Fuller v Beach Petroleum NL
[1993] FCA 453
•09 JULY 1993
ATTORNEY-GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY ON THE RELATION OF
OLASEAT PTY LIMITED v. THE AUSTRALIAN CAPTAL TERRITORY MINISTER FOR THE
ENVIRONMENT, LAND AND PLANNING; THE AUSTRALIAN CAPITAL TERRITORY and THE
ROTARY CLUB OF CANBERRA, BELCONNEN INCORPORATED
No. ACTG50 of 1992
FED No. 453
Number of pages - 16
Trade and Commerce - Equity
(1993) 115 ALR 161
(1993) 43 FCR 329
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Black CJ(1), Gallop(1) and Hill(1) JJ
CATCHWORDS
Trade and Commerce - legislation regulating trading hours - whether trash and treasure market conducted by the Rotary Club of Canberra in breach of the Trading Hours Act (ACT) - onus of proof - whether onus lay on respondents to show that sales at the market came within exception of sales by hawkers - whether proper exception - meaning of word "hawker" considered - whether goods sold at market exempt goods.
Equity - injunctions - whether injunctive relief in a relator action available against persons not comitting breach of contract, tort, breach of statutory duty or private right where such injunction would require person enjoined to refrain from permitting an act proscribed by statute - whether if available injunctive relief was appropriate - form of injunctive relief discussed.
Words and Phrases - "hawker", "hobby and handicraft goods".
Trading Hours Act 1962 (ACT): ss.6, 6(2), 7, 7(1), 7(2), 7(4).
Trading Hours Ordinance 1926.
Early Closing Act 1899 (NSW).
Sunday Fairs Act 1448 (UK).
Sunday Observance Act 1677 (UK): ss. 1, 3.
Shops (Sunday Trading Restrictions) Act 1936 (UK).
Shops Act 1950 (UK).
Hawkers and Pedlers Act 1901 (NSW): s.6.
Hawkers Act 1936 (ACT).
Hawkers Ordinance 1926 (ACT).
Hawkers Act 1888 (UK).
Vines v. Djordjevitch (1955) 91 CLR 512; applied.
Nominal Defendant v. Dunstan (1936) 109 CLR 143; applied.
Director of Public Prosecutions v. United Telecasters Sydney Ltd (1990) 168 CLR 594; applied.
Bearer v. Knuckey (1965) WAR 118; considered.
Coleman v. Sargant (1983) WAR 128; considered.
Stoke-on-Trent City Council v. B and O (Retail) Ltd (1948) 1 AC 754; discussed.
Stafford Borough Council v. Elkenford Ltd (1977) 2 All ER 519; applied.
Attorney-General v. Huber (1971) 2 SASR 142; distinguished.
Page Motors Ltd v. Epsom and Ewell Borough Council (1981) 80 LGR 337; distinguished.
Sedleigh-Denfield v. O'Callaghan (1940) AC 880; distinguished.
Thanet District Council v. Ninedrive Ltd (1978) 1 All ER 703; distinguished.
HEARING
CANBERRA, 6 April 1993
#DATE 9:7:1993
Counsel and Solicitors B J Tamberlin QC and R J Arthur
for Appellant: instructed by Crossin, Barker,
Gosling
Counsel and Solicitors P Walker instructed by ACT
for First and Second Government Solicitor
Respondents:
Counsel and Solicitors R Refshauge instructed by
for Third Respondent: Macphillamy, Cummins and Gibson
ORDER
The Court orders that:
1. The appeal be dismissed.
2. Appellant to pay respondents' costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
BLACK CJ, GALLOP and HILL JJ The appellant, the Attorney-General of the Australian Capital Territory, the applicant in the proceedings below, appears on the relation of Olaseat Pty Ltd ("Olaseat"), the landlord of premises known as Jamison Shopping Centre. Olaseat also carries on business in that centre. The retail businesses carried on at the Jamison centre are, to some extent at least, in competition with businesses carried on by stallholders at a "Trash and Treasure" market, conducted by the third respondent, the Rotary Club of Canberra, Belconnen Incorporated ("Rotary").
