose needs to be more clearly established from the terms of the statute in question if it is to provide the foundation for a submission based on section 33 of the Interpretation Act.
Whether the phrase ‘second-hand goods shops’ should be construed as a composite expression and in accordance with common usage
40 The parties’ submissions. Mr Gleeson placed considerable emphasis on the proposition that where a phrase (such as ‘second-hand goods shops’) is a composite expression, it should be construed as such when it appears in a statute. It is incorrect, he said, to construe each of its terms separately, then to treat a combination of these meanings as the meaning of the phrase.
41 As authority for this proposition, Mr Gleeson relied on the judgment of the High Court’s in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389. At 399-400, the Court discussed in the following terms the decision of the English Court of Appeal in Exxon Corporation v Exxon Insurance Ltd [1982] Ch 119 (footnotes are omitted):-
In Exxon Corporation v Exxon Insurance Ltd , the English Court of Appeal had to consider whether the made-up trade name "Exxon" was an "original literary work" within the meaning of s 2(1) of the Copyright Act 1956 (UK). The Court accepted that it was original, that it was literary in the sense that it was composed of letters and had a written form, and that it was a work because much time and effort had been expended in inventing it. Nevertheless, the Court held that it was not an "original literary work". As Oliver LJ put it [at 144]:
"But 'original literary work' as used in the statute is a composite expression, and for my part I do not think that the right way to apply a composite expression is, or at any rate is necessarily, to ascertain whether a particular subject matter falls within the meaning of each of the constituent parts, and then to say that the whole expression is merely the sum total of the constituent parts. In my judgment it is not necessary, in construing a statutory expression, to take leave of one's common sense".
42 Referring to the matter to be determined in the case before it, the High Court then said:-
Significantly in our opinion, Agfa's argument required the Tribunal to deny itself any recourse to common-sense in construing the expression "silver dye bleach reversal process". While it contended that the Tribunal could rely on the technological background and context in determining the ordinary meaning of the expression construed as a whole, Agfa denied that the Tribunal could inform itself of the trade meaning of some of the words which make up the expression. However, there seems no good reason for denying trade usage a role in determining the meaning of distinct elements of composite phrases where the phrase, taken as a whole, does not have a trade meaning. In an appropriate case, and this is one, such knowledge enables courts and tribunals to tune into the most appropriate "register" for the purposes of statutory interpretation.
43 Mr Gleeson cited also the following dicta of Heydon J in a case already mentioned, Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260; [2003] HCA 54 at 269-270 [34]:-
A composite expression is one which is a compound created of at least elements or integers which is different from each of them. A portmanteau expression combines the meanings of two distinct words to create a new expression.
44 A further case, also mentioned above, that Mr Gleeson cited in this context was Tringas v Quach [2007] NSWADT 24. Among the parts of the Tribunal’s decision that he drew to our attention were (a) two references in paragraph [41] to ‘common parlance’ as the relevant usage when determining the meaning of phrases in Schedule 1 describing categories of retail shop business; (b) the framing (at [42]) of the question ‘If one went into a “games and hobbies shop”, what would one expect to find?’ as the appropriate question to ask when construing the phrase ‘games and hobbies shops’ in the Schedule; and (c) the following dictum (also at [42]):-
The Parliament, when describing types of businesses inserted in Schedule 1, would be looking (no doubt) at the usual and common meaning of the words and what the ordinary person would reasonably think may well be included in a shop from which that described business is being carried out.
45 Relying on these authorities, Mr Gleeson argued that in three passages in its decision, the Tribunal erred in failing to interpret ‘second-hand goods shop’ as a composite expression and adopt the meaning thereby obtained. In the first place, at paragraph [23] it formulated ‘the real question for determination’ as ‘whether or not used cars can properly be called “second hand goods”’. Secondly, at [38] (this paragraph is quoted above at [16]), it characterised as ‘certainly true’ the proposition that ‘the general meaning understood in the community as a “second hand goods” shop is very different from the type of business understood as being a used car yard’, but nonetheless put this ‘general meaning’ aside when deciding how the phrase should be construed. It was significant, according to Mr Gleeson, that in the sentence just quoted it put inverted commas around the words ‘second hand goods’, not around the phrase that it should have interpreted as a composite expression, viz, ‘second hand goods shop’. Thirdly, at [46] the Tribunal spoke of definitions of ‘second hand goods shops’ in the Fair Trading Act 1997 and the Sale of Goods Act 1923 even though this phrase as a whole is not defined within either of those Acts.
