Chambers Pty Limited v State of New South Wales

Case •

[2010] NSWSC 271

•

12 April 2010

No judgment structure available for this case.
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:

          “1. A declaration that the Plaintiff, as holder of packaged liquor licences under the Liquor Act 2007 (NSW), may sell liquor by retail in sealed containers on the licensed premises, for consumption away from the licensed premises, during the period 10 am to 10 pm on Easter Sunday, 4 April 2010.
          2. A declaration that upon the true and proper construction of the Shop Trading Act 2008 (NSW) the Plaintiff, as holder of packaged liquor licences issued under the Liquor Act 2007, is not subject to the trading restrictions contained in Part 2 of the Shop Trading Act 2008 (NSW).
          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 issue with which the Court was concerned was the interaction of the Shop Trading Act 2008 and the Liquor Act 2007. Each Act commenced on 1 July 2008, though the Liquor Act was assented to in December 2007, and the Shop Trading Act on 30 June 2008.


      Liquor Act 2007

8 The provisions of the Liquor Act primarily relevant to this matter are as follows:


      (a) The long title, which states:
              “An Act to regulate and control the sale and supply of liquor and the use of premises on which liquor is sold or supplied; to repeal the Liquor Act 1982; and for other purposes.”

      (b) Section 7(1) , which provides:
              “(1) A person must not sell liquor unless the person is authorised to do so by a licence.
              Maximum penalty: 100 penalty units or imprisonment for 12 months, or both.”

      (c) Section 10, which provides that various types of licences may be granted and held under the Liquor Act , including s 10(1)(d) “Packaged liquor licence” and that
          (2) A licence authorises the licensee to sell or supply liquor in accordance with this Act and the conditions of the licence.
          (3) The authorisation conferred by a licence is subject to this Act and the regulations.

      (d) Section 29, which provides, so far as is relevant:
              “(1) A packaged liquor licence authorises the licensee to sell liquor by retail in sealed containers on the licensed premises, for consumption away from the licensed premises only:
              (a) during the standard trading period or such other period as may be authorised by an extended trading authorisation, or
              (b) in the case of any Sunday that falls on 24 December—from 8 am (or such earlier time as may be authorised by an extended trading authorisation) to midnight on that day.
              (2) Despite subsection (1), a packaged liquor licence does not authorise the licensee to sell liquor by retail on a restricted trading day.”

      (e) Section 12(1), which provides:
              “For the purposes of this Act, the standard trading period means:
              (a) for any day of the week other than a Sunday:
                  (i) the period from 5 am to midnight, or
                  (ii) if the regulations prescribe a shorter period—the period as so prescribed, and
              (b) for a Sunday:
                  (i) the period from 10 am to 10 pm, or
                  (ii) if the regulations prescribe a shorter period—the period as so prescribed.”


      (f) Section 4 of the Liquor Act, which defines “restricted trading day” as “means Good Friday or Christmas Day” and “Trading hours of licensed premises” means “the times during which, subject to this Act and the conditions of the licence, sale or supply of liquor on the premises is authorised”.

      Shop Trading Act 2008

9 The provisions of the Shop Trading Act primarily relevant to this matter are as follows:


      (a) The long title, which states:
              “An Act with respect to the fair regulation of shop opening hours and restricted trading days, to repeal the Shop and Industries Act , 1962 and to make consequential amendments to other Acts.”

      (b) Section 3(1), which defines:
              “ restricted trading day as means Good Friday, Easter Sunday, Anzac Day (but only before 1pm), Christmas Day or Boxing Day.”

      (c) Section 4, which provides:
              (1) All shops must be kept closed at the following times:
              (a) at all times on Good Friday,
              (b) at all times on Easter Sunday,
              (c) at all times before 1pm on Anzac Day,
              (d) at all times on Christmas Day,
              (e) at all times on Boxing Day.
          (2) This section is subject to any exemption of a shop from the requirements of this Act under Part 3.”

      (d) Section 5(1), which provides:
              “An occupier of a shop must keep the shop closed on a restricted trading day in accordance with section 4.
              Maximum penalty: 100 penalty units.”

      (e) Section 3, which defines “shop” as:
              “ means premises:
              (a) that are used wholly or predominantly for the retail sale of goods, and
              (b) in or at which goods are sold or exposed or offered for sale by retail on one or more occasions.”

      (f) Section 7, which provides:
              “A shop is exempted from a requirement under this Act to be kept closed if its predominant business is a business of a kind specified in Schedule 1.”


      (g) Section 8, which provides an exemption for “small shops”.

