Shop Distributive and Allied Employees Association v Department of Services, Technology and Administration and Coles Supermarkets Australia Pty Ltd

[2010] NSWADT 313

CITATION:	Shop Distributive and Allied Employees Association v Department of Services, Technology and Administration and Coles Supermarkets Australia Pty Ltd [2010] NSWADT 313
DIVISION:	General Division
PARTIES:	APPLICANT Shop Distributive and Allied Employees Association (Applicant) RESPONDENT Department of Services, Technology and Administration (First Respondent) Coles Supermarkets Australia Pty Ltd (Second Respondent)
FILE NUMBER:	103309
HEARING DATES:	17 December 2010
EXTEMPORE DECISION DATE:	17 December 2010
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Shop Trading Act – approval for Boxing Day trading - whether applicant has standing
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Shop Trading Act 2008 Retail Trading Act 2008
CASES CITED:	Carr v Finance Corp of Australia Ltd (1982) 150 CLR 139 Fisher v Hebburn Ltd (1960) 105 CLR 188 Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Marwell v Murphy (1957) 96 CLR 261 Victrawl Pty Ltd v Telstra Corporation Limited (1995) 183 CLR 595
REPRESENTATION:	APPLICANT I Latham (Applicant) RESPONDENT M Nagy (First Respondent) M Seck (Second Respondent)
ORDERS:	The application is dismissed on the basis that the Applicant does not have standing to prosecute the matter.

Reasons for Decision

1 The Shop Distributive and Allied Employees Association (“the SDA”) seeks the review of a decision by a delegate of the Director-General, Department of Services, Technology and Administration (“the First Respondent”) to allow the Coles Supermarket at Orange to trade on Boxing Day 2010.

2 The delegate’s decision, dated 15 November 2010, was made pursuant to the Shop Trading Act 2008 (“the former Act”). That Act has since been substantially amended and is now known as the Retail Trading Act 2008 (“the Act”). The amendments to the Act commenced on 29 November 2010.

3 Mr Gerard Dwyer sought to be joined as a party to the proceedings. Mr Dwyer is the National President of the SDA and the Secretary-Treasurer of the New South Wales Branch of the SDA. The SDA is an association of employees taken to be registered as an organisation under the Commonwealth Fair Work (Registered Organisations) Act 2009.

4 The Respondents have challenged the Applicants’ standing to bring these proceedings.

5 The matter came before me for hearing on 24 December 2010. Following the hearing, I dismissed the application, on the basis that the Applicant does not have standing to prosecute the matter, and I gave brief reasons for my decision. The First Respondent has sought more detailed reasons and these are now provided.

The Legislative Scheme

6 For the most part, the relevant provisions of the former Act and the Act are identical. However, there are some significant difference that have implications for this matter. These differences are discussed later in these reasons.

7 Part 3 of each Act concerns 'Exemptions' and provides for certain classes of exemptions to the prohibitions in section 4(1), including (for example) shops operating the particular types of businesses listed in Schedule I (section 7) and in respect of small shops (section 8).

8 Section 10(1) confers a discretion on the Director-General to grant an exemption from the requirement that a shop be kept closed, subject to the requirements of section 10(2) which provides:

(2) The Director-General must not grant an exemption for a shop unless the Director-General is satisfied that it is in the exceptional circumstances of the case in the public interest to do so, having regard to the following matters:

(a) the nature of the shop and the kinds of goods sold by the shop,

(b) the need for the shop to be kept open on the day or days concerned,

(c) the likely effect of the proposed exemption on the local economy, tourism and small businesses and other businesses in the area,

(d) the likely effect of the proposed exemption on employees of, or persons working in, the shop.

9 The right to seek review of a determination of the Director-General is pursuant to section 12 of the Act.

The Legislation Applicable In This Matter

10 A question arises in regard to whether the former Act or the Act are applicable in this matter. As noted, the decision under review was made on 15 November 2010. The former Act was amended by the Shop Trading Amendment Act 2010 which received assent on 29 November 2010.

11 The Act and the former Act recognise Boxing Day (among others) as a day of special community significance by section 4(1)(e), which requires shops to be kept closed 'at all times on Boxing Day'. That prohibition is subject to any exemption granted under Part 3 of the relevant Act: section 4(2).

12 On 6 October 2010, the Second Respondent applied for an exemption under section 10 of the former Act. It made an application for retail trading on Easter Sunday and Boxing Day for a period of 3 years in respect of its Orange Store.

13 As originally enacted on 30 June 2008, the former Act permitted the person who applied for the exemption to apply to the Tribunal for review of a decision of the Director-General to "refuse to grant or revoke an exemption" or as to "the conditions subject to which, or the period for which, an exemption is granted". It did not permit anyone other than the applicant for the exemption to seek review of the decision.

