PERTH AIRPORT and SMARTE CARTE AUSTRALIA
[2023] WASAT 72
•17 AUGUST 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA)
CITATION: PERTH AIRPORT and SMARTE CARTE AUSTRALIA [2023] WASAT 72
MEMBER: JUDGE K GLANCY, DEPUTY PRESIDENT
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 17 AUGUST 2023
PUBLISHED : 17 AUGUST 2023
FILE NO/S: CC 184 of 2023
BETWEEN: PERTH AIRPORT
Applicant
AND
SMARTE CARTE AUSTRALIA
Respondent
ATTORNEY-GENERAL FOR WESTERN AUSTRALIA
Amicus Curiae
Catchwords:
Application made pursuant to s 13(7) of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) for approval of early termination and automatic termination of clauses in Licence – Licence on a Commonwealth place – Jurisdiction of Tribunal to determine application – Tribunal is not exercising judicial power in determining the application – Is the Licence a retail shop for the purpose of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) – Existence of special circumstances justifying inclusion of the proposed early termination clause – Further evidence required from applicant
Legislation:
Airports Act 1996 (Cth)
Airports Regulations 1997 (Cth)
Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 3, s 13, s 13(6)(a), s 13(6)(b), s 13(6)(c), s 13(6)(d), s 13(7)
Commonwealth Constitution and the Commonwealth Places (Application of Laws) Act 1970 (Cth), s 4, s 4(1), s 4(2), s 4(2)(a), s 4(5)(c), s 4(6), s 6(4), s 52(i)
Commonwealth Constitution, s 52, s 52(i), s 75, s 76, s 109
Retail Leases Act 2003 (Vic), s 3
Retail Shop Leases Act 1994 (Qld), s 50
Retail Leases Act 1994 (NSW), s 3
State Administrative Tribunal Act 2004 (WA), s 5, s 8, s 13, s 14, s 60, s 90
Result:
Finding that Tribunal has jurisdiction to determine application for early termination clause
Orders made permitting the filing of further evidence and submissions as to issue of retail shop and existence of special circumstance
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
| Amicus Curiae | : | N/A |
Solicitors:
| Applicant | : | Allens |
| Respondent | : | N/A |
| Amicus Curiae | : | State Solicitor's Office |
Cases referred to in decision:
Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542
Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476
GS v MS [2019] WASC 255
Owners of Strata Plan 58161 and Hanssen Pty Ltd [No2] [2023] WASAT 7
Pinkstone v R (2004) 219 CLR 444
Precision Data Holdings v Wills [1991] HCA 58; (1991) 173 CLR 167; (1991) 66 ALJR 171; (1991) 104 ALR 317; (1991) 10 ACLC 1; (1991) 6 ACSR 269
Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1
Synicast Pty Ltd and Showroom X Pty Ltd [2023] WASAT 47
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction and outcome
On 7 February 2023, the applicant, Perth Airport Pty Ltd, made an application to the Tribunal, purportedly pursuant to s 13(7) of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) (CT(RS)A Act), seeking approval to include two clauses in a licence (as varied and extended by an extension) it had entered into with Smarte Carte Australia Pty Ltd (variously referred to as 'Smarte Carte' and 'the Tenant') which commenced on 1 August 2022 (the Licence).[1]
[1] Section 3 of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) defines the terms 'lease' to include licences.
The clauses which were sought to be included in the Licence are:
(a)a clause permitting the Landlord to determine the Licence prior to the expiration of the Tenant's minimum statutory term under the CT(RS)A Act; and
(b)a clause providing for automatic termination of the Licence in certain circumstances, in accordance with the mandatory termination provisions in the Airports Act 1996 (Cth) (Airports Act) and the Airports Regulations 1997 (Cth) (Airports Regulations).
The land, the subject of the Licence, is a Commonwealth place.[2] Because of that fact, in the exercise of the implied power referred to in [11], [12] and [16] below, following receipt of the application, I invited submissions from the parties and from the Attorney‑General for Western Australia as Amicus Curiae, for the purposes of ensuring that the Tribunal had jurisdiction to deal with the substantive application made under s 13(7) of the CT(RS)A Act.
[2] The applicant and the Attorney‑General both accept that is the case. The parties agree that the land the subject of the licence, being at the Perth Airport, is a Commonwealth place. It is land which the High Court has recognised was acquired by the Commonwealth for a public purpose within the meaning of s 52(i) of the Commonwealth Constitution and the Commonwealth Places (Application of Laws) Act1970 (Cth). It was determined in Pinkstone v R (2004) 219 CLR 444 that the lease of the land to a private corporation does not change the status of the land as a Commonwealth place.
