Perth Market Amendment By-laws 2000 (WA)

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28 July 2000] GOVERNMENT GAZETTE, WA 3987
AG301*
Perth Market Act 1926

These by-laws come into operation on 1 August 2000.
Perth Market Amendment By-laws 2000

Made by the Perth Market Authority and approved and confirmed by the
Administrator in Executive Council.
1. Citation

These by-laws may be cited as the Perth Market Amendment
By-laws 2000.
2. Commencement

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[28 July 2000

3. The by-laws amended

The amendments in these by-laws are to the Perth Market
By-laws 1990*.
[* Published in Gazette 28 December 1990, pp. 6415-32.
For amendments to 21 July 2000 see 1999 Index to Legislation of Western Australia, Table 4, p. 205.]

4. By-law 3 amended
By-law 3(1) is amended as follows:

(a)

by inserting after the definition of "central trading area" the following definition -
"certificate of condemnation" means a certificate that
certifies that prescribed produce is unfit for sale;

(b) by deleting the definition of "principal";
(c) by deleting the full stop at the end of the definition of "the public market" and inserting a semicolon instead and inserting after that definition the following
definition -

IE

"written agreement" means a written agreement

between a supplier of prescribed produce and an occupier that is signed or otherwise executed by both parties to the agreement.
5. Division heading inserted
Before by-law 24 the following heading is inserted in Part 4 —

Division 1 - General ".

6. By-laws 27 to 28 repealed By-laws 27, 27A, and 28 are repealed.

7. Division 2 inserted
After by-law 32 in Part 4 the following Division is inserted -

Division 2 - Provisions applying to prescribed produce

supplied otherwise than under exempt

supply agreements

32A. Application of Division
(1) This Division applies in relation to prescribed produce

supplied otherwise than under an exempt supply
agreement.

28 July 20001 GOVERNMENT GAZETTE, WA 3989

(2) Except as provided for in a provision of this Division,
this Division applies despite anything to the contrary in
an agreement.
(3) In sub-bylaw (1) -
"exempt supply agreement" means a written
agreement for the supply of prescribed produce by
a supplier to an occupier -

(a) that -

(i)

is entered into by the supplier and the occupier before the produce leaves the premises of the supplier; and

(ii)

except as provided for in paragraph (b), is not subsequently varied;
(b) that specifies the price for the produce, the
circumstances in which the price may be
varied and the terms of payment of the price;
and

(c) under which the produce becomes the
property of the occupier.

32B. Duties of occupier to provide certain documents
relating to supply and sale of prescribed produce

(1) Within 7 days (or another period agreed by the
occupier and the supplier in a written agreement) after
an occupier is supplied with prescribed produce for the
purpose of sale by the occupier, the occupier is to give
to the supplier a receipt that specifies -

(a)

the type and quantity of produce supplied to the occupier;

(b)

the date on which the produce was supplied to the occupier; and

(c) unless the occupier gives details of the produce
to the supplier under by-law 32D(1) - details
of any produce that the occupier considers unfit
for sale and the reasons for that opinion.

(2) Within 3 days after an occupier sells prescribed
produce supplied to the occupier otherwise than under
a written agreement, the occupier is to give to the
supplier a notice that states -

(a) that the sale has taken place; and

(b)

the quantity, grade, size and variety of any produce referred to in sub-bylaw(1)(a) that has not been sold.

(3) A notice that is required to be given under

sub-bylaw (2) is to be given in the manner agreed by
the occupier and the supplier or, if there is no
agreement, by letter sent by ordinary prepaid post

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[28 July 2000

mailed on or before the expiry of the period referred to
in that sub-bylaw.
(4) Within 7 days (or another period agreed by the
occupier and the supplier in a written agreement) after an occupier sells prescribed produce, the occupier is to give to the supplier a sale note that specifies -

(a) the date on which the produce was sold to the buyer; and
(b) the amount that is the difference between -
(i) the total amount paid or payable by the buyer to the occupier for the purchase of the produce; and
(ii) the total amount payable by the occupier to the supplier for the supply of that produce.