      (h) Section 9, which provides:
              “ Certain licensed premises exempt
              This Act does not apply to premises in respect of which a hotel licence is in force, by reason only of the sale or exposing or offering for sale, in or on those premises, of liquor as defined by the Liquor Act 2007 or of meals or refreshments.”

      (i) Schedule 2 cl 5, which provides:
              “ Reference to Liquor Act 2007
              If this Act commences before the commencement of the Liquor Act 2007 and until the commencement of that Act, the references in section 9 to:
              (a) a hotel licence is to be construed as a reference to a hotelier’s licence within the meaning of the Liquor Act 1982 , and
              (b) to the Liquor Act 2007 is to be construed as a reference to the Liquor Act 1982 .”

10 A printout dated 22 March 2010 of licence details for one of the plaintiff’s shops contained an entry in the following terms:

          “ Trading hours
          Retail sales
          Monday to Saturday - 5.00 am to 12.00 midnight;
          Sunday - 10.00 am to 10.00 pm;
          Good Friday - not permitted;
          December 24 - normal trading Monday to Saturday 8.00 am to 12.00 midnight Sunday;
          Christmas Day – not permitted;
          December 31 – normal trading.”

      Submissions

11 The plaintiff’s case, in essence, was that it had a statutory right, an authority conferred by the Liquor Act in association with its various packaged liquor licences, to be able to trade on days including Easter Sunday. It was conceded the authorisation may be affected by other regulations or legislation. The Shop Trading Act, as a later general provision, did not have operation in the area to which the Liquor Act expressly conferred authority as to trading hours. Reliance was placed upon principles referred to in Anthony Hordern & Sons Limited v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7, Bruton Holdings Pty Limited v Commissioner of Taxation of the Commonwealth of Australia (2009) 239 CLR 346 and Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566. The plaintiff accepted that the retail liquor stores in respect of which it held packaged liquor licences were within the definition of “shop” in the Shop Trading Act, s 3.

12 The defendant’s case, in essence, was that the Liquor Act prohibited the sale of liquor and that a licence may be granted by way of exemption from that prohibition rather than that there be any notion of statutory rights of a positive form being granted. The Liquor Act and licences issued thereunder could not be read as an absolute statutory entitlement which could not be derogated from in any other sphere of regulation. The Liquor Act and the Shop Trading Act do not have the same subject matter, purpose or scope. They are intended to operate in accordance with their terms. Cases such as Anthony Horderns, Bruton and Nystrom have no application. It was apparent from the terms of the Shop Trading Act that it was Parliament’s intention that the Shop Trading Act apply to all shops including retail liquor shops, unless exempted under Pt 3 of the Shop Trading Act. The defendant acknowledged it was not its case that there was an implied repeal of the Liquor Act by the Shop Trading Act; rather each Act was to operate according to its terms.


      Consideration

13 The defendant submitted that the Shop Trading Act was concerned with the closure of shops. Its function was to deal primarily with industrial relations concerns, the unfairness and social detriment of forcing employees to work on public holidays or at other specified times. This was made clear by its provisions particularly ss 10(2)(d) and 13 of the Shop Trading Act, the Second Reading Speech and the legislative history – see Bridge v Natoli (1963) AR 75 at 78 where Sheehy J said:

          “Restrictions on the trading hours of shops have long formed part of the industrial laws of this State; their general purpose is to protect employees against the evils of excessive hours of work and to ensure that all traders in the various classes of shops are placed on an equal footing.”

14 I accept the defendant’s submission, which does not appear to be the subject of any significant challenge.

15 The defendant submitted the purpose of the Liquor Act was to regulate and, in some cases, prevent the sale of liquor. Its function was to deal with the “evils” of liquor. It was not concerned with the evils or benefits in opening or closing of shops. There were no provisions such as ss 10(2)(d) or 13 of the Shop Trading Act in the Liquor Act. The submission was supported by reference to many passages in the Liquor Act, its long title, legislative history, explanatory note and Second Reading Speech.

16 The plaintiff submitted the expression “use of premises” in the long title to the Liquor Act was a reference to the opening of premises. The context is, however, “An Act to regulate and control the sale and supply of liquor and the use of premises…” and is to be properly understood as dealing with the type of matters referred to in, for example, s 74 of the Liquor Act rather than the opening of premises. The opening of premises is not among the objects listed in s 3 of the Liquor Act.

17 I accept the defendant’s submission as to the purposes of the Liquor Act.

18 The plaintiff submitted there are two Acts of Parliament which must, according to ordinary construction, be reconciled if they can and they can in a way that excludes the later general prohibition from application in one particular area, namely the area which is precisely regulated by the Liquor Act enacted only six months before and commenced on precisely the same day.