46 Mr Gleeson conceded that if the correct approach involved (a) interpreting separately the three terms ‘second-hand’, ‘goods’ and ‘shops’, then (b) bringing together the individual meanings thereby obtained, his client’s appeal must fail. He acknowledged that the vehicles sold by Lifestyle were ‘goods’, that they were sold ‘second-hand’ and that the premises within which they were sold was a ‘shop’.
47 Mr Gleeson argued, however, that the phrase ‘second-hand goods shops’, when considered as a whole, had an acknowledged meaning in common speech which did not include second-hand car sales yards. It was commonly understood to mean shops that almost invariably sold a number of different types of goods, all or virtually all of which were both smaller in scale and less costly than substantial items such as motor vehicles or (as a further example) boats. As instances, he cited shops selling electronics, toys, jewellery, sporting equipment, glassware and/or tableware, all on a second-hand basis. As synonyms for ‘second-hand goods shops’, he suggested ‘opportunity shops’ and ‘op shops’. He submitted further that motor dealerships – whether selling new cars, used cars or both types of car – were well recognised in the community as a wholly distinct species of business.
48 The principal contention raised by Dr Keogh in response was that this line of argument made no allowance for processes of change and evolution in the style and appearance of retailing. In a number of areas of retailing – he cited computers, hardware and clothing – small strip shops were, he said, being superseded by large multi-product stores, with the consequence that consumer expectations regarding the appearance of retail outlets were inevitably changing. It was relevant also that the premises occupied by Lifestyle, being of an area that was small enough to attract the operation of the RL Act, actually constituted only one lot (Lot 10) in a 10-acre complex containing 41 lots. For these various reasons, it was wrong, Dr Keogh argued, to assume that the community would treat ‘second-hand goods shops’ and second-hand car yards as wholly distinct categories of business. Even if these categories of business were separate from each other in the past, they were merging with each other now.
49 Our conclusions. In our judgment, the Tribunal did indeed err through failing to give proper consideration to the question whether the phrase ‘second-hand goods shops’ should be construed as a composite expression. It did so notably in the second of the three passages in its decision that Mr Gleeson identified (see [45] above). The authorities that Mr Gleeson cited establish, in our opinion, that where a phrase in a statute is frequently interpreted in common parlance as a composite expression, the meaning so obtained should be adopted as its statutory meaning unless the statute indicates otherwise, expressly or by implication.
50 At [38], the Tribunal actually expressed the opinion that a ‘general meaning understood in the community’ existed for the phrase ‘second-hand goods shop’, and that this meaning was ‘very different from the type of business understood as being a used car yard’. But it attached little or no weight to this observation when arriving at its conclusion.
51 Mr Gleeson’s submissions regarding the meaning of the phrase ‘second-hand goods shop’ in common parlance (see [47] above) receive support in The Macquarie Thesaurus. In the online edition, among the entries under the heading ‘shop’(No. 657), some synonyms for the phrase ‘second-hand shop’ are provided. The passage reads as follows: ‘family shop (NZ), junk shop, opportunity shop; Informal: Vinnies’. None of these synonyms would include a second-hand car sales business.
52 Furthermore, the list of ‘retail shop businesses’ in Schedule 1 includes several phrases for which the only meaningful interpretation is one that reflects their usage, as composite expressions, in everyday speech. Three examples, already mentioned in these reasons at [9], are the phrases ‘convenience food shops’, ‘general stores’ and ‘mixed business shops’. Their inclusion suggests an intention on the part of the legislature that, as the Tribunal said in Tringas v Quach, one’s attention should focus, when interpreting a phrase in the Schedule, on ‘what the ordinary person would reasonably think may well be included in a shop from which [the relevant] described business is being carried out’.