(5) An occupier is to specify in a sale note given under
sub-bylaw (4) details of each amount that makes up at
least 10% of the difference referred to in paragraph (b)
of that sub-bylaw.
(6) Unless it is otherwise agreed by the occupier and the
supplier in a written agreement, an occupier is to
specify in a sale note given under sub-bylaw (4) -

(a)

the quantity of, and the price paid or payable by the buyer to the occupier for, each separate grade, size and variety of produce sold to the buyer; and

(b)

the price payable by the occupier to the supplier for each separate grade, size and variety of produce sold to the buyer.

(7) Within 7 days after an occupier sells prescribed

produce, the occupier is to give to the buyer an invoice
that specifies -

(a)

the date on which the produce was sold to the buyer;

(b)

the quantity, grade, size and variety of the produce sold to the buyer; and

(c)

the price for which the produce was sold to the buyer and the terms of payment of that price.

32C. Duty of occupier to pay supplier
(1) Within 21 days (or another lesser period agreed by the occupier and the supplier in a written agreement) after an occupier sells an item of prescribed produce, the

occupier is to pay the supplier for that produce.

(2) If circumstances outside the occupier's control prevent the full amount to be paid to the supplier from being

28 July 20001 GOVERNMENT GAZETTE, WA 3991
determined within the period provided for under
sub-bylaw (1), the occupier is to make a reasonable
estimate of that amount and is to pay the estimated
amount within that period to the supplier.

(3) If an occupier pays an estimated amount under

sub-bylaw (2), the occupier is as soon as is practicable
to determine the full amount payable to the supplier
and give the supplier details of that determination and,
within 60 days after the sale of the prescribed
produce -

(a)

the occupier is to pay to the supplier any amount by which the full amount exceeds the estimated amount; or

(b)

the supplier is to repay to the occupier any amount by which the estimated amount exceeds the full amount,
as the case requires.
(4) Unless it is otherwise agreed by the occupier and the
supplier in a written agreement, an amount payable
under sub-bylaw (1) is to include any amount paid by
the supplier as a deposit on a container hired by the
supplier for the purpose of supplying the prescribed
produce to the occupier.

32D. Prescribed produce unfit for sale

(1) Unless it is otherwise agreed by the occupier and the
supplier in a written agreement, as soon as is
practicable after an occupier forms the opinion that
prescribed produce supplied to the occupier is unfit for
sale, the occupier is to make reasonable efforts to give

the supplier details of that produce.

(2) If an occupier gives a supplier details of prescribed
produce that the occupier considers unfit for sale, the
supplier may -

(a) take possession of the produce;

(b)

ask the occupier to send the produce to a specified person at a specified place; or

(c)

ask the occupier to have the condition of the produce assessed by a person (an "assessor") who the occupier and supplier agree -
(1) is independent of the occupier and the

supplier; and

(ii) has experience or qualifications
appropriate to the performance of the
assessment.

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(3) If—

(a)

the condition of prescribed produce is to be assessed under paragraph (c) of sub-bylaw (2); and

(b)

the occupier and the supplier are unable to agree to an assessor for the purposes of that paragraph,
a person nominated by the Authority is to be the
assessor for those purposes.

32E. Disposal of prescribed produce unfit for sale

(a)

despite making reasonable efforts to do so, an occupier is unable to contact a supplier for the purposes of by-law 32D(1); or

(b)

after an occupier has given a supplier details of prescribed produce that the occupier considers unfit for sale, the supplier does not -
(1) take possession of the produce; or
(ii) ask the occupier to send the produce to a
specified person at a specified place or
have the condition of the produce
assessed under by-law 321)(2),

the occupier may, subject to sub-bylaw (2), dispose of
the produce as the occupier thinks fit.

(2) An occupier may dispose of prescribed produce under sub-bylaw (1) only if—

(a)

at least 24 hours have passed since the occupier first attempted to contact the supplier in relation to the produce or since the occupier gave the
supplier details of the produce, as the case
requires; and

(b)

an assessment has been made of, and a certificate of condemnation obtained from the assessor in relation to, the produce.