The Applicant was content to rely on the very helpful submissions filed by the Amicus in relation to the question of jurisdiction. The Respondent informed the Tribunal that it supported the granting of the approval to include the two provisions in the Licence but did not intend to participate any further in the proceeding.
On 14 July 2023, the Applicant informed the Tribunal that it no longer wished to have the Tribunal determine that part of its application which concerned the approval of the automatic right of termination. That was, no doubt, because of the Amicus' submissions that the Tribunal had no jurisdiction to determine that matter and that the automatic termination would simply apply by operation of the relevant provisions of the Airports Act 1996 (Cth) (Airports Act) and the Airports Regulations 1997 (Cth) (Airports Regulations).
I also sought submissions in relation to the question of whether the provision of a site for sleeping pods for short term use by people at Perth Airport is a retail shop for the purposes of the CT(RS)A Act. The applicant provided submissions in relation to that issue.
I have determined the issue of whether the Tribunal has jurisdiction to determine the application for approval to insert in the Licence a clause providing for early termination of the Licence and the issue of whether the Licence of land for the provision of sleeping pods constitutes a retail shop on the documents as I am permitted to do by s 60 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). None of the parties objected to the determination of these issues on the documents.
I have concluded that:
1.the Tribunal has jurisdiction to determine the application if the premises, the subject of the Licence, is a retail shop; and
2.the use of the land, the subject of a Licence, may constitute a retail shop but that I cannot resolve the question without evidence being provided by the applicant.
As a consequence, and in light of the Tribunal's decision in Synicast Pty Ltd and Showroom X Pty Ltd,[3] I will make orders requiring the applicant to file any further evidence in support of its application, in particular as to the question of whether the premises, the subject of the Licence, is a retail shop and as to the existence of the special circumstances that would justify the approval of the early termination clause by the Tribunal.
[3] Synicast Pty Ltd and Showroom X Pty Ltd [2023] WASAT 47 (Synicast).
Jurisdiction
Jurisdiction under the SAT Act or the CT(RS)A Act
The Tribunal's jurisdiction to deal with any matter is derived from the SAT Act and from enabling Western Australian legislation which expressly confers authority on the Tribunal to determine applications for relief in its original jurisdiction or in its review jurisdiction.[4]
[4] SAT Act, Cf s 8, s 13 and s 14.
As the Tribunal said in Owners of Strata Plan 58161 and Hanssen Pty Ltd [No2]:[5]
There is no doubt that the Tribunal has a duty and concomitant authority – an incidental jurisdiction – to ensure that a proceeding commenced in or referred to the Tribunal is, and remains, within its jurisdiction to hear and determine.
(footnotes omitted)
[5] Owners of Strata Plan 58161 and Hanssen Pty Ltd [No2] [2023] WASAT 7 (Hanssen [No 2]) at [9] (Pritchard P, Aitken SM and Conley M).
After recognising that duty and authority the President made the following observation, which I respectfully adopt, regarding what the performance of that incidental jurisdiction requires of the Tribunal, by saying:
In every case, in order to comply with its duty to ensure that it has jurisdiction, the Tribunal will, at the least, need to confirm that an application made or referred to it is made or referred pursuant to a provision of the SAT Act or of other enabling legislation.[6]
[6] Hanssen [No 2] at [10] (Pritchard P, Aitken SM and Conley M).
In this case, the application before me has been brought under s 13(7) of the CT(RS)A Act, which is within what the President, Justice Pritchard, recently described as 'the rather convoluted' terms of s 13 of the Act.[7] It is not necessary for present purposes to set out in full the terms of s 13 of the CT(RS)A Act. It suffices to observe that it permits a departure from a tenant's right provided in the CT(RS)A Act to the option to extend the term of the lease to a period of up to five years. That right to an option to extend a lease to a five‑year term is a valuable and important right recognised in the Act since, if exercised, it prohibits the landlord from terminating the lease before the expiry of that five‑year term except in the limited circumstances set out in s 13(6)(a) – (d) of the CT(RS)A Act. One of those circumstances is where the Tribunal has given approval for the termination of the lease under s 13(7) of the CT(RS)A Act.[8]
[7] Synicast at [20] (Pritchard P).
[8] Synicast at [21] (Pritchard P).
