Perron Investments Pty Ltd v Assignment Holdings Pty Ltd
[2005] WASCA 2
•11 JANUARY 2005
PERRON INVESTMENTS PTY LTD -v- ASSIGNMENT HOLDINGS PTY LTD [2005] WASCA 2
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 2 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:158/2003 | 15 SEPTEMBER 2004 | |
| Coram: | MURRAY J STEYTLER J TEMPLEMAN J | 11/01/05 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Order discharging order nisi set aside In lieu, order nisi made absolute Writ of certiorari issued quashing determination of the Commercial Registrar made on 12 December 2002 | ||
| B | |||
| PDF Version |
| Parties: | PERRON INVESTMENTS PTY LTD ASSIGNMENT HOLDINGS PTY LTD |
Catchwords: | Administrative law Natural justice Appeal against a decision discharging order nisi for a writ of certiorari Question of rent payable following a rent review referred to the Commercial Registrar for determination Neither party knew contents of opposing party's valuer's report No submissions (other than valuers' reports) received and no hearing held by Commercial Registrar Whether Commercial Registrar failed to apply rules of natural justice Extent to which rules of natural justice are excluded or limited by the Commercial Tenancy (Retail Shops) Agreements Act 1985 Requirements of natural justice in this case Turns on own facts |
Legislation: | Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 11 |
Case References: | Annetts v McCann (1990) 170 CLR 596 Kioa v West (1985) 159 CLR 550 Re Commercial Registrar of the Commercial Tribunal of Western Australia; Ex parte Perron Investments Pty Ltd [2003] WASC 198 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Baba v Parole Board of New South Wales (1986) 5 NSWLR 338 Cains v Jenkins (1979) 42 FLR 188 Colliery Employees Federation v Northern Colliery Proprietors Association [1904] AR (NSW) 182 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 Russito Pty Ltd v Russo (1993) 173 LSJS 14 Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 Van Grieken v Veilands (1991) 103 ALR 233 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : PERRON INVESTMENTS PTY LTD -v- ASSIGNMENT HOLDINGS PTY LTD [2005] WASCA 2 CORAM : MURRAY J
- STEYTLER J
TEMPLEMAN J
- Appellant
AND
ASSIGNMENT HOLDINGS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : WHEELER J
Citation : RE COMMERCIAL REGISTRAR OF THE COMMERCIAL TRIBUNAL OF WESTERN AUSTRALIA; EX PARTE PERRON INVESTMENTS PTY LTD [2003] WASC 198
File No : CIV 1642 of 2003
(Page 2)
Catchwords:
Administrative law - Natural justice - Appeal against a decision discharging order nisi for a writ of certiorari - Question of rent payable following a rent review referred to the Commercial Registrar for determination - Neither party knew contents of opposing party's valuer's report - No submissions (other than valuers' reports) received and no hearing held by Commercial Registrar - Whether Commercial Registrar failed to apply rules of natural justice - Extent to which rules of natural justice are excluded or limited by the Commercial Tenancy (Retail Shops) Agreements Act 1985 - Requirements of natural justice in this case - Turns on own facts
Legislation:
Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 11
Result:
Appeal allowed
Order discharging order nisi set aside
In lieu, order nisi made absolute
Writ of certiorari issued quashing determination of the Commercial Registrar made on 12 December 2002
Category: B
Representation:
Counsel:
Appellant : Mr G R Donaldson
Respondent : Mr A M Prime
Solicitors:
Appellant : Hotchkin Hanly
Respondent : McCallum Donovan Sweeney
Case(s) referred to in judgment(s):
Annetts v McCann (1990) 170 CLR 596
(Page 3)
Kioa v West (1985) 159 CLR 550
Re Commercial Registrar of the Commercial Tribunal of Western Australia; Ex parte Perron Investments Pty Ltd [2003] WASC 198
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Case(s) also cited:
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Baba v Parole Board of New South Wales (1986) 5 NSWLR 338
Cains v Jenkins (1979) 42 FLR 188
Colliery Employees Federation v Northern Colliery Proprietors Association [1904] AR (NSW) 182
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149
Russito Pty Ltd v Russo (1993) 173 LSJS 14
Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502
Van Grieken v Veilands (1991) 103 ALR 233
(Page 4)
1 MURRAY J: I have read in draft the judgment of Steytler J. I agree with it and with the orders proposed by his Honour. There is nothing I could usefully add.
