Fuller v Beach Petroleum NL

Case [1993] FCA 453

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…

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Details
AGLC
Attorney-General of the Australian Capital Territory on the relation of Olaseat P/L v. The Australian Capital Territory Minister for the Environment, Land and Planning & Ors [1993] FCA 453 ((1993) 115 ALR 161; (1993) 43 FCR 329)
Case
[1993] FCA 453
Decision Date

CaseChat Overview and Summary

Fuller brought a claim against Beach Petroleum NL in the Federal Court of Australia, challenging the legality of a trash and treasure market conducted by the Rotary Club of Canberra. The core issue was whether the market breached the Trading Hours Act of the Australian Capital Territory by selling goods outside the permitted trading hours. Specifically, the dispute centred on whether the sales at the market were exempt under the Act as sales by "hawkers", which are not subject to the same trading hour restrictions.

The court was required to determine the meaning and scope of the term "hawker" as used in the Act, and whether the sales at the trash and treasure market fell within this definition. Additionally, the court had to consider the onus of proof in this context, assessing whether it was on the respondents to demonstrate that the sales were exempt under the Act or whether the appellant bore this burden. The interpretation of the term "hawker" and the proper application of the onus of proof were pivotal in resolving the dispute.

The court concluded that the term "hawker" in the Act was not limited to traditional door-to-door sellers but encompassed events like the trash and treasure market conducted by the Rotary Club. The court found that the onus of proof lay on the appellant to show that the sales did not fall within the exemption for hawkers. Given the broad interpretation of "hawker" and the absence of evidence from the appellant that the sales were not exempt, the court found in favour of the respondents. Consequently, the appeal was dismissed, and Fuller was ordered to pay the respondents' costs.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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