Section 13(7) of the CT(RS)A Act, therefore, confers upon the Tribunal jurisdiction to deal with the application for approval. The Tribunal deals with matters under that section in the exercise of its original jurisdiction.
In a case where a claim or defence may fall within federal jurisdiction, the Tribunal's enquiry as to its jurisdiction does not stop with its confirmation that the SAT Act, or other enabling legislation, has conferred original or review jurisdiction on it. That is because the Tribunal, not being a Chapter III court, will have no jurisdiction to exercise judicial power in respect of matters which are within federal jurisdiction.[9] The Tribunal will therefore, on occasions, need to take further steps to determine whether it has jurisdiction to deal with a matter.
[9] Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304 esp at [43], [50] (Kiefel CJ, Bell and Keane JJ); at [68] – [69], [119] – [120] (Gageler J); at [145] – [146] (Nettle J); at [150] – [151], [187] – [188], [192] – [193] (Gordon J); at [203] – [205], [252] – [257], [260] (Edelman J).
As the Tribunal also said in Hanssen [No 2]:[10]
The SAT Act does not contain an express conferral of power on the Tribunal to take steps to ensure its own compliance with that duty. … Instead, the Tribunal has an implied power to take steps to secure its own compliance with its duty to ensure that proceedings before it are within its jurisdiction to hear and determine.[11]
[10] Hanssen [No 2] at [12] (Pritchard P, Aitken SM and Conely M).
[11] Cf Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476 at [21].
In Burns v Corbett, the High Court made it clear that state tribunals, which are not courts, cannot exercise judicial power in matters of the kind identified in ss 75 and 76 of the Constitution. After Burns v Corbett, it is clear that a state tribunal lacks jurisdiction to determine a matter in the following circumstances:
(a)the matter falls within one of the descriptions in ss 75 and 76 of the Constitution; and
(b)the Tribunal would be exercising judicial power in the determination of the matter; and
(c)the Tribunal is not a court.
The Amicus' submissions on the issue of whether the Tribunal is exercising judicial power
The Amicus submits that in determining an application under s 13(7) of the CT(RS)A Act, the Tribunal is exercising administrative power rather than judicial power. It makes the following submissions in support of that position.
First, the Tribunal is not settling a dispute between the parties about existing rights and obligations when making a decision under s 13(7) of the CT(RS)A Act. Even when an application is contested, the proceedings are not about resolving a dispute but are concerned with whether it is appropriate to create new contractual rights between the landlord and the tenant by the insertion of a new clause in an existing lease.
Secondly, the Tribunal is a specialist administrative tribunal not a court.
Thirdly, the power conferred by s 13(7) of the CT(RS)A Act is not of a kind which has historically been entrusted to courts and treated properly as part of judicial power.
Finally, the Tribunal has no power to enforce its own order under the SAT Act or the CT(RS)A Act. Where, as would be the case here, a non‑monetary order is made, the order may be registered in the Supreme Court and enforced as an order of the Supreme Court.
The Amicus submits that if the Tribunal determines that it is not exercising judicial power in determining an application under s 13(7) of the CT(RS)A Act, it does not need to consider the question of whether the matter falls within one of the descriptions in ss 75 and 76 of the Constitution.
Indicia of judicial power
In Attorney-General (Cth) v Alinta Ltd,[12] the High Court observed that there is no single combination of necessary or sufficient factors which taken together, identify a power as judicial power.
[12] Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542 (Alinta) at [35] (Kirby J); at [93] (Hayne J) (with whom Gleeson CJ and Gummow J generally agreed); at [151] Crennan and Keifel JJ).
However, it is well accepted that an important indicia of judicial power is that it involves the determination of presently existing legal rights and obligations in the context of some dispute about those matters. In Rizeq v Western Australia[13] the High Court stated that the essential function of judicial power is the quelling of controversies about legal rights and legal obligations through the ascertainment of the facts, the application of the law and the exercise, where appropriate, of judicial discretion. In GS v MS,[14] Quinlan CJ observed that 'judicial power is generally concerned with the ascertainment and enforcement of existing rights and obligations'. That is, it involves the determination of what a person's rights and obligations are, rather than what they should be.
[13] Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1 at [52] (Bell, Gaegler, Keane, Nettle and Gordon JJ).
[14] GS v MS [2019] WASC 255 at [62] (Quinlan CJ).