2 STEYTLER J: This is an appeal against the decision of a Judge of this Court discharging an order nisi for a writ of certiorari. The writ was to be issued against the Commercial Registrar ("the Registrar") of the Commercial Tribunal of Western Australia. Its purpose would have been that of quashing a decision made by him on 12 December 2002 pursuant to a reference under s 11(5) of the Commercial Tenancy (Retail Shops) Agreements Act 1995 ("the Act").
3 The appellant and the respondent are parties to a lease in respect of a shop in the Mirrabooka Square Shopping Centre. Clause 2.3 of the lease provides for periodic reviews of the annual rental payable under the lease. A review was conducted in June 2002. The parties could not agree upon the rental. Each of them thereupon appointed a licensed valuer in an attempt to resolve the dispute. The valuers could not agree. Because of this, the respondent (the lessee under the lease) referred the question of the rent payable to the Registrar for determination. The Registrar determined that question on 12 December 2002. His reasons for his determination reveal that he had considered a report prepared by each of the valuers. They also reveal that he had inspected the leased premises and other premises mentioned in the valuation reports prepared by the two valuers.
4 The affidavit evidence before the primary Judge established that, although the two valuers met on 20 September 2002, the appellant's valuer has never been provided with a copy of the valuation report prepared by the respondent's valuer (which was prepared after the meeting). Nor has he ever been given an opportunity to read that report. The first that he learned of the reference to the Tribunal was by way of a facsimile transmission sent to him by the respondent's valuer. The transmission attached a copy of what was described as the "lodgment letter". That letter, addressed to the Registrar, sought a determination of the rental payable in respect of the leased premises and attached a copy of the rental valuation prepared by the respondent's valuer and a copy of the lease. The letter recorded that the appellant's valuation report would follow in due course. It was that which led to the preparation and submission, by the appellant's valuer, of his report to the Registrar.
5 The appellant contended that the Registrar had failed to comply with the rules of natural justice in the course of arriving at his determination. It
(Page 5)
- particularly complained about the fact that the Registrar did not provide either valuer's report to the other party or notify either party of the contents of the other's report and also about the fact that he did not conduct any form of hearing, or receive any submissions from anyone (other than in the form of the two reports) before making his determination.
6 The primary Judge found (Re Commercial Registrar of the Commercial Tribunal of Western Australia; Ex parte Perron Investments Pty Ltd [2003] WASC 198) that it had not been necessary for the Registrar to do any of these things. The appellant, by its notice of appeal, contends that she erred in so finding and that natural justice required the Registrar to do any one or all of those things in order to provide the parties with a fair opportunity to correct or contradict any relevant information or prejudicial material.
7 As I have said, the Registrar's determination was made pursuant to s 11(5) of the Act. The relevant provisions of s 11 are subs (3) to (8). They read as follows:
"(3) A retail shop lease that provides for review of the amount of rent payable during the currency of the lease shall be taken to provide that where the parties do not agree on the rent payable as a result of the review, the question shall be resolved, subject to subsection (5), by either -
(a) a person licensed under the Land Valuers Licensing Act 1978 agreed to by each of the parties; or
(b) 2 persons licensed under that Act, one of whom is appointed by the landlord and one of whom is appointed by the tenant.
(3a) …
(4) A person who acts under subsection (3)(a) or (b) shall, at the request of and on payment of the required fee by a party to the lease, provide reasons for his decision in writing to that party.
(5) Notwithstanding subsection (3), a party to a retail shop lease may refer to the Registrar for determination a question as to the rent payable as a result of the review by the parties where -
(Page 6)
- (a) the persons acting under subsection (3)(b) fail to reach an agreement on the rent to be paid; or
(b) a person has not acted under subsection (3)(a) or (b) and the leave of the Registrar has been obtained,
- but otherwise such a question shall not be referred to the Registrar.
(6) In determining a question under subsection (5), the Registrar shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms, and shall not be bound by the rules of evidence, but may inform himself or herself on any matter in such manner as the Registrar thinks fit.
(7) For the purpose of determining a question under subsection (5) the Registrar may require the parties to furnish to the Registrar such valuations, documents or other information as the Registrar thinks fit and the parties shall comply with any such requirement.
(8) In determining a question under subsection (5) the Registrar, after considering all the circumstances of the case, may determine that any increase or reduction in rent payable as a result of the determination of the Registrar under that subsection is payable over such period as the Registrar thinks fit."