32F. Liability for costs
(1) A supplier who asks an occupier to send prescribed
produce to a specified person at a specified place under
by-law 321)(2)(b) is liable for any reasonable costs
incurred by the occupier in complying with that
request.

28 July 20001 GOVERNMENT GAZETTE, WA 3993
(2) A supplier who supplies prescribed produce that an
occupier disposes of under by-law 32E(l) is liable for
any reasonable costs incurred by the occupier in -

(a)

obtaining an assessment of, and a certificate of condemnation in relation to, the produce; and
(b) disposing of the produce.

(3) If an occupier gives a supplier details of the costs
incurred by the occupier for which the supplier is liable
under sub-bylaw (1) or (2), the occupier may -

(a)

deduct those costs from any amount payable by the occupier to the supplier in relation to the supply of prescribed produce; or

(b)

to the extent that those costs are not deducted under paragraph (a), recover them in a court of competent jurisdiction as a debt due to the occupier.

32G. Restrictions on sate of prescribed produce

(1) Unless authorised to do so by a document to which
sub-bylaw (2) applies, an occupier who sells, or offers
to sell, prescribed produce in the public market
between 7.30 a.m. and 12 noon on a Saturday commits
an offence.
Penalty: $2 000.
(2) This sub-bylaw applies to a document that is -

(a) a written agreement, under which the

that includes provisions that enable the
prescribed produce is supplied to the occupier,
supplier, either in the agreement or in a separate
written notice, to elect to authorise, or not to
authorise, the occupier for the purposes of
sub-bylaw (1); or

(b)

a written notice, as provided for in the agreement referred to in paragraph (a), given by the supplier to the occupier.

(3) A written agreement or written notice referred to in
sub-bylaw (2) may give an authorisation that applies
to -

(a) prescribed produce in general; or

(b)

prescribed produce specified by reference to grade, size or variety.

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3211. Occupiers to keep copies of documents and
agreements
(1) An occupier is to keep for 2 years after being supplied with prescribed produce for the purpose of sale by the occupier or after selling prescribed produce -

(a)

a copy of any receipt, notice, sale note or invoice (in this by-law and by-law 321 referred to as a "prescribed document") given by the occupier under by-law 32B in relation to the supply or sale of the prescribed produce; and

(b)

any account, book, record or other document that relates to that supply or sale.

(2) An occupier may comply with sub-bylaw (1) -

(a) by keeping the prescribed document or other document itself; or
(b) by recording or storing the prescribed document or other document by means of an electronic process that -
(i) keeps the particulars recorded or stored in the form in which they were originally recorded or stored; and
(ii) enables those particulars to be reproduced in written form.

(3) If an occupier enters into a written agreement, the
occupier is to keep a copy of the agreement for 2 years
after the day on which the agreement ceases to have
effect.

321. Occupier to produce documents and allow
inspection

(1) The manager or an authorised person may during

normal business hours require an occupier -

(a) to produce; or

(b)

to allow the manager or authorised person to inspect, or take extracts from or copies of,
a prescribed document or other document or written
agreement that the occupier is required to keep under
by-law 32H.

(2) An occupier who -

(a)

fails to comply with a requirement under sub-bylaw (1); or

(b)

hinders or obstructs the manager or authorised person in the performance of a function under that sub-bylaw,
commits an offence.
Penalty: $2 000.

28 July 20001 GOVERNMENT GAZETTE, WA 3995

32.J. Occupier not to purchase prescribed produce or sell
prescribed produce to associates unless authorised

(1) Unless authorised to do so by a document to which
sub-bylaw (2) applies, an occupier who, having been
supplied with prescribed produce for the purpose of
sale by the occupier -

(a)

purchases the prescribed produce on the occupier's own account, whether solely or jointly with another person; or

(b)

sells the prescribed produce to a person with whom the occupier is associated within the meaning of by-law 32K,
commits an offence.
Penalty: $2 000.