The High Court has held that the determination of what legal rights and obligations should be created will generally involve the exercise of non-judicial power.[15]
[15] Precision Data Holdings v Wills [1991] HCA 58; (1991) 173 CLR 167; (1991) 66 ALJR 171; (1991) 104 ALR 317; (1991) 10 ACLC 1; (1991) 6 ACSR 269 (Mason CJ, Brennan, Deane Dawson Toohey, Gaudron and McHugh JJ). Alinta at [2] – [3] (Gleeson CH); at [9], [14] (Gummow J); at [42] – [43] (Kirby J); at [96] (Hayne J); at [151] – [157], [173], [176] (Crennan and Kiefel JJ).
Factors relevant to the characterisation of a power as judicial and non-judicial include:
(a)historical considerations – some powers that do not involve the determination of a dispute between parties about their existing rights and obligations have nevertheless been entrusted to courts and treated as properly part of judicial power;
(b)the repository of the power – certain chameleon functions may be characterised as judicial or administrative depending on whether they are conferred upon an authority acting administratively or upon a court;
(c)whether the repository of a power has the power to enforce its own orders. The fact that an authority cannot enforce its own determination is a strong factor weighing against the characterisation of its power as judicial.
Resolution
Some factors support a conclusion that the determination of an application made under s 13(7) is the exercise of administrative power.
First, as the President recently set out in Synicast,[16] the power to make decisions of this kind was, until the jurisdiction was conferred on the Tribunal, conferred upon the Registrar of the Commercial Tribunal, who was the executive officer of that Tribunal and who was a legal practitioner employed under the Public Sector Management Act (1994) (WA). That is, the power was conferred upon and exercised by a public servant and not on the Commercial Tribunal.[17] Historically, therefore, decisions of this kind have been regarded as administrative in nature.
[16] Synicast at [56].
[17] Synicast at [56] (Pritchard P).
Secondly, in determining an application under s 13(7) of the CT(RS)A Act, the Tribunal is not resolving a dispute about existing rights and obligations but is called upon to determine whether 'special circumstances' exist in the particular case, such that those rights and obligations currently in existence should be varied by the inclusion of the proposed additional clause or clauses in the relevant lease.
Thirdly, the Tribunal is not constituted as a court, although on some occasions it does exercise judicial power.[18]
[18] eg: In granting interim injunctions under s 90 of the SAT Act.
There are also some factors which support the opposite conclusion.
First, in determining an application under s 13(7) of the CT(RS)A Act, the Tribunal is exercising discretion: s 13(7) empowers, but does not require, the Tribunal to approve the inclusion of the proposed provision in the lease where it is satisfied that 'special circumstances exist by reason on which such approval ought to be given'.
Secondly, the Tribunal must determine the existence or absence of special circumstances by the ascertainment of facts relevant to the particular case.
Having regard to the indicia of judicial power and the matters to which I have referred above, I find that the more compelling conclusion is that determining an application under s 13(7) of the Act by the Tribunal involves the exercise of administrative rather than judicial power.
Given that I am of the view that the Tribunal is not exercising judicial power in determining an application under s 13(7) of the CT(RS)A Act, it follows that the Tribunal is not required to consider whether the matter falls within one of the descriptions in ss 75 and 76 of the Constitution.
From that conclusion, it follows that if I find that, provided the CT(RS)A Act applies on a Commonwealth place, and the application is otherwise competent, for example it concerns a retail lease as the term identified in the CT(RS)A Act, then the Tribunal will have jurisdiction to determine it.
The Application of the CT(RS)A Act to a Commonwealth place
As I have already stated, it is not contentious that the land on which the Licence is located is a Commonwealth place. The application of state laws to Commonwealth places is dealt with in s 4 of the Commonwealth Places (Application of Laws Act) 1970 (Cth) (Commonwealth Places Act). Subsection 4(1) of that Act states:
The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time.
There are three situations in which State law will not apply to Commonwealth places.
First, subsection 4(2)(a) of the Commonwealth Places Act provides that s 4(1) does not extend to the provisions of a law of a State to the extent that, if that law applied, or had applied, in or in relation to a Commonwealth place, it would be, or have been invalid or inoperative in its application in or in relation to that Commonwealth place otherwise than by reason of the operation of s 52 of the Constitution in relation to Commonwealth places.
The effect of subsection 4(2) of the Commonwealth Places Act is that where, on the assumption that a State law applied of its own force, the State law is inconsistent (in a s 109 of the Commonwealth Constitution sense) with a Commonwealth law, the State law will not apply to the Commonwealth place.