19 The defendant submitted this was not a case like Hordern where a general power was conferred by one part of an Act but a specifically contained power was conferred by another part of the same Act. This was a case where two different pieces of legislation, with very different objects, run together and do not, in that sense, interfere with each other. The situation is well outside any of the categories that would bring it within the principles in Hordern, Bruton or Nystrom.

20 I accept the defendant’s submissions. Principles of construction are no substitute for consideration of the whole of the particular text and of its subject, scope and purpose – Nystrom at [54].

21 The Shop Trading Act is very specific legislation. It deals solely with the closing of shops on specific days of the year and matters ancillary thereto. Its function and purpose include, in particular, the matters set out in ss 10(2)(d) and 31. These are matters of importance. The Liquor Act does not deal with them. The Shop Trading Act identifies which shops can open for trade. The Liquor Act allows shops, which are otherwise lawfully entitled to open for trade, to retail liquor, subject to the limitations imposed in s 29. In my opinion, the application of the Shop Trading Act is not limited or excluded by the Liquor Act.

22 A consideration of the text of the Shop Trading Act confirms the legislative intent that retail liquor stores are subject to the Shop Trading Act.

23 Section 4 applies, in terms, to “all shops” subject to exemption under Pt 3. Retail liquor stores fall within the definition of “shop” in the Shop Trading Act. Section 7 exempts businesses of the kind specified in Sch 1. Schedule 1 contains a specific list of 20 types of shop which are exempted. Retail liquor shops are not included in the list.

24 Section 8 exempts “small shops”. This includes some retail liquor shops.

25 Section 9 provides:

          “ Certain licensed premises exempt
          This Act does not apply to premises in respect of which a hotel licence is in force, by reason only of the sale or exposing or offering for sale, in or on those premises, of liquor as defined by the Liquor Act 2007 or of meals or refreshments.”

26 The plaintiff submits the purpose of s 9 is to make it clear that a hotel is not to be considered as a shop, and to avoid doubt in that regard. It observed a provision similar to s 9 Shop Trading Act was contained in the Shops and Industries Act 1962, s 101(b). It was submitted that provision was directed to the status of hotels and was reflected in the present s 9.

27 However, s 9 is by way of an exemption from the Shop Trading Act. The heading to the section confirms that this is so. Section 9 is found in Pt 3, which is headed “Exemption” and is by way of an exception to s 4(1). The exemption is referred to in s 4(2) which provides:

          “This section is subject to any exemption of a shop from the requirements of this Act under Part 3.”

28 An exemption from s 4(1) would be unnecessary if the plaintiff’s contention that the Shop Trading Act did not apply to liquor shops was correct.

29 The defendant’s construction is supported historically. Section 122 of the Factories and Shops Act 1912-1962 provided:

          “Nothing in Division 2 or in Division 3 of this Part of this Act shall apply to:-
      …
          (b) Any premises in respect of which a Publican’s license is in force.”

30 In McDonald’s Liquor Laws of New South Wales, 3rd ed., 1965 at p 425 the authors commented in relation to s 122:

          “This Part’ is Part VI of the Act. Division 2 relates to the registration of shops and Division 3 regulates the opening and closing hours of shops…
          ‘Shop’ is defined in this Act as ‘any building or place, or portion of any building or place, in which goods are exposed or offered for sale by retail’. It would seem, therefore, that except as exempted by this section the general provisions of this Act apply to licensed premises.

31 Schedule 2 cl 5 provides:

          “ Reference to Liquor Act 2007
          If this Act commences before the commencement of the Liquor Act 2007 and until the commencement of that Act, the references in section 9 to:
          (a) a hotel licence is to be construed as a reference to a hotelier’s licence within the meaning of the Liquor Act 1982 , and
          (b) to the Liquor Act 2007 is to be construed as a reference to the Liquor Act 1982 .”

32 Clearly, Parliament had directed its mind specifically to the Liquor Act when considering the Shop Trading Act. This is apparent from the terms of s 9 and Sch 2 cl 5 of the Shop Trading Act. The Acts commenced on the same day. Had Parliament intended that the Shop Trading Act not apply to retail liquor shops, it could have added retail liquor shops to Sch 1, exempted retail liquor shops in s 9 or added a further section to Pt 3 of Liquor Act. Parliament did none of these things. It legislated that all shops should be subject to the Shop Trading Act unless exempted. The only premises licensed under the Liquor Act which it exempted were those in respect of which a hotel licence was in force. It should be inferred Parliament did not intend to exempt shops licensed under the Liquor Act from the operation of the Shop Trading Act.

33 The provisions of the Shop Trading Act, in my opinion, apply to retail liquor shops, unless exempted under Pt 3 of the Shop Trading Act.

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