(2) This sub-bylaw applies to a document that is -

(a)
prescribed produce is supplied to the occupier,
that includes provisions that enable the
a written agreement, under which the written notice, to elect to authorise, or not to authorise, the occupier for the purposes of sub-bylaw (1); or

(b)

a written notice, as provided for in the agreement referred to in paragraph (a), given by the supplier to the occupier.

(3) If an occupier is authorised to purchase prescribed
produce on the occupier's own account, as referred to
in sub-bylaw (1)(a), the occupier is to give to the
supplier within 7 days after the purchase written notice
of having made the purchase.

(4) If an occupier is authorised to sell prescribed produce to a person referred to in sub-bylaw (1)(b), the occupier
is to give to the supplier within 7 days after the
purchase written notice of the name of the person to
whom the produce was sold.

32K. Associated persons

(1) For the purposes of by-law 32J, an occupier is

associated with another person (the "other person") if
the occupier is -
(a) the other person's spouse (including de facto spouse), brother or sister;
(b) the other person's -
(i) parent or remoter lineal ancestor; or
(ii) child or remoter issue;

(c) the other person's business partner;

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(d) a corporation of which the other person is an officer;
(e) if the other person is a corporation — an officer of that corporation;
(0 an officer of a corporation of which the other person is also an officer;
(g) an employee or employer of the other person;
(h) an employee of an individual of whom the other
person is also an employee;

(i) a corporation whose directors are accustomed

or under an obligation, whether informal or
formal, to act in accordance with the directions,
instructions or wishes —

(i) of the other person; or
(ii) if the other person is a corporation — of the directors or managers of the corporation;
(j) a corporation in accordance with the directions,
instructions or wishes of which, or of the directors or managers of which, the other person is accustomed or under an obligation,
whether informal or formal, to act;

(k) a corporation that the other person controls;
(1) if the other person is a corporation — a person
who holds a substantial interest in that
corporation; or

(m) a person who, within the meaning of this

sub-bylaw, is associated with a person who is
associated with the other person.
(2) In sub-bylaw (1) —

"controls" has the same meaning as it has in the

Corporations Law.

32L. Review

(1) The Authority is to carry out a review of the operation
and effectiveness of this Division as soon as is
practicable after 1 August 2002.
(2) The Authority is to prepare a report based on the
review and, as soon as is practicable after the report is
prepared, is to submit the report to the Minister.

Made by the Perth Market Authority by resolution adopted on the 21st day of July 2000.
GRAEME ANDERSON, Chairman.
ROBERT HALLIDAY, Manager.

Approved and confirmed by the Administrator,
M. C. WAUCHOPE, Clerk of the Executive Council.

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(b)	by deleting the definition of "principal";
(c)	by deleting the full stop at the end of the definition of "the public market" and inserting a semicolon instead and inserting after that definition the following

(2)	Except as provided for in a provision of this Division, this Division applies despite anything to the contrary in an agreement.
(3)	In sub-bylaw (1) - "exempt supply agreement" means a written

32B.	Duties of occupier to provide certain documents relating to supply and sale of prescribed produce
(1)	Within 7 days (or another period agreed by the occupier and the supplier in a written agreement) after an occupier is supplied with prescribed produce for the purpose of sale by the occupier, the occupier is to give to the supplier a receipt that specifies -

(a)	the type and quantity of produce supplied to the occupier;
(b)	the date on which the produce was supplied to the occupier; and

(c)	unless the occupier gives details of the produce
to the supplier under by-law 32D(1) - details of any produce that the occupier considers unfit for sale and the reasons for that opinion.

(a)	that the sale has taken place; and
(b)	the quantity, grade, size and variety of any produce referred to in sub-bylaw(1)(a) that has not been sold.

(a)	the date on which the produce was sold to the buyer; and
(b)	the amount that is the difference between -

(a)	the quantity of, and the price paid or payable by the buyer to the occupier for, each separate grade, size and variety of produce sold to the buyer; and
(b)	the price payable by the occupier to the supplier for each separate grade, size and variety of produce sold to the buyer.

(a)	the date on which the produce was sold to the buyer;
(b)	the quantity, grade, size and variety of the produce sold to the buyer; and
(c)	the price for which the produce was sold to the buyer and the terms of payment of that price.