Second, subsection 4(5)(c) of the Commonwealth Places Act provides that s 4(1) does not extend to the provisions of any law of a State in so far as it is not within the authority of the Parliament to make those provisions applicable in or in relation to a Commonwealth place.
Third, subsection 4(6) of the Commonwealth Places Act authorises the making of regulations which create additional exceptions to the operation of subsection 4(1) of that Act. This is of no relevance to this matter because no regulations have been made pursuant to s 6(4) of the Commonwealth Places Act in relation to any Western Australian legislation.
In this case, the Commonwealth has not covered the field with respect to commercial tenancies on Commonwealth places. There is no general retail or commercial tenancy legislation which has been enacted by the Commonwealth. However, the Airports Act and the Airports Regulations do contain provisions dealing with leases, subleases and licences granted in respect of 'core regulated airports' and airports situated on Commonwealth land.
The Attorney‑General submitted, for reasons advanced in his submissions, that the Tribunal should find that:
1.the resolution of the application for approval to include in the Licence the proposed early termination clause is within the Tribunal's jurisdiction pursuant to s 4(1) of the Commonwealth Places Act, the Arrangement and s 5 of the SAT Act, as the exercise of jurisdiction in respect of this clause would not be inconsistent with the Airports Act or the Airport Regulations and is the exercise of administrative power; and
2.the resolution of the application for approval to include in the Licence the proposed Automatic Termination Clause is not within the Tribunal's jurisdiction even though it involves the exercise of administrative power, because its inclusion would be inconsistent with the Airports Act and the Airports Regulations.
In this case, the Applicant no longer wishes to pursue its application for approval to include the automatic termination clause in the License.[19] In light of what is effectively the withdrawal of the application in relation to the automatic termination clause, I will not consider that proposed clause any further.
[19] Email from Applicant's solicitor dated 14 July 2023.
I find that the application for approval to include the proposed early termination clause is within the Tribunal's jurisdiction. It is the exercise of an administrative power by the Tribunal and is not inconsistent with the provisions of the Airports Act or the Airports Regulations and is not a matter that, by force of any regulation, is an exception to the operation of s 4(1) of the Commonwealth Places Act.
Is the Licence a lease for a retail shop?
The terms 'retail shop', 'retail shop lease' and 'retail shopping centre' are defined in s 3 of the CT(RS)A Act as follows:
retail shop means —
(a) any premises situated in a retail shopping centre that are used wholly or predominantly for the carrying on of a business; or
(b) any premises not situated in a retail shopping centre that are used wholly or predominantly for the carrying on of a retail business,
but does not include any premises excluded by regulation.
retail shop lease means a lease that provides for the occupation of a retail shop, unless —
(a) the retail shop —
(i) has a lettable area that exceeds 1 000 square metres; and
(ii) is not of a kind prescribed by the regulations for the purposes of this definition;
or
(b) the lease is held by —
(i) a listed corporation (within the meaning of the Corporations Act 2001 (Commonwealth) section 9) that would not be eligible to be incorporated as a proprietary company; or
(ii) a subsidiary (within the meaning of the Corporations Act 2001 (Commonwealth) section 9) of such a corporation;
or
(c) the lease is held by —
(i) a body corporate whose securities are listed on a stock exchange, outside Australia and the external territories, that is a member of the World Federation of Exchanges; or
(ii) a subsidiary (within the meaning of the Corporations Act 2001 (Commonwealth) section 9) of such a body corporate; or
(d) the lease is of a kind that is prescribed by the regulations as exempt from the operation of this Act.
retail shopping centre means a cluster of premises —
(a) 5 or more of which are used for the carrying on of a retail business; and
(b) all of which —
(i) have, or upon being leased would have, a common head lessor; or
(ia) comprise lots in a community titles scheme under the Community Titles Act 2018; or
(ii) comprise lots on a single strata plan under the Strata Titles Act 1985,
but, if the premises are in a building with 2 or more floor levels, includes only those levels of the building where a retail business is situated.
The phrase 'a cluster of premises' used in the definition of 'retail shopping centre' is not defined in s 3 of the CT(RS)A Act. Nor have I been able to identify or been referred to any judicial consideration of that phrase as used in the CT(RS)A Act.[20]
[20] The Applicant submitted that it has not been the subject of any judicial consideration in Western Australia.
According to the Macquarie Dictionary, the ordinary meaning of the word 'cluster' is:
1.a number of things of the same kind, growing or held together, a bunch; and
2.a group of things or persons near together.[21]
[21] Macquarie Dictionary Online.