A Trash and Treasure market is a market held periodically, in the present case once a week, at which goods are displayed and sold from trellis tables, the ground or indeed from trucks to members of the public who come to the market to purchase goods. The original emphasis of the market conducted by Rotary was to be on cottage industry goods, tourist merchandise, nursery items and secondhand goods, but it is now clear that a great variety of goods are sold at the market including new clothes, shoes, flowers, fruit and vegetables, sunglasses, leathergoods, women's clothing, hats, tie-dyed trousers, T-shirts with printed motifs, cushions, rugs, tools, toys, jewellery, stationery, books, plants and kitchenware. Framed prints of artworks are also sold.
Rotary is licensed by the second respondent, the Australian Capital Territory ("the Territory"), to use the carpark area on which the market is conducted for the purpose of operating a Trash and Treasure market each Sunday between 6.00am and 1.00pm. In so doing, the Territory accepts no responsibility in regard to any transaction entered into or carried out during the operation of the market. Clause 6(g) of the licence agreement provides that Rotary is to comply with all laws in force in the Australian Capital Territory affecting the use by it of the land and the requirements of any local or other authority. Further, it is to use its best endeavours to ensure that other persons present on the land comply with those laws or requirements. Under the agreement, the Territory has the right to specify that certain goods not be sold at the market. The licence agreement contains additionally the following three obligations of Rotary:
"(j) The Licensee, in granting permission to a person to sell goods in the Market, shall make it a condition of that permission that if that person carries on a business of selling goods in the Territory or elsewhere that person shall not sell goods normally sold by that person's business;
(k) Where the Licensee has reason to believe that a person may carry on a business of selling goods in the Territory or elsewhere of the type that person intends to sell at the Market, the Licensee shall require that person to sign a declaration drafted in a form identical to that specified in Schedule 'A'.
(l) the Licensee shall not sell nor permit to be sold from the market motor vehicles, medical goods, liquor, food (other than fresh fruit and vegetables and home-made preserves), ammunition or explosives (including fireworks);".
The declaration in Schedule A is in the following terms:-
"To the Rotary Club of Canberra, Belconnen Inc. I, of in the Australian Capital Territory declare to the Rotary Club of Canberra, Belconnen Inc. that I am the stallholder of a stall at the Jamison Trash and Treasure Market in Lane No. on this day of 1992 and have on display for sale the following goods:- and further declare that I do not carry on a business of selling goods of the kind which I am displaying for sale on this day anywhere else, whether in the Territory or not."
The licence agreement may be terminated on seven days' notice without any compensation.
It was the case of the appellant below and also before us that stallholders or other persons selling goods at the market were in breach of s.7(4) of the Trading Hours Act 1962 (ACT) ("the Act"). This being so, the appellant claimed to be entitled to a declaration that the sale of certain specified items during the hours 6.00am to 1.00pm on each Sunday at the markets constituted a breach of the Act and also injunctive relief against both the Territory and Rotary restraining each from "allowing the sale of any of the goods... at the said market".
The Act has a long lineage. The present legislation replaced comparable, although not identical, legislation being the Trading Hours Ordinance 1926 of the Territory. That Ordinance in turn repealed the previous provisions of the Early Closing Act 1899 (NSW) as amended by subsequent Acts and as applied to the Territory. The New South Wales legislation in turn owed its philosophy, but not its terms, to United Kingdom legislation, as well, presumably, to a desire to regulate working conditions for shop assistants and other workers.
It appears, from the short discussion of the history of legislation outlawing Sunday trading in the judgment of Lawton LJ in Stoke-on-Trent City Council v B and Q (Retail) Ltd (1984) 1 Ch 1 at 18-19, that English law started to prohibit Sunday trading in the reign of King Athelstan. After the Norman Conquest, however, the modern law seems to commence with the Sunday Fairs Act 1448 and the Sunday Observance Act 1677, both of which Acts remained on the Statute Book until 1969. As his Lordship points out, the Sunday Observance Act 1677 in s.1 provided:
"no person... shall publicly cry, shew forth or expose to sale, any wares, merchandises, fruit, herbs, goods or chattels whatsoever, upon the Lord's Day or any part thereof...".
Section 3, however, provided that the Act did not extend:
"...to selling of meat in inns, cookshops or victualling houses, for such as otherwise cannot be provided nor to the crying or selling of milk before nine of the clock in the morning or after four of the clock in the afternoon."
This legislation was, as his Lordship reports, widely disregarded in parts of London, particularly in the East End street markets, and it was only by the Shops (Sunday Trading Restrictions) Act 1936 and the Shops Act 1950 that legislation was passed to legalise such trading.
