Chambers Pty Limited v State of New South Wales - [2010] NSWSC 271

CITATION: Chambers Pty Limited v State of New South Wales [2010] NSWSC 271

HEARING DATE(S): 31 March, 1 April 2010

JUDGMENT DATE :
12 April 2010

JURISDICTION: Common Law Division

JUDGMENT OF: Hislop J

DECISION: 1. Summons dismissed.
2. Plaintiff to pay the defendant's costs.

LEGISLATION CITED: Shop Trading Act, 2008
Liquor Act, 2007

CASES CITED: Anthony Hordern & Sons Limited v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Bruton Holdings Pty Limited v Commissioner of Taxation of the Commonwealth of Australia (2009) 239 CLR 346
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566
Bridge v Natoli (1963) AR 75

TEXTS CITED: McDonald's Liquor Laws of New South Wales, 3rd ed., 1965

PARTIES: Steven Chambers Pty Limited (Plaintiff)
State of New South Wales (Defendant)
Shop, Distributive Allied Employees Association (Intervenor)

FILE NUMBER(S): SC 2010/78495

COUNSEL: R.P.L. Lancaster SC/M. Painter (Plaintiff)
N.J. Beaumont (Defendant)
A. Rogers (amicus curiae)

SOLICITORS: Herbert Geer (Plaintiff)
Crown Solicitor (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

Monday 12 April 2010

2010/78495 STEVEN CHAMBERS PTY LIMITED v STATE OF NEW SOUTH WALES

REASONS FOR JUDGMENT
Introduction

1 The Shop Trading Act, 2008, s 4, provides that, subject to exemptions under Pt 3 of that Act, all shops must be kept closed at all times on, inter alia, Easter Sunday.

2 The plaintiff, the operator of a number of retail liquor stores and the holder of packaged liquor licences under the Liquor Act, 2007, s 10 (or its predecessor) in respect of those stores, desired to trade on Easter Sunday 2010.

3 In November/December 2009 it unsuccessfully sought exemptions under Pt 3 of the Shop Trading Act.

4 On Monday 29 March 2010 it filed a summons seeking the following orders:

Liquor Act 2007

Shop Trading Act 2008

Liquor Act

3. Costs.”

5 The plaintiff obtained an order for short service of the summons on the defendant and an order that the hearing of the summons be expedited and listed, before me, as Duty Judge, for hearing on Wednesday 31 March 2010.

6 I heard the matter on 31 March 2010 and 1 April 2010 and, because of its urgency, gave my decision on the latter day. The summons was dismissed with costs. I reserved the publication of my reasons to a later time. These are the reasons for dismissal of the summons.

Background

7 The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chambers Pty Limited v State of New South Wales

Details

AGLC: Chambers Pty Limited v State of New South Wales [2010] NSWSC 271
Case: [2010] NSWSC 271
Decision Date: 12 April 2010

CaseChat Overview and Summary

The plaintiff, Steven Chambers Pty Limited, sought a declaration that it could sell liquor by retail in sealed containers on Easter Sunday, 4 April 2010, and that it was exempt from the trading restrictions contained in the Shop Trading Act 2008. The defendant, the State of New South Wales, opposed the summons, arguing that the plaintiff was not entitled to trade on Easter Sunday. The plaintiff had previously sought an exemption under the Shop Trading Act but was unsuccessful. The case raised issues concerning the interaction between the Shop Trading Act 2008 and the Liquor Act 2007.

The court considered whether the plaintiff was entitled to trade on Easter Sunday despite the restrictions in the Shop Trading Act. The plaintiff argued that it had a statutory right to trade, as conferred by the Liquor Act, and that the Shop Trading Act did not apply to retail liquor shops. The defendant contended that the Shop Trading Act applied to all shops, including retail liquor shops, unless exempted under Pt 3 of the Shop Trading Act. The court found that the Shop Trading Act applied to all shops, and the plaintiff's retail liquor shops were not exempt. The court noted that the purpose of the Shop Trading Act was to regulate shop opening hours and protect employees from excessive working hours, while the Liquor Act was concerned with regulating the sale and supply of liquor. The court concluded that the two Acts had different purposes and scope and did not interfere with each other.

The summons was dismissed, and the plaintiff was ordered to pay the defendant's costs. The court found that the plaintiff was not entitled to trade on Easter Sunday, and the provisions of the Shop Trading Act applied to its retail liquor shops. The court also noted that Parliament had considered the Liquor Act when drafting the Shop Trading Act and had not intended to exempt shops licensed under the Liquor Act from the operation of the Shop Trading Act. The plaintiff's retail liquor shops were not exempted under Pt 3 of the Shop Trading Act and were therefore subject to its restrictions.

Orders