In some retail leasing legislation in other Australian jurisdictions there is a requirement that a cluster of premises be regarded or promoted as 'shopping centre, shopping court, shopping mall or shopping arcade' in order to come within the definition of a 'retail shopping centre'.[22] That requirement is absent from the Western Australian definition.
[22] Retail Leases Act 2003 (Vic), s 3; Retail Shop Leases Act 1994 (Qld), s 5D; Retail Leases Act 1994 (NSW), s 3 and Retail and Commercial Leases Act 1995 (SA), s 3.
In the context of the CT(RS)A Act, it has been suggested that a 'cluster of premises' should be regarded as 'adjacent or other premises grouped together by a common landlord for the purposes of calculating contributions to the operating expenses'.[23]
[23] Ian Morrison, 'Changes to Commercial Tenancy Law in Western Australia' (2000), Australian Property Law Journal, Volume 8, Issue 185, page 3.
The applicant submits that:[24]
1.Perth Airport concessionaires comprise a 'cluster of premises';
2.as portions of Perth Airport (being designated retail areas within the terminals) comprise a cluster of five or more premises used for the carrying on of retail businesses all of which have a common head lessor (being Perth Airport Pty Ltd), those portions of the Perth Airport are each a 'retail shopping centre' for the purposes of the CT(RS)A Act;
3.the sleeping pods are situated within a designated retail area within Terminal 1, and are therefore a retail shop, as they are premises situated in a retail shopping centre that are used wholly or predominantly for the carrying out of a business; and
4.the Licence, the subject of the application under s 13(7), is therefore, a 'retail shop lease' as defined in s 3 of the CT(RS)A Act.
[24] Applicant's submissions dated 28 April 2023, para 34.
The Applicant submits, for the avoidance of doubt, that in the context of Perth Airport, the 'cluster of premises' relevantly comprising the 'retail shopping centre' excludes areas of the airport terminal that are not used wholly or predominantly for the carrying on of a retail business as defined in the CT(RS)A Act. It submits that that includes, but is not limited to, office areas.[25]
[25] Applicant's submissions dated 28 April 2023, para 35.
The Applicant might well be right. However, the resolution of that question involves consideration of the facts in this particular case. No affidavit has been filed which goes to any of the facts which need to be established in order for the Tribunal to determine whether the Licence is a retail shop for the purposes of the CT(RS)A Act.
In the circumstances, and in light of the fact that the application is not opposed, I will make an order permitting the Applicant to file evidentiary material in support of its submission on this issue.
Existence of special circumstance
I will also make orders requiring the Applicant to file any evidentiary material and submissions which it may wish to make as to the existence of 'special circumstances' which presently exist which would justify the grant of the approval sought within 21 days of the order. To date no such material is before the Tribunal. That might be because the issue of the need to provide evidence of the existence of a special circumstance has only recently been the subject of a decision of the Tribunal[26] which was published after this application was commenced.
[26] Synicast.
In Synicast, her Honour, Justice Pritchard, said:[27]
… the special circumstances said to justify the approval of the early termination clause must "exist" at the time of the application to the Tribunal. The requirement that the circumstances "exist" means that they must "be real or actual" or "part of objective reality", or they must "have being in a specified place or manner or under specified conditions". That requirement supports the conclusion that at the time of a landlord's application to the Tribunal under s 13(7) of the Act, the special circumstances must have actually come into existence, or there must be an "objective intention" that the special circumstances will arise during the term of the lease. Whether that intention exists will require the existence of objective and provable facts. (If an unforeseen special circumstance arises during the term of the lease, in a case where there is no early termination clause in the lease in respect of that circumstance, it would of course be open to the parties to negotiate a variation of the lease to permit early termination, and for the landlord to seek approval of under s 13(7) of the Act on the basis that the special circumstances then exists.)
[27] Synicast at [30].
Conclusion
I wish to conclude these reasons by thanking the Attorney‑General for the very helpful submissions on the issue about which I sought his assistance as Amicus Curiae.
Orders
The Tribunal makes the following orders:
1.By 8 September 2023, the Applicant is to file with the Tribunal and give to the respondent any evidentiary material on which it wishes to rely in relation to the question of whether the premises, the subject of the licence, is a retail shop; and
2.By 8 September 2023, the Applicant is to file with the Tribunal and give to the respondent any evidentiary material and written submissions on which it intends to rely in relation to the issue of existence of special circumstances which would justify the approval of the proposed early termination clause.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS
Associate to Judge Glancy
17 AUGUST 2023
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