The 1899 New South Wales Act, which made it an offence for a shopkeeper to keep a shop open after the specified closing times and offer for sale goods after such times, defined "shopkeepers" as including hawkers (s.21). Hawkers had been regulated in New South Wales by Acts 13 Vic. No. 36, 16 Vic. No. 4 and 26 Vic. No. 2. In 1901 the then New South Wales law relating to hawkers and pedlars was consolidated in the Hawkers and Pedlers Act 1901 (NSW) which provided, inter alia, for the licensing of hawkers. The sale of goods at markets or fairs legally established required no licence (s.6). In the Territory, the carrying on of the business of a hawker is now regulated by the Hawkers Act 1936 ("the Hawkers Act") and requires the holding of a licence. Licensing was also provided for in the Hawkers Ordinance 1926 of the Territory which was repealed by the 1936 Act. Previous regulation of hawkers in the Territory stemmed from the Hawkers and Pedlers Act 1901 (NSW) as it applied to the Territory.
The Act provides, in ss.6 and 7 so far as is relevant, as follows:
"6. (1) The Minister may, by notice published in the Gazette, declare that this Act shall not apply in a part of the Territory specified in the notice and, while the notice is in force, this Act does not apply in that part of the Territory.
(2) This Act does not apply to or in relation to the sale of exempt goods, or to or in relation to the sale of any other goods -
(a) by a person otherwise than for the purpose of, or in the course of, carrying on a business;
(b) by a person, registered as a pharmacist under the Pharmacy Act 1931, for the purpose of, and in the course of, carrying on business as a pharmacist;
(c) by a hawker for the purpose of, and in the course of, carrying on business as a hawker;
(d) by an organization otherwise than -
(i) in the ordinary course of business of the organization; and
(ii) for the purposes of profit or gain to the individual members of the organization;
(e) at a show held by The National Agricultural Society; or
(d) at an exhibition or fair approved by the Minister for the purposes of this paragraph.
(3) ...
(4) ...
7. (1) This section does not apply to or in relation to the sale of -
(a) exempt goods; or
(b) goods sold by auction.
(2) For the purposes of this section, the sale of goods at a shop is prohibited at any time -
(a) on a Sunday;
...
(4) A shopkeeper shall not, at a time when the sale of goods at a shop is prohibited, sell away from his shop goods of a kind that he ordinarily sells at his shop."
Exempt goods are defined in s.5(1) of the Act by reference to the Schedule which lists the following as exempt goods:
"(1) Foodstuffs and non-alcoholic beverages.
(2) Flowers.
(3) Garden requisites.
(4) Goods for use in the decoration, renovation or repair of domestic premises.
(5) Hardware.
(6) Hobby and handicraft goods.
(7) Ice.
(8) Motor vehicles and parts for motor vehicles and engines.
(9) Newspapers, books and periodicals.
(10) Paints.
(11) Plants, trees, shrubs, seeds and turf.
(12) Petrol, fuel-oils and lubricants.
(13) Second-hand goods.
(14) Soap, toothpaste, tooth-brushes, shaving-cream and lotions, cosmetics, razors and razor blades, adhesive bandages and toilet paper and tissues.
(15) Souvenirs, postcards, stationery, art works and reproductions of art works.
(16) Timber and goods for use in wood-working.
(17) Tobacco, cigars, cigarettes, cigarette-papers, cigarette-holders, matches, pipes and pipe-cleaners.
(18) Tyres and tubes.
(19) Wallpaper."
The judgment appealed against
14. The learned primary judge dismissed the application. It was his Honour's view that those trading in the market were either carrying on the business of a hawker or, alternatively, were traders engaged in an activity falling outside of the concept of carrying on business. This being the case it became unnecessary for his Honour to consider whether the goods were exempt goods. His Honour contented himself with the comment that some were and some were not. His Honour was of the view that the list of goods, the sale of which was sought to be restrained by the appellant, would need "considerable qualification" if it were appropriate to grant relief. It was also unnecessary for his Honour to determine whether the relief sought might have been refused on discretionary grounds.
The issues on the appeal
15. During the course of argument it became clear that there were four issues upon which the resolution of the appeal depended. These issues might be shortly summarised as follows:
* Whether the appellant or the respondents bore the onus of showing that the sales at the market were or were not in breach of s.7 of the Act because those selling either carried on no business or were hawkers. * The meaning of the word "hawker". * Whether the goods sold at the market and sought to be restrained were exempt goods. * Whether relief should be granted in the present case and if so the form, if any, which such relief should take.