53 The points made by Dr Keogh in opposing this part of Mr Gleeson’s argument do not, in our opinion, address the key issue, namely, what approach should be adopted when interpreting the phrase ‘second-hand goods shops’. Dr Keogh’s submissions were instead concerned with the undoubted fact that, within a number of categories of retail shops the scope of which is ascertainable through proper construction of Schedule 1, there have in recent years been significant changes in the size and appearance of individual shops.
54 For the foregoing reasons, our conclusions regarding this ground of appeal are as follows. The Tribunal erred in law in failing to give due consideration to the question whether the phrase ‘second-hand goods shops’ should be interpreted as a composite expression bearing a recognised meaning in common parlance. There are good reasons for believing that this is the correct approach. If the Tribunal had adopted this approach, it would have decided (as indeed it acknowledged in its reasons) that the phrase did not include second-hand car sales businesses such as that carried on by Lifestyle.
55 Before ruling finally, however, on the question whether this is in fact the correct approach in the present case, we must deal with the fourth and final ground of appeal and with Dr Keogh’s contention that because the RL Act is beneficial legislation the categories in Schedule 1 must be construed broadly.
What indications, if any, are given by related legislative provisions
56 The parties’ submissions. Minchinbury’s arguments in support of this final ground of appeal were, in summary, that an interpretation of ‘second-hand goods shops’ excluding second-hand car sales yards received implicit support both from (a) other phrases in Schedule 1 of the RL Act and (b) other legislation dealing with the sale of second-hand goods.
57 Within Schedule 1, Mr Gleeson drew our attention to several phrases referring specifically to motor vehicles and other forms of transport. These were the following: ‘batteries shops (other than motor vehicle batteries)’, ‘bicycle accessories shops’, ‘bicycle shops’ and ‘motor vehicle and motor cycle accessories shops (excluding tyre shops and batteries shops)’. Mr Gleeson contended that by the use of the phrases the legislature gave a clear indication as to what range of businesses relating to motor vehicles were intended to fall within the Schedule. By expressly including motor vehicle accessories shops (except for tyre shops and batteries shops), it implicitly excluded other types of business relating to motor vehicles.
58 The legislation of relevance (other than the RL Act) dealing with sales of second-hand goods was, according to Minchinbury’s submissions, the Second-Hand Dealers and Collectors Act 1906, the Pawnbrokers and Second-Hand Dealers Act 1996 and the Pawnbrokers and Second-Hand Dealers Regulation 1997. The important points to note were as follows: (a) motor vehicles were expressly excluded from the ambit of both the Act of 1906 (which was repealed as from 30 April 1997) and the replacement Act of 1996; and (b) in clause 5(1) of the Regulation of 1997, the prescribed classes of ‘second-hand goods’ comprised such goods as jewellery, sporting goods, computers, musical instruments, electronic equipment and motor vehicle accessories, but not motor vehicles.
59 With regard to the phrases identified in Schedule 1, Dr Keogh argued that since the legislature had expressly included motor vehicle accessories shops, the absence of any words expressly excluding motor vehicles from the phrase ‘second-hand goods shops’ should be taken to signify that motor vehicles were not intended to be excluded. If Parliament had intended to exclude them, he said, it could easily have defined the category as ‘second-hand goods shops (other than motor vehicles)’.
60 Dr Keogh also pointed out that because the definition of ‘retail shop’ in section 3 included premises that were used ‘for the carrying on of any business (whether or not a business specified in Schedule 1) in a retail shopping centre’, a second-hand car sales business, if carried on within a retail shopping centre, could qualify as a ‘retail shop’ so long as its lettable area was less than 1000 square metres. The fact that this possibility existed demonstrated, he maintained, that a broad interpretation should be given to the provisions of the RL Act determining its range of application.
61 In response to Minchinbury’s submissions based on other legislation dealing with sales of second-hand goods, Dr Keogh maintained that the Tribunal did (at [46]) take appropriate account of such legislation, while also cautioning (at [34]) against attaching undue weight to the definitions contained in it.