8 The primary Judge, in her reasons at [7], mentioned that the word "determination", where it appears in s 11(5), was originally the word "resolution", the substitution having been effected by the Commercial Tenancy (Retail Shops) Agreements Amendment Act 1998.
9 Also relevant are the following provisions of Pt III of the Act, headed "Determination of questions":
"16.Reference of questions to Registrar
(1) Subject to section 11(5), a party to a retail shop lease may refer to the Registrar any question between the parties which he believes to be a question arising under the lease and the Registrar shall -
(Page 7)
- (a) determine whether or not the question referred to him is a question arising under the lease; and
(b) if it is such a question, hear the question with a view to achieving a solution acceptable to the parties to the lease.
- (2) The matter for determination referred to in subsection (1)(a) -
(a) may be determined by the Registrar in such manner as he thinks fit, subject to each party being given an opportunity to make a written submission; and
(b) for the purposes of sections 22(f) and 27, is deemed to be a question referred to the Registrar.
19. Reference to Registrar
(1) A question arising under a retail shop lease is referred to the Registrar by a party to the lease completing the prescribed form and lodging it, together with the prescribed fee, at the office of the Registrar.
…
(5) The hearing of a reference before the Registrar shall not be open to the public.
20.Notice of hearing
(1) The Registrar shall give or cause to be given to each person appearing to the Registrar to have a sufficient interest in a resolution of the question that has been referred to the Registrar reasonable notice of the time when, and the place where, the Registrar is to conduct a hearing of the reference.
(2) Every person given notice under subsection (1) is a party to the reference and every person who satisfies the Registrar or the Tribunal, as the case may be, that he has a sufficient interest in a resolution of a question before the Registrar or the Tribunal is entitled to be, and shall be, joined as a party.
(Page 8)
- (3) The Registrar may by service of a summons in writing require any person who is a party to a reference to attend, at a time and place specified in the summons, at the hearing of the question referred to the Registrar.
…
21. Mediation agreements
(1) Where a question has been referred to the Registrar and a solution in the form of an agreement acceptable to all of the parties to the reference has been attained, particulars of the agreement shall be reduced to writing and signed by or on behalf of the parties, and a copy thereof shall be filed in the records of the Registrar.
…
22. Reference to Tribunal
Where under this Act a question is referred to the Registrar and -
(a) the Registrar is of the opinion that the reference was made frivolously, vexatiously, or for an improper purpose;
(b) the Registrar is of the opinion that a solution acceptable to all of the parties to the reference cannot be attained by means of a hearing, or any further hearing, under section 16(1)(b);
(c) a party to the reference, having been duly notified of the hearing of the reference, whether or not he has been served with a summons under section 20(3), fails to attend the hearing;
(d) a party to the reference who has entered into an agreement a copy of the particulars of which has been filed under section 21(1) breaches the terms of the agreement;
(e) the question has not been resolved within 90 days after the question was referred to the Registrar; or
(Page 9)
- (f) the Registrar is of the opinion that because of the importance or complexity of the question, or for any other reason, the question ought to be determined by the Tribunal,
- the Registrar shall, by notice in writing in the prescribed form, forthwith refer the matter to the Tribunal for determination."
10 The primary Judge, having considered these provisions, arrived at a number of conclusions in respect of them.
11 First, she noted (at [9]) that the scheme of Pt III is that the Registrar is not permitted to determine any question other than that of whether or not the question referred to him is one arising under the lease. That function aside, he is required only to attempt to achieve a solution acceptable to the parties. If a solution of that kind is not attainable, he must refer the question to the Tribunal for determination.
12 Next, she noted (also at [9]) that such a scheme is inconsistent with s 11(5), which permits a referral to the Registrar for determination, and with s 11(6), which makes it clear that the determination is to be that of the Registrar and not that of the Tribunal. She inferred (at [10]) that s 22 of the Act should be read as referring generally to questions referred pursuant to s 16, but not to questions referred pursuant to s 11.
13 Then, after considering the provisions of s 16, she said that:
"… the intention of s 11 is that the solution acceptable to both parties, which the Registrar is required to attempt to reach in relation to questions referred pursuant to s 16, is in relation to rent review questions to be achieved wherever possible by the appointment of a mutually agreed valuer or by discussion between valuers."
14 She went on to say that it seemed to her to be unlikely, because representations and discussions might be assumed to have taken place at the stage required by s 11(3), that the legislature intended that the Registrar should make further efforts to attempt to achieve a mutually acceptable solution before proceeding to determine the matter.