Ultimately, the first two of these questions are related and it is convenient to consider them together. The fourth question, if answered adversely to the appellant, would render all other questions unnecessary to determine. The first two questions were fully argued and in deference to that argument we would propose to consider them first before turning to the fourth question.
The onus of proving the sales at the market were sales to which the Act did not apply
17. As has been noted, his Honour held that all sales at the market were exempt sales being either sales made by persons not carrying on a business or by hawkers. This finding is now challenged before us. It is submitted that there was no evidence, or insufficient evidence, before his Honour to support it and that the question of who bore the onus of showing that the sales in question were exempt sales, was very relevant to the determination of the question.
The evidence as to the persons actually involved in selling at the markets is, to say the least, sparse. It amounts to no more than the fact that many of the stallholders came to the market from interstate and also operated at another market conducted at the National Exhibition Centre in Mitchell, also referred to at the Natex Market. Apparently at least one week in every four, persons trading at the Natex Market set up at the Trash and Treasure market on Sunday to continue selling their goods. There was no evidence which directly showed that any person selling at the market was a person not carrying on business. However, at least one photograph of a stall might suggest that that particular stallholder was not carrying on a business. On the other hand, it might well be said that even in respect of that one stallholder, the photographic evidence was ambivalent.
The relevant principles for determining in a case such as the present who had the burden of proof, were not in dispute. They are set out in the joint judgment of Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ in Vines v Djordjevitch (1955) 91 CLR 512 at 518-9. The question depends upon whether the provisions of s.6 of the Act should be treated as an exemption to the offence provisions of s.7(3), so that the burden of proving the facts necessary for the application of the exemption falls upon the respondents and not upon the applicants. In Vines their Honours said (at 519):
"'There is a technical distinction between a proviso and exception, which is well understood. All the cases say, that if there be an exception in the enacting clause, it must be negatived: but if there be a separate proviso, it need not' - per Abbott J in Steel v. Smith (1817) 1 B and Ald 94 at p 99 (106 ER 35 at p 37). The distinction has perhaps come to be applied in a less technical manner, and now depends not so much upon form as upon substantial considerations. In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature and therefore the manner in which the legislature has expressed its will must remain of importance. But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts... But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter."
This statement of principle has been applied in numerous cases since. Reference may be made to Lynch v Attwood (1983) 3 NSWLR 1 and the cases referred to by Yeldham J in that case at 5, Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594 at 600-1 per Brennan, Dawson and Gaudron JJ and at 611 per Toohey and McHugh JJ; and Sun Securities Ltd v National Companies and Securities Commission (1990) 2 ACSR 796 at 805 per Ipp J; Nominal Defendant v Dunstan (1963) 109 CLR 143 at 150-1 and Ex parte R J Wimborne Pty Ltd; Re Beale (1958) SR (NSW) 353 at 354-7.
As the passage from Vines makes clear, in determining the parliamentary intention it is important to look at the substance of what Parliament has done, although the form in which Parliament has cast the legislation will not be irrelevant. It is accepted by all parties that for a provision to be an exception it is unnecessary that it be found in the section establishing the offence. An exemption may, in a particular case, be found either in some section other than the offence provision or indeed, as in the Nominal Defendant v Dunstan (supra), in regulations made pursuant to the Act being construed.
When one turns to the legislation itself it seems evident that in s.7(2) Parliament imposed what may be described as a general prohibition of the sale of goods at a shop on a Sunday. That general prohibition is, however, subject to s.6(2) of the Act which excludes from the application of the Act certain sales, and to s.7(1) which excludes from the application of the section sales of exempt goods and sales of goods by auction. While s.6(2) does not use the nomenclature "exception", that is not determinative. The issue, having regard to the scheme of the legislation, the language used and the form and the policy enshrined in the legislation, is whether s.6 contains an exception from the general application of s.7. In our view, it does. Conversely, it is our view that there are not to be found in s.6 provisions which, to use the language of Toohey and McHugh JJ in United Telecasters Sydney Ltd (supra at 611), form "part of the total statement of the obligation". Reading ss.6 and 7 together, the legislature has prohibited trading in a shop on Sunday in all cases except those to which the Act is inapplicable, referred to in s.6 or s.7(1). Accordingly, the burden of proof lies upon an applicant to prove only the matters set out in s.7(2). Once those matters are proved, the onus will lie upon the respondent to prove facts which come within the provisions of s.6 so that the sales in question are taken out of the Act.