62 Our conclusions. In our opinion, these features of the RL Act and of other legislation do not provide much assistance in interpreting the phrase ‘second-hand goods shops’. The phrases in Schedule 1 referring expressly to motor vehicles can be called in aid to support both the argument made by Mr Gleeson (i.e., that these phrases define fully the extent to which businesses dealing with motor vehicles fall within the Schedule) and the opposing argument made by Dr Keogh (i.e., that the express references to motor vehicles within these phrases suggest that elsewhere in the Schedule motor vehicles are intended to be included unless the contrary is expressly stated). No strong inferences may be drawn from the definitions contained in legislation such as the Pawnbrokers and Second-Hand Dealers Act 1996 because its aims and purposes are entirely different from those of the RL Act.
63 One important conclusion arising from our discussion of the fourth ground of appeal is, however, that it has not brought to light any reason for doubting the approach to interpretation that we have held, following discussion of the third ground, to be at least presumptively correct.
The beneficial character of the RL Act
64 In arguing that because the RL Act was ‘beneficial’ legislation the phrases in Schedule 1 defining ‘retail shop businesses’ should be construed broadly, Dr Keogh relied on three authorities: Malouf (t/as Fusion Point) v Manly Council [2004] NSWSC 24, Manly Council v Malouf (2004) 61 NSWLR 394; [2004] NSWCA 299 and Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48. He drew our attention to the following aspects of these cases.
65 In Malouf (t/as Fusion Point) v Manly Council, the question to be resolved was whether an outdoor eating area, located on a public footpath and adjacent to a restaurant on private land, could be ‘premises’ within the meaning of the definition of ‘retail shop lease’ even though nothing in the nature of a building had been constructed upon it. In the Supreme Court, Shaw J, on appeal from an Appeal Panel of this Tribunal, held that the area in question did constitute ‘premises’. His judgment included the following passages at [20] and [22]:-
20 This is beneficial legislation designed to provide rights to the citizens to agitate issues before the relevant tribunal. Although it also encompasses the possibility of penalties, it is my view that it should be given a broad construction by the courts.
22 It seems to me that any ambiguity in the use of [the term ‘premises’] should be resolved in favour of giving a possibility of a remedy before a tribunal rather than to deny it, and accordingly I would uphold the submission that the tribunal does have appropriate jurisdiction to hear and determine on its merits the claim brought by Mr Malouf.
66 In Manly Council v Malouf, the Court of Appeal overturned this decision by Shaw J. At 405 [49] and 410 [74], Tobias JA (with whom Mason P agreed) made the observations that the Tribunal reproduced in its judgment (see [20] above). In addition, at 406 [54], he summarised in the following terms a submission put by the respondent to the appeal:-
Further, if the legislature had intended that a "retail shop" could only be within a building or similar structure, it would not have used the word "premises" but would have made its intention clear. The fact that it did not indicates that the word "premises" was to have a broad connotation and was not to be confined to an area within a building or other structure.
67 At 411 [80], his Honour said:-
The definition of "retail shop lease" is concerned with the occupation of premises for a particular purpose. The definition of "retail shop" is also principally concerned with the use of the premises for the carrying on of one or more of the businesses described in Sch 1. On one view, provided that the premises are occupied for the purpose of the relevant use and that use is wholly or predominantly for the carrying on of a Sch 1 business, it matters not whether it is carried on within a building or other structure or upon a vacant parcel of land. When one considers the provisions of the RL Act, they are generally concerned with the conditions of the agreement constituting the retail shop lease by either deeming provisions to be included in the lease or rendering conditions void which contravene the relevant provisions of the Act.
68 In Minister Administering the Crown Lands Act v NSW Aboriginal Land Council, the High Court unanimously dismissed an appeal from the New South Wales Court of Appeal in proceedings in which the interpretation of the phrase ‘not lawfully used or occupied’ within section 36(1)(b) of the Aboriginal Land Rights Act 1983 was in issue. In his separate judgment at [1 – 21], Kirby J placed substantial emphasis on the importance of interpreting beneficial and remedial legislation, such as this Act, in a manner which will promote, rather than frustrate, its evident purposes and objectives. At [2], he stated that an approach which involved taking the context and purpose of an Act into account was ‘not limited to cases where the text appears on its face to be ambiguous’. At [3 – 4], he stressed the importance of addressing the ‘mischief’ perceived in beneficial legislation when dealing with cases where ‘different literal interpretations’ of the text are ‘available to the decision-maker’.
