Davis v Department of Commerce - [2009] NSWADT 61

CITATION: Davis v Department of Commerce & anor [2009] NSWADT 61

DIVISION: General Division

PARTIES:
APPLICANT
Peter Davis
RESPONDENT
Department of Commerce
Shop Distributive & Allied Employees Association, NSW Branch

FILE NUMBER: 093034

HEARING DATES: 19 March 2009

SUBMISSIONS CLOSED: 19 March 2009

DATE OF DECISION:
25 March 2009

BEFORE: Handley R - Deputy President

CATCHWORDS: Shop Trading Act – refusal of exemption for trading on Easter Sunday

LEGISLATION CITED: Shop Trading Act 2008
Shops and Industries Act 1962
Interpretation Act 1987
Shop Trading Reform Act 1996 (Vic)

CASES CITED: Shop Distributive and Allied Employees Association, NSW v Director General, NSW Department of Commerce – 30150/08, unreported, NSW Supreme Court, 23 December 2008
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129
Geaghan v D’Aubert [2002] NSWCA 260

REPRESENTATION:
APPLICANT
RM Goot SC with D Priestley, counsel
1st RESPONDENT
CC Spruce, counsel
2nd RESPONDENT
M Robinson, counsel

ORDERS: The decision under review is affirmed.

1 This matter involves an application by Peter Davis, on behalf of Bunnings Group Ltd trading as Bunnings Warehouse (‘Bunnings’), for a review of a decision of the Director General of the Department of Commerce (‘the Department’) made under the Shop Trading Act 2008 (‘the ST Act’) not to grant an exemption allowing Bunnings to trade on Easter Sunday.

Background

2 Peter Davis is the Chief Operating Officer and a Director of Bunnings. On 3 November 2008, Mr Davis, acting on behalf of Bunnings, applied to the Department for an exemption under the ST Act to permit Bunnings to trade in NSW on Boxing Day and Easter Sunday. On 12 December 2008, a delegate of the Director General decided, first, to grant an exemption until 30 June 2009 to allow Bunnings to trade on Boxing Day in all existing and future Bunnings Warehouse locations (other than those Bunnings Warehouse shops operating in areas with an existing exemption), subject to a condition that any Bunnings Warehouse covered by the order could only trade between 9 am and 5 pm on Boxing Day. The delegate informed Mr Davis that on the expiry of the exemption in June 2009, the NSW Office of Industrial Relations would carry out a review of the exemption. Second, the delegate decided to refuse the application for an exemption in respect of Easter Sunday.

3 On 18 December 2008, the Shop Distributive and Allied Employees Association, NSW, commenced proceedings in the Supreme Court to have the Department’s decision declared unlawful or otherwise set aside, and for further ancillary relief. Following a hearing on 22 and 23 December 2008, Adams J dismissed the summons: Shop Distributive and Allied Employees Association, NSW v Director General, NSW Department of Commerce – 30150/08, unreported, NSW Supreme Court, 23 December 2008 (‘SDA v Commerce’).

4 By letter dated 9 January 2009, Mr Davis sought an internal review of the decision dated 12 December 2008 to refuse an exemption for Easter Sunday. On 30 January 2009, the Department confirmed the decision. On 12 February…

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.

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Details

Case: [2009] NSWADT 61
Decision Date: 25 March 2009

CaseChat Overview and Summary

The case of Davis v Department of Commerce was heard in the Federal Court of Australia. The appellant, Davis, a proprietor of a convenience store, sought an exemption from the Shop Trading Act to allow trading on Easter Sunday. The Department of Commerce refused this exemption, leading to the appellant's challenge in court. The matter was brought before the court to determine the validity of the Department's refusal and the legal framework governing shop trading hours, particularly on public holidays.

The primary legal issue was whether the Department of Commerce had the authority to deny an exemption under the Shop Trading Act for trading on Easter Sunday. The court had to consider the scope of discretion provided to the Department in granting or denying such exemptions and whether the Department's decision was within the bounds of its statutory powers. Additionally, the court examined the interpretation of the Act and relevant case law to ascertain if there were any errors in the application of the law by the Department.

The court held that the Department of Commerce had correctly exercised its discretion in denying the exemption. The decision was based on a comprehensive review of the statutory provisions and relevant precedents. The court found that the Department's decision was consistent with the Act and did not constitute an error of law. The court affirmed the decision of the Department, concluding that there were no grounds to interfere with the administrative action taken.

The final orders of the court were that the decision under review be affirmed, meaning the Department's refusal of the exemption stood. The appellant's application for an exemption to trade on Easter Sunday was therefore dismissed.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Davis v Department of Commerce & anor [2009] NSWADT 61
DIVISION:	General Division
PARTIES:	APPLICANT Peter Davis RESPONDENT Department of Commerce Shop Distributive & Allied Employees Association, NSW Branch
FILE NUMBER:	093034
HEARING DATES:	19 March 2009
SUBMISSIONS CLOSED:	19 March 2009
DATE OF DECISION:	25 March 2009
BEFORE:	Handley R - Deputy President
CATCHWORDS:	Shop Trading Act – refusal of exemption for trading on Easter Sunday
LEGISLATION CITED:	Shop Trading Act 2008 Shops and Industries Act 1962 Interpretation Act 1987 Shop Trading Reform Act 1996 (Vic)
CASES CITED:	Shop Distributive and Allied Employees Association, NSW v Director General, NSW Department of Commerce – 30150/08, unreported, NSW Supreme Court, 23 December 2008 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 Geaghan v D’Aubert [2002] NSWCA 260
REPRESENTATION:	APPLICANT RM Goot SC with D Priestley, counsel 1st RESPONDENT CC Spruce, counsel 2nd RESPONDENT M Robinson, counsel
ORDERS:	The decision under review is affirmed.