Since there was no evidence, or virtually no evidence, that any of the stallholders were at the market other than for the purpose of carrying on business for a profit, the onus lay upon the respondents to show that all the stallholders were hawkers, carrying on business at the market as such or were not carrying on a business activity.
It is clear that the word "hawker" as used in the legislation (it is not defined) is a vocational description. The Shorter Oxford English Dictionary 3rd ed. defines the word as:
"A man who goes from place to place selling his wares, or who cries them in the street."
The Macquarie Dictionary (Second Revision) defines the word similarly as meaning:
"one who travels from place to place or house to house selling goods."
The word owes its origin, it would seem, from the Dutch word for "retailer".
What characterises a hawker, or differentiates a hawker from other traders, is the peripatetic nature of the hawker's trade, the travelling from place to place. However, that does not preclude the conclusion that a person might be a hawker if that person travelled with his wares to a market and there sold goods at a stall: cf the definition of "hawker" in the Hawkers Act 1888 (UK), discussed in Pease and Chitty's Law of Markets and Fairs, 2nd ed, 1958 at 156-7.
For the appellant it was submitted that having regard to the close association historically in the Territory between the trading hours legislation and the hawkers legislation, regard should be had to the meaning of the word "hawker" in s.5 of the Hawkers Act. That Act defines the business of a hawker as being the carriage of goods "on his person or on any animal or in or on any vehicle for the purpose of selling or offering for sale those goods." It is true, as senior counsel for the appellant submitted, that the Trading Hours Ordinance 1926, which was repealed by the present Act, defined a shopkeeper as including a person deemed to be carrying on the business of a hawker within the meaning of the Hawkers Ordinance 1926, the 1926 definition being identical, for present purposes, with the definition of the Hawkers Act 1936. It is also true that one might assume some symmetry between the Hawkers Act on the one hand and the Trading Hours Act on the other, and not to expect to find a class of person who are neither regulated by the Hawkers Act, nor subject to the provision of the Trading Hours Act because their sales were exempted from them. However, neither of these matters compels the conclusion sought to be reached.
We were not taken to any extrinsic material casting light on why, in 1962, the Act was introduced and without either a definition of "hawker" or reference to the Hawkers Act. It must, in our view, be assumed that Parliament intended that the word in the Act has its ordinary English meaning, if that be different from the meaning in the Hawkers Act, rather than that the word bear the meaning ascribed to it in other legislation not referred to in terms.
Counsel for the appellant placed emphasis upon the necessity for a person to move from place to place rather than to sell at a fixed place, before that person is to be characterised as a hawker. He submitted that perhaps a flower vendor selling at the market by moving around from place to place selling his or her wares, would be a hawker, but a similar flower vendor operating a stall for some hours at the market would not. Reference was made to two decisions of Full Courts of the Supreme Court of Western Australia, Bearer v Knuckey (1965) WAR 118 and Coleman v Sargant (1983) WAR 128, where a hawker was said to be (in the context of a by-law requiring licences for persons who hawk goods, wares or merchandise other than as a stallholder), one who travels looking for customers stopping only when he sees a prospective customer rather than, by contrast, an operator who parks his van at a particular place with the intention of staying there and in the hope that customers will resort to him.
While, as will be seen, it is unnecessary to resolve this issue, it is the better view that a person who travels day by day from fair to fair would be a hawker, albeit that such a person spends some hours each day selling from a fixed place, for example, a stall at the fair. The mere fact that such a person sells for a whole day at a fixed place would not suffice to exclude that person from the category of hawkers. For the purpose of the present argument, however, it is sufficient to say that whichever view of the word be adopted, the respondents have not shown that all the persons selling at the fair had moved from the Natex market. Indeed, all that the evidence shows is that some of the persons who sold at the present market may well have been hawkers. The evidence falls far short of showing that all of the persons who sold at the market moved from place to place, whether it was necessary that they actually continued to move while selling at the market themselves.
It follows, therefore, that the appellants having shown that the general prohibition in s.7 of the Act had been transgressed by sales made at the market and the respondents not having proved facts bringing the sales within the exemptions, the appellant has shown that if the goods sold extended beyond the range of exempt goods, there were breaches of the Act by persons licensed by Rotary.