69 Dr Keogh argued that, in view of these statements of high judicial authority, a broad interpretation of the phrase ‘second-hand goods shops’ was mandatory. Without such an approach, he said, the beneficial and remedial purposes of the RL Act would not be adequately served. The purposes in question, in his submission, were those outlined in (a) the second reading speech for the Bill, from which the Tribunal quoted in its decision at paragraph [20], and (b) paragraphs [43] and [44] of this decision (the relevant passages are set out above at [14], [19] and [20]).
70 In responding to these contentions, Mr Gleeson made the following points. First, the statements of general principle made by Tobias JA in Manly Council v Malouf were dicta only and were not sufficient to persuade him (or indeed the other members of the Court of Appeal) that the term ‘premises’ in section 3 of the RL Act should be construed sufficiently broadly to include an outdoor eating area with no building or other comparable structure. Both Tobias JA (at 412 [81 – 86]) and Handley JA (at 398-399 [19 – 21]) took account of a number of other provisions of the Act that ‘clearly contemplate that the “retail shop” is situated or located in a building’ (to quote from Tobias JA at 412 [86]). Secondly, in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council, the statements made by Kirby J, emphasising the importance of construing beneficial legislation in a manner that will promote its objectives, were not believed by the other members of the High Court (Hayne, Heydon, Crennan and Kiefel JJ) to be relevant to the Court’s decision. They said, at [48], that it was ‘not necessary to invoke some principle of “beneficial construction” to resolve the issue this case’. Thirdly, the principles stated by Heydon J in Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260; [2003] HCA 54 on which Mr Gleeson relied in advancing the first ground of the appeal (see [33] above) were expressly said by his Honour to be applicable even though the purpose of the Act being construed was ‘beneficial’. Fourth and finally, even though the legislature undoubtedly passed the Act with a view to improving the legal regime governing retail leases, the Act evinces a clear intention that not all retail leases are to be brought under this regime. This is evident from the long title and from the approach taken in section 3 and Schedule 1 to defining ‘retail shop lease’.
71 Our conclusions. A notable feature of the arguments put to us on this question is that they did not address an evident discrepancy between the Tribunal’s view (in its decision in this case) and the views of the Supreme Court and the Court of Appeal (in the Malouf litigation) as to why the RL Act should be regarded as beneficial legislation. The Tribunal, taking its lead from the second reading speech, said (at [43] and [44]) that ‘considered overall’ it was because the Act sought ‘to protect the operators of retail businesses’. On the other hand, the Supreme Court focused on the Act’s role in providing ‘rights to the citizens to agitate issues before the relevant tribunal’: see Shaw J’s observations in Malouf (t/as Fusion Point) v Manly Council [2004] NSWSC 24 at [20], [22]. The Court of Appeal seemed to agree that this was a reason for treating the Act as ‘beneficial’ and did not mention any other reason: see the comments of Tobias JA in Manly Council v Malouf (2004) 61 NSWLR 394; [2004] NSWCA 299 at 405 [49] and 410 [74]. Section 75(2) of the Act does indeed refer to ‘the general principle that retail tenancy disputes should be dealt with by the Tribunal rather than by a court’.
72 In more general terms, we incline to the opinion, as we indicated to counsel during the hearing, that the intent of the RL Act is to alter pre-existing common law and statutory principles relating to retail leases in ways that will benefit both lessors and lessees. The benefits that it confers include, as Shaw J noted, the availability of a tribunal to resolve retail tenancy disputes. To treat the protection of retail tenants as the only beneficial purpose underlying the Act is to take an unduly narrow view of what it seeks to achieve.
73 In resolving the specific question raised in this appeal, it is accordingly important for us to take account of the fact that the consequences of allowing the appeal would include denying to the parties (a) the opportunity to seek a resolution of their dispute within the Tribunal and (b) such other benefits as the legal regime established by the Act must be taken to confer on retail lessors and lessees.
74 We must observe the principle that, as Tobias JA said in Manly Council v Malouf at 410 [74], ‘beneficial legislation… should not be construed narrowly’. But this does not mean that other principles of statutory construction must be put to one side when they would or might produce a different outcome.