(a)	the occupier is to pay to the supplier any amount by which the full amount exceeds the estimated amount; or
(b)	the supplier is to repay to the occupier any amount by which the estimated amount exceeds the full amount,

32D.	Prescribed produce unfit for sale
(1)	Unless it is otherwise agreed by the occupier and the supplier in a written agreement, as soon as is practicable after an occupier forms the opinion that prescribed produce supplied to the occupier is unfit for sale, the occupier is to make reasonable efforts to give

(a)	take possession of the produce;
(b)	ask the occupier to send the produce to a specified person at a specified place; or
(c)	ask the occupier to have the condition of the produce assessed by a person (an "assessor") who the occupier and supplier agree -

(a)	the condition of prescribed produce is to be assessed under paragraph (c) of sub-bylaw (2); and
(b)	the occupier and the supplier are unable to agree to an assessor for the purposes of that paragraph,

(a)	despite making reasonable efforts to do so, an occupier is unable to contact a supplier for the purposes of by-law 32D(1); or
(b)	after an occupier has given a supplier details of prescribed produce that the occupier considers unfit for sale, the supplier does not -

(a)	at least 24 hours have passed since the occupier first attempted to contact the supplier in relation to the produce or since the occupier gave the
supplier details of the produce, as the case requires; and
(b)	an assessment has been made of, and a certificate of condemnation obtained from the assessor in relation to, the produce.

(a)	obtaining an assessment of, and a certificate of condemnation in relation to, the produce; and
(b)	disposing of the produce.

(a)	deduct those costs from any amount payable by the occupier to the supplier in relation to the supply of prescribed produce; or
(b)	to the extent that those costs are not deducted under paragraph (a), recover them in a court of competent jurisdiction as a debt due to the occupier.

32G.	Restrictions on sate of prescribed produce
(1)	Unless authorised to do so by a document to which sub-bylaw (2) applies, an occupier who sells, or offers to sell, prescribed produce in the public market between 7.30 a.m. and 12 noon on a Saturday commits an offence.
Penalty: $2 000.

(a)	a written agreement, under which the
that includes provisions that enable the
prescribed produce is supplied to the occupier,
supplier, either in the agreement or in a separate written notice, to elect to authorise, or not to authorise, the occupier for the purposes of sub-bylaw (1); or
(b)	a written notice, as provided for in the agreement referred to in paragraph (a), given by the supplier to the occupier.

(a)	prescribed produce in general; or
(b)	prescribed produce specified by reference to grade, size or variety.

(a)	a copy of any receipt, notice, sale note or invoice (in this by-law and by-law 321 referred to as a "prescribed document") given by the occupier under by-law 32B in relation to the supply or sale of the prescribed produce; and
(b)	any account, book, record or other document that relates to that supply or sale.

(a)	by keeping the prescribed document or other document itself; or
(b)	by recording or storing the prescribed document or other document by means of an electronic process that -

(a)	to produce; or
(b)	to allow the manager or authorised person to inspect, or take extracts from or copies of,

(a)	fails to comply with a requirement under sub-bylaw (1); or
(b)	hinders or obstructs the manager or authorised person in the performance of a function under that sub-bylaw,

32.J.	Occupier not to purchase prescribed produce or sell prescribed produce to associates unless authorised
(1)	Unless authorised to do so by a document to which sub-bylaw (2) applies, an occupier who, having been supplied with prescribed produce for the purpose of sale by the occupier -

(a)	purchases the prescribed produce on the occupier's own account, whether solely or jointly with another person; or
(b)	sells the prescribed produce to a person with whom the occupier is associated within the meaning of by-law 32K,

(d)	a corporation of which the other person is an officer;
(e)	if the other person is a corporation — an officer of that corporation;

32L. Review
(1)	The Authority is to carry out a review of the operation and effectiveness of this Division as soon as is practicable after 1 August 2002.
(2)	The Authority is to prepare a report based on the review and, as soon as is practicable after the report is prepared, is to submit the report to the Minister.