Whether the nominated goods were exempt goods
33. As already indicated, his Honour found it unnecessary to determine whether the items nominated by the applicant (the appellant in this case) fell within the category of exempt goods. Since, as a matter of general principle, the Court would not make a declaration in respect of hypothetical facts not at issue between the parties, it would be necessary that there be findings of fact by his Honour that the items listed by the appellant and in respect of which the declaration was sought, were in fact sold at the market. Similarly, the Court would not grant an injunction restraining the sale of nominated goods unless it were satisfied not only that such nominated goods were in fact sold at the market, but that it was likely that the sale of those goods would continue.
His Honour did not make these findings of fact, although a perusal of photographs would certainly suggest a real likelihood that each of the items in question was in fact sold at the market. On the other hand, it is not possible from a photograph to determine whether, for example, sunglasses on sale at the market were or were not new.
There was some discussion in the judgment whether new jewellery might fall within the category of "hobby and handicraft goods", a category which his Honour suggested might also be relevant to some items of clothing and personal apparel. Whether particular items of jewellery were or were not handicraft goods would obviously be a matter of fact. The applicant submits that the expression "handicraft goods", as was said to be evident from the juxtaposition of the term to "hobby goods", was a reference to goods used in a handicraft or a hobby and not the product of a handicraft or hobby. However, I see no reason so to limit the meaning of the expression. No doubt "hobby goods" would ordinarily extend to kits for model aeroplanes and the like, but "handicraft goods" extends not merely to goods used in handicraft, for example, leather, cloth embedded with a design for embroidery and the like, but also the finished product of handicraft itself. An additional reason not to limit the meaning of expressions used in the Schedule is that the broad variety of the categories of exempt goods suggests that there was no intention that the categories should be interpreted narrowly. They are clearly not confined to necessities or to goods that might be required for weekend activities; for example, second-hand goods are exempt, as are art works and reproductions of art works.
Accordingly, it would be necessary for the matter to be remitted to the learned trial judge for further determinations of fact if the Court were of the view that, in the present case, it was appropriate that declaratory or injunctive relief be granted.
The form, appropriateness and nature of relief
37. Although the applicant sought both declaratory and injunctive relief, it was the injunctive relief for which the appellant principally contended. The explanation for this is not difficult to see. There was no suggestion that Rotary itself had committed any illegal act. If sales were made at the market in breach of the Act, offences were committed by the various persons making those sales. It was his Honour's finding that Rotary had conscientiously done its best to ensure compliance with the terms of its agreement with the Territory, one of those terms being, as has already been pointed out, an obligation upon Rotary to use its best endeavours to ensure that other persons comply with the laws of the Territory.
Ideally, the appellants would no doubt have preferred that injunctive relief be granted against those selling at the market, restraining them from any illegalities, but the practical difficulties of commencing proceedings against numerous stallholders, some of whom may well be itinerant persons, made such a procedure, so it was suggested, unwieldy. Thus it was that the appellants sought relief not against any person who had committed an offence, but against Rotary because it controlled the market by virtue of its franchise from the Territory and against the Territory itself which may be assumed to have been largely, if not totally, ignorant of what in fact took place at the market.
It may be said generally of the jurisdiction to grant injunctive relief that it will be exercised where there is a right of a plaintiff which the defendant has either threatened to infringe or has infringed and is likely to infringe again in the future. The textbooks are replete with examples where injunctive relief has been granted in an appropriate case to prevent a breach of contract, or the commission of a tort, or to restrain the breach of some statutory duty, or, in the case at least of a private right, the commission of conduct prohibited by statute. Conversely, no injunctive relief will be granted to a plaintiff where the plaintiff has no right at all which has been infringed or which the defendant threatens to infringe: White v Mellin (1895) AC 154.
The Attorney-General is charged with the duty of protecting public rights and may, of his own accord or on the relation of a private individual, seek injunctive relief restraining the infringement of a statutory provision in aid of the protection of a public right.
Lord Wilberforce, speaking in Gouriet v Union of Post Office Workers (1978) AC 435 at 481, described the relator action invoking the assistance of civil courts in aid of the criminal law as being of comparative modern use and:
"...an exceptional power confined, in practice, to cases where an offence is frequently repeated in disregard of a, usually, inadequate penalty... or to cases of emergency."