75 The actual decision of the Court of Appeal in Manly Council v Malouf amply illustrates this point. Further authority is to be found in the passage that we quoted above at [33] from the judgment of Heydon J (with whom the other members of the High Court agreed) in Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260; [2003] HCA 54 at 296 [33]. The following statements made within this passage bear specifically on the question now being canvassed:-
Although the purpose of the Act [the Victims Support and Rehabilitation Act 1996] is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. The numerous injuries set out in the Table to Sch 1 (which extends over twelve pages) are identified with considerable precision. The clauses in Sch 1 which precede the Table, too, are drafted with some attempt at precision. The legislation confers benefits, and no doubt it should not be construed restrictively, but in dealing with specific limited words like those of cl 5, it is not open to apply much liberality of construction.
76 Both the long title to the RL Act and the approach taken in section 3 and Schedule 1 to defining ‘retail shop lease’ make it clear that not all retail leases are intended to fall within the legal regime created by the Act. The Act does not indicate expressly or by implication that it covers all leases of premises that are granted for the purpose of conducting a retail business. It does not adopt the methodology of stating that all such leases are covered except where the business to be carried on falls within one or more of a number of defined categories. Instead, the methodology adopted is that of providing that unless a business falls within one or more of the categories set out in Schedule 1, the relevant lease will not be a ‘retail shop lease’. As is apparent from the illustrative list in paragraph [9] of these reasons, many of the categories are formulated in quite narrow terms.
77 By virtue of these aspects of the relevant provisions in the RL Act, we consider that the dicta of Heydon J that we have just quoted apply to the present case. Although the RL Act is ‘beneficial legislation’, in the sense that we have attempted to define, the words used in defining specific categories of ‘retail shop business’ in Schedule 1 must be interpreted according to principles that are appropriate to their particular nature and their statutory context, and without undue ‘liberality of construction’.
78 We said above (at [54]) that there were ‘good reasons for believing’ that the correct approach to interpreting the phrase ‘second-hand goods shops’ in Schedule 1 involved treating it as ‘a composite expression bearing a recognised meaning in common parlance’. We added that, so interpreted, the phrase does not include second-hand car sales businesses such as that carried on by Lifestyle. Instead, it means the types of business that are described in the synonyms set out in The Macquarie Thesaurus: for example, ‘junk shop’ or ‘opportunity shop’.
79 In the ensuing paragraphs of these reasons, we have considered various arguments – notably those based on dicta describing the RL Act as beneficial legislation – that might have persuaded us to reject this ‘presumptively correct’ approach to interpretation. Those arguments have not prevailed.
80 Accordingly, we conclude that the phrase ‘second-hand goods shops’ in Schedule 1 does not include second-hand car sales businesses such as that carried on by Lifestyle at the premises. It follows that the Tribunal lacks jurisdiction to determine the application lodged in the Tribunal by Lifestyle. Regrettably, it must pursue such claims as it has against Minchinbury in another forum.
81 Our formal orders giving effect to this conclusion are as follows:-
(a) The appeal is allowed.
(b) The order made by the Tribunal in its decision dated 7 July 2008 is set aside and the following order is substituted: ‘The application instituting these proceedings is dismissed on the ground of lack of jurisdiction.’
Costs
82 Under section 77A of the RL Act and section 88 of the ADT Act in its current form, costs may be awarded in appeal proceedings such as these, but only if there are ‘special circumstances warranting an award of costs’.
83 This appeal, which we have allowed, has not been easy to resolve. One consequence of this is that it does not fall within a well-recognised category of ‘special circumstances’ – namely, where a party to proceedings has persisted with an unmeritorious claim or defence.
84 There may, however, be relevant considerations of which we are not aware. We accordingly give the following directions on the matter of costs:-
Any application for costs in these appeal proceedings must be filed and served, with supporting submissions, within 28 days of the date of this decision. The opposing party must file and serve submissions in reply within a further 28 days. Unless reasons are advanced for a hearing to be conducted, the matter will be resolved ‘on the papers’, pursuant to section 76 of the ADT Act.
2
7
12