15 She said, at [14]:
(Page 10)
- "Further, it appears to me that subs (6) and (7) of s 11, while they are not expressly inconsistent with other sections contained in Pt III, also suggest a legislative intention that the procedure set out in that Part should not be followed. Most notably, it appears to me that the references to a 'hearing' which is to be found in s 18, and the hearing procedure set out in s 20, which obviously contemplate parties and times witnesses appear before the Registrar, are not entirely consistent with s 11(7) which appears to contemplate the Registrar of his own motion requiring parties to provide documents to him. That conclusion is somewhat supported by the legislative history. The same amendment which inserted the word 'determination' in s 11(5) inserted subs (6) - (8), which tends to suggest that the legislature saw those as the procedures appropriate and necessary to arrive at such a determination."
16 The primary Judge then turned to the question of procedural fairness. She mentioned that it had been accepted by both parties that the rules of natural justice were applicable. She said that the respondent contended that all that natural justice required was that the appellant should have the opportunity to put any material which it wished before the Registrar and that the appellant had had that opportunity and had made available to the Registrar a copy of its own valuer's report. She said that the appellant contended, on the other hand, that the rules of natural justice required that it be given a fair opportunity to correct or contradict any relevant material prejudicial to it and that this necessarily entailed an opportunity to see, and comment upon, anything adverse in the respondent's valuer's report.
17 As I have foreshadowed, the primary Judge rejected the appellant's submissions. She did so for a number of reasons.
18 First, she reiterated that the statutory scheme contemplated a different procedure pursuant to s 11 from that prescribed by Pt III. She considered that, because express provision was made for a hearing before the Registrar in Pt III, that tended to suggest that a hearing, with its accompaniments such as the right to ask questions or to cross-examine the opposing party, was not intended in relation to disputes arising pursuant to s 11.
19 Next, she said (at [19]) that s 11 did provide for a means by which parties would be aware of the substance of anything adverse in a valuer's report which was to be referred to the Registrar. She mentioned that, under subs (4), the valuers are, where required, to provide reasons for
(Page 11)
- decision in writing as part of a statutory scheme in which informal discussion between the valuers is contemplated. In these circumstances, she said, one would expect each valuer to become aware of the substance of the other's opinion. She concluded that the overall scheme "suggests that it is intended that notice of matters which may be relevant to the Registrar's decision will be provided by the less formal procedures of s 11(3) and s 11(4)".
20 Finally, in this respect, she said (at [20]):
"As I have already noted, s 11(7) permits the Registrar to require the parties to furnish documents, valuations and other documents to him with no provision for disclosure or inspection thereafter. That provision suggests that disclosure of those materials to the parties, rather than to the Registrar, is not required. I am fortified in that conclusion by a consideration of the sorts of material which are likely to be found in valuer's reports. There will on many occasions be commercially sensitive information about rents and other conditions applicable either in respect of other shops within the same shopping centre or district, or in relation to other shops of the same kind (that is, offering similar goods) in other shopping centres which shops, or which centres, may be in direct competition with a party seeking a determination. It seems to me unlikely that the legislature would have intended that all of the detail of such information necessarily be made directly available to a commercial tenant or to a commercial landlord."
21 Her Honour concluded, at [21], that, for all of those reasons, natural justice did not require the Registrar to disclose either valuer's report to the other party, or to notify either party of the contents of the other's valuer's report, or to conduct a hearing in the ordinary sense.
22 Counsel for the appellant, in his submissions to us, contended that, once it is accepted that the rules of natural justice are applicable, it necessarily follows that more is required than was recognised by the primary Judge. He submitted that the legislature could not have contemplated that a determination could be made in circumstances in which the landlord's valuer had not seen or been made aware of the contents of the tenant's valuation report, provided to the Registrar, and hence had had no opportunity to make any submissions in respect of it. I have mentioned that, in this case, the reports were prepared after the consultation between the two valuers had taken place.
(Page 12)
23 It is trite law (as was accepted by the primary Judge) that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his or her interests which the repository of the power proposes to take into account in deciding upon its exercise: Kioa v West (1985) 159 CLR 550 at 628, per Brennan J. This basic principle was referred to by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 96 [140]. His Honour went on (ibid) to point out that, while this does not mean that all material which comes before the decision-maker must be disclosed, it does mean that, as Brennan J pointed out in Kioa at 629, "in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made".