His Lordship further expressed the view that such an action was not without difficulties and might call for consideration in the future. His Lordship was further at pains to point out the essentially discretionary nature of the remedy, it being relevant to the exercise of that discretion whether the law might be better enforced by prosecution.
It is clear that the grant or denial of equitable relief will, in the case of actions brought by the Attorney-General, be based on broader grounds than would normally apply as between private citizens: Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 48 ALJR 464 at 470 (Privy Council). While it is clear that it is not necessary for a prosecution to have been successfully brought before injunctive relief will be granted, there can be no doubt but that the Attorney-General has power to seek an injunction restraining the commission of a breach of the Act. But even in such a case, it has been pointed out by Lord Templeman in Stoke-on-Trent City Council v B and Q (Retail) Ltd (1984) 1 AC 754 at 776, that where Parliament has provided a penalty for an offence against a statute, a court would be reluctant to grant an injunction which, if disobeyed, may involve the infringer in sanctions far more onerous than the penalty imposed for the offence. As his Lordship said:
"In my view there must certainly be something more than infringement before the assistance of civil proceedings can be invoked and accorded for the protection or promotion of the interests of the inhabitants of the area... It was said that the council should not have taken civil proceedings until criminal proceedings had failed to persuade the appellants to obey the law. As a general rule a local authority should try the effect of criminal proceedings before seeking the assistance of the civil courts. But the council were entitled to take the view that the appellants would not be deterred by a maximum fine which was substantially less than the profits which could be made from illegal Sunday trading. Delay while this was proved would have encouraged widespread breaches of the law by other traders, resentful of the continued activities of the appellants. The poor trader would be deterred by the threat of a fine; the rich trader would consider breaking the law each Sunday if illegal trading produced profit in excess of the maximum fine and costs."
In such a case as the present, where no attempt has been made to bring prosecutions for breach of the law preventing Sunday tradings, there must, as Lord Bridge said in Stafford Borough Council v Elkenford Ltd (1977) 2 All ER 519 at 528 be a "deliberately and flagrantly flouting the law". It is in such a case unnecessary to show that the provisions of the criminal law have been availed of and been found wanting. It is relevant indeed, as Lord Oliver said in that case, that the fines provided for a breach of a provision such as s.7(3) are not in the slightest degree likely to deter a trader from engaging in what might otherwise be a lucrative activity.
In no case to which we were referred has a court granted an injunction against a person not guilty of the offence in question. Nor have our own researches revealed such a case. The nearest case supporting such a proposition is the decision of the Full Court of the Supreme Court of South Australia in Attorney-General v Huber (1971) 2 SASR 142. That case, trenchantly criticised (albeit for other reasons) by the learned authors of Meagher, Gummow and Lehane in Equity: Doctrines and Remedies 3rd Ed at para.2135, involved the grant of an injunction to the Attorney-General on the relation of what the learned authors refer to as "Adelaide moral vigilantes" against parties which included the owner of the theatre in which the revue "Oh Calcutta" was to be staged. However, it does not seem that the injunction at first instance was granted against the defendants merely because one of the defendants, the defendant company in question, was the owner of the theatre. The actual terms of the injunction granted reflect this. The injunction operated to restrain the defendants from "producing, staging or presenting" the revue (see at 150). That was not a case where the involvement of the defendant was merely in permitting the illegal act to take place. Rather, the defendant was "concerned" in the actual production of the revue (see at 145).
Counsel for the appellants referred us to cases enjoining public nuisances. Thus in Page Motors Ltd v Epsom and Ewell Borough Council (1981) 80 LGR 337, an injunction was granted against the owners of land upon which trespassers were causing a nuisance to an adjoining occupier. The injunction was in terms restraining the defendant council from continuing the nuisance. It may be said that by the time the action came on for hearing, the trespassers (gypsies) had been removed from the land so that a claim for an injunction was in fact not pursued. The headnote to the case refers to the fact that the Council had permitted the nuisance to continue. That, however, was not ultimately the basis of any injunctive relief because none was in fact granted. However, the legal theory behind the injunction sought was that under the tort of nuisance the owner of the land entitled to possession may be liable for the act of a trespasser where he or she has continued or adopted the nuisance. The law imposes in such a case a responsibility upon the owner/occupier of the property (see at 346).