24 That brings me to the question whether, and if so to what extent, this basic principle is excluded or limited by the Act, in the case of a reference under s 11(5). It is settled that, when a statute confers on a public official the power to do something which affects another's rights, interests or expectations, the rules of natural justice regulate the exercise of that power "unless they are excluded by plain words of necessary intendment": Annetts v McCann (1990) 170 CLR 596 at 598, per Mason CJ, Deane and McHugh JJ, and Miah, above, at [126] per McHugh J. Also, an intention on the part of the legislature to exclude the rules of natural justice should not be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: Annetts, above, (ibid); Miah, above, at [126] per McHugh J and cf at [49], per Gleeson CJ and Hayne J.
25 There is, in this appeal, no challenge to the primary Judge's conclusion that the procedure prescribed under Pt III of the Act was not intended to apply to determinations made pursuant to s 11(5). In my respectful opinion, her Honour was plainly right in that conclusion. However, that does not mean that, because similar rules of procedural fairness are not prescribed in the case of a determination made pursuant to s 11(5), some lesser (as opposed to different) standard of procedural fairness is necessarily contemplated: cfMiah, above, at [49].
26 In my respectful opinion, while the provisions of s 11 do contemplate less formal procedures than those provided for by s 20, and while I accept that the requirements of natural justice are neither absolute nor rigid (Miah (ibid)), there is nothing in s 11, read in its overall context, from which any implication should be drawn that the Registrar is at liberty to
(Page 13)
- deny to a party to a reference under s 11(5) the fundamental entitlement to deal with relevant matters adverse to its interests which the decision-maker proposes to take into account. That entitlement is, of course, designed to ensure that the decision is both informed and just: see Miah, above, at 115 [190], per Kirby J, and it seems to me that, if it does not comprehend, in this case, at least the right to read, and make submissions upon, the opposing valuer's report, there is a real risk that the decision will be neither.
27 It is true, as the primary Judge has pointed out, that s 11(4) gives to a party to the lease the right to obtain written reasons from a valuer acting under s 11(3)(a) or (b). However, that right seems to me to be directed to a case in which the question of the rental is resolved by the valuer appointed under subs (3)(a) or by the two valuers appointed under subs (3)(b). It does not seem to me to be directed to a case such as this, in which the two valuers, neither of whom had by then prepared a report, were unable, at their meeting, to reach any agreement. Nor does s 11(4) protect the interests of a party to the lease where the other party to the lease provides information to the Registrar in a case in which no person has acted under subs (3)(a) or (b) but leave to refer a question as to the rent payable has been obtained from the Registrar under subs 5(b).
28 There are many ways in which an error, even a fundamental error, might creep into a valuation report or, for that matter, into any other information supplied by a party to the Registrar at the latter's request, made under s 11(7). Relevant rental information might be wrongly recorded. Some point of distinction in what is described as a comparable transaction might be missed. A material consideration might be misunderstood or overlooked. There might even be a mathematical error. Without the opportunity to see and make submissions in respect of the opposing valuer's report, or other submission, a party to a lease can have no guarantee that errors will be discovered, or even that a different perspective will be properly understood. While I accept that issues of confidentiality might arise (although this will by no means always be the case), there are various means of protecting confidential information without denying to a party (or its advisors) the ability to correct any errors or omissions in the information, or submissions, made available to the decision-maker.
29 It also seems to me that the fundamental legal entitlement to which I have referred comprehends a right to be informed of any relevant conclusions, and of the possible basis for them, which might be arrived at by the Registrar as a result of his own (unilateral) inspections. The
(Page 14)
- Registrar is not, of course, a licensed valuer. That being so, the risk that, without assistance, he will misunderstand, or even overlook, the significance of something observed by him, or that he will overlook, or not sufficiently appreciate, some point of distinction between particular premises inspected by him, is very real. Consequently, if the parties are given no opportunity to have any input into the conclusions which might be drawn from those inspections (if, indeed, it is appropriate for the Registrar to conduct them at all) or from any other information unilaterally obtained by the Registrar, there is an appreciable risk of error on his part.
30 It consequently seems to me that in this case procedural fairness required that the appellant be given the information and opportunities to which I have referred.
31 I would consequently allow the appeal, set aside the order made by the primary Judge and order, in lieu, that the order nisi be made absolute and that a writ of certiorari be issued directing the Registrar to remove into this Court for the purpose of being quashed the determination made by him on 12 December 2002.
32 TEMPLEMAN J: I have had the advantage of reading in draft the reasons published by Steytler J. I agree with those reasons and the orders proposed by his Honour. There is nothing I wish to add.
3
14
1