The same explanation accounts for the decision of the House of Lords in Sedleigh-Denfield v O'Callaghan (1940) AC 880. Again that was not a case where an injunction was granted. Nevertheless the House of Lords pointed out that where the owner of land continues and adopts a nuisance, of which initially the owner was unaware, the owner may be liable in damages to a person suffering loss. By continuing the nuisance is meant failing (having knowledge or presumed knowledge of its existence) to take reasonable measures to bring it to an end although having ample time so to do. By adoption is meant making use of whatever it is that constitutes the nuisance.
The nuisance cases are really of no assistance. This is because in such cases where injunctive relief is granted against the owner of the land, that injunction would lie only because the occupier of the land who continues or adopts the nuisance becomes liable as a tortfeasor. That analogy hardly seems apt to a case where the person against whom the injunction is sought has no liability at all.
After the matter had been argued, counsel for the appellant was granted leave to file supplementary submissions if so advised. In those submissions reference was made to Thanet District Council v Ninedrive Ltd (1978) 1 ALL ER 703 and Solihull Metropolitan Borough Council v Maxfern Ltd (1977) 1 WLR 127.
In Thanet injunctions were sought against various defendants restraining them from using, or causing or permitting to be used, certain land as a retail market on Sundays. It was held that the defendant, Ninedrive Ltd, the organiser of the market and itself carrying on business in the market, was in breach of the relevant planning legislation and of the Shops Act 1950. There is nothing said in the report as to whether relief was granted against persons who were merely the owners of the land, but not otherwise in breach of the law. The case contains no discussion at all of the rationale, if there be one, for granting an injunction against a person guilty neither of a tort nor of an offence.
In the supplementary submissions, counsel for the appellant seized upon a suggestion made during the course of argument by the bench that Rotary might, given an appropriate fact situation, be guilty of having aided and abetted the defendants. Reference is made, inter alia, to the cases of R v Russell (1933) VLR 59 and Maby v Warwick Corporation (1972) 2 QB 242. By way of example, the latter case concerned a prosecution against the owner of free-standing stalls for aiding and abetting persons who traded from those stalls on a Sunday.
There could be no doubt that if Rotary, with knowledge of all the facts, permitted persons to sell at the market in breach of the law, an accessory offence would be committed. But this was never the case put by the appellants below. To allow them now to make the case, where, had it been made below, the respondents would have been in a position to call evidence negativing knowledge and therefore mens rea, would be productive of injustice. The appellants should be bound by the way the case was conducted below.
But even if it were the case that the Court had power to grant an injunction restraining the respondents in the present case from hereafter permitting traders at the market to sell in contravention of the Act, the question remains whether it would be an appropriate exercise of discretion for the Court to grant such an injunction. So to do would require the respondents to become supervisors of the criminal law. The injunction would require the respondents to be not only policemen but judge and jury as well. It would require of the respondents that they investigate and interrogate each stallholder to determine whether that stallholder does or does not fall within one of the exemption categories contained in s.6. As the present case itself indicates, questions of degree may well be involved in whether a person is or is not a hawker. Difficult questions may arise as to whether a person in a particular circumstance is carrying on a business. It would be productive of injustice to require Rotary, a fortiori the Territory, to make such inquiries and render itself liable for contempt in the event that it should turn out that those inquiries were inadequate or produced wrong answers.
The form of injunction which would issue presents a further problem. Clearly an injunction could not be framed in the way the appellant's claim for relief was framed because it would enjoin the permitting of activities which were legal as well as the permitting of activities which were illegal. The only satisfactory way in which an injunction could be framed would be to enjoin Rotary and/or the Territory from permitting traders selling in contravention of the Act. But so to frame the order makes the difficulty of policing that order apparent. The respondents, with no legal obligation to police the order, would be required by fiat of the Court so to do and would be in contempt if they failed so to do. If the legislature intended to impose upon persons, not accessories, obligations to police the Trading Hours Act, then it should do so in direct terms.
However inconvenient, it remains open to the appellant to take direct action against those breaching the law either by way of prosecution or alternatively by way of injunction. The present relief is sought against the wrong party. No injunction should therefore lie. This being the case, there is little point in the making of a declaration that breaches of the law had occurred in the past by sellers at the market, not being the respondents. The granting of such a declaration (its terms would need to be substantially narrower than those suggested by the appellants) would lack practical utility: cf Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286.
The appeal should accordingly be dismissed with costs.