14 The former Act was amended and from 1 October 2009 to allow a person who considers himself or herself to have a "sufficient interest" in the application for the review to apply for a review of "any such decision”. The amended section 12 provided:

12 Reviews by Administrative Decisions Tribunal

(1) Any person who has applied for an exemption and is aggrieved by any of the following decisions may apply to the Administrative Decisions Tribunal for a review of the decision:

(a) a determination of the Director-General to refuse to grant or to amend or revoke an exemption,

(b) a determination of the Director-General as to the conditions subject to which, or the period for which, an exemption is granted.

(2) Any other person who considers himself or herself to have a sufficient interest in an application for an exemption under this Division may apply to the Administrative Decisions Tribunal for a review of any such decision.

(3) The Administrative Decisions Tribunal is not required to review a decision on the application of a person (other than the person who applied for the exemption) if it is not satisfied that the person has a sufficient interest in the application for exemption.

15 The former Act was again amended and from 29 November 2010 the amended section 12 provided:

12 Reviews by Administrative Decisions Tribunal

(1) Any person who has applied for an exemption and is aggrieved by any of the following decisions may apply to the Administrative Decisions Tribunal for a review of the decision:

(a) a determination of the Director-General to refuse to grant or to amend or revoke an exemption,

(b) a determination of the Director-General as to the conditions subject to which, or the period for which, an exemption is granted.

(2) Any other person who considers himself or herself to have a sufficient interest in an application for an exemption under this Division may apply to the Administrative Decisions Tribunal for a review of any such decision.

(3) The Administrative Decisions Tribunal is not required to review a decision on the application of a person referred to in subsection (2) if it is not satisfied that the person has a sufficient interest in the application for exemption.

(4) A representative of an industrial organisation of which persons employed or engaged in shops are entitled or eligible to become members may apply to the Administrative Decisions Tribunal for a review of any of the following decisions:

(a) a determination of the Director-General to grant or to amend an exemption,

(b) a determination of the Director-General as to the conditions subject to which, or the period for which, an exemption is granted.

(5) In this section:

industrial organisation means:

(a) an industrial organisation of employees within the meaning of the Industrial Relations Act 1996, or

(b) an association of employees registered as an organisation under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth.

16 The Respondents submit that the applicable legislation in this matter is that which was in place at the time the application for the exemptions was made i.e. 6 October 2010.

17 I agree with that submission. I also agree that at that time the former Act would not permit the Applicant standing to commence these proceedings.

18 Under section 12(2) of the former Act a person who considers he or she has a "sufficient interest" in an application for an exemption may apply to the Tribunal for a review of "any such decision". In my view, even if the Applicant could establish that it had "sufficient interest", the expression “any such decision ” refers to the class of decisions set out in section 12(1). That is (a) a determination of the Director-General to refuse to grant or to amend or revoke an exemption; or (b) a determination of the Director-General as to the conditions subject to which, or the period for which, an exemption is granted. It does not include the Director-General's decision to grant an exemption under section 10(1).

19 I do not accept that section 12(2) gives the SDA or a representative the right to apply for a review of a decision to grant an exemption. That right was included in section 12(4) of the Act by the 29 November 2010 amendments. Section 12(4) confers a right which did not exist before the assent of the provisions.

20 Alternatively, the Applicant argued that it had standing pursuant to section 12(2) and section 12(1)(b). I do not agree. In my view, there is no determination as to the conditions subject to which the exemption is granted for the purposes of section 12(1)(b). Accordingly, the Applicant has no right to apply under that provision.

21 It is therefore necessary to determine whether or not the Shop Trading Amendment Act 2010 amendments which received assent on 29 November 2010 operate retrospectively. If that is the case, then Mr Dwyer would have standing pursuant to section 12(4).

22 There is a presumption that, in the absence of a clear statement to the contrary, an Act will not have retrospective operation: Marwell v Murphy (1957) 96 CLR 261 at 267 (per Dixon CJ); Fisher v Hebburn Ltd (1960) 105 CLR 188 at 194; Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379. The presumption applies where the legislation would impinge on a person's existing legal rights or duties: Carr v Finance Corp of Australia Ltd (1982) 150 CLR 139 at 151. In this context, the concept of rights should not be interpreted narrowly.

23 However, the rule against retrospective operation only applies where statutes confer substantive rights and obligations rather than concerning matters of procedure only: Maxwell v Murphy at 286; Victrawl Pty Ltd v Telstra Corporation Limited (1995) 183 CLR 595 at 615; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503.

24 In my view, a right to have a decision reviewed and determined by a tribunal is a substantive right and not a mere matter of procedure. In this case, section 12(4) confers a new substantive right to apply for review which did not exist before 29 November 2010. There is a right to review the grant of an exemption that does not arise under section 12(2). The amendment also grants an entitlement to apply for review of a decision to grant an exemption even though the applicant may not have a “sufficient interest”.

25 These substantive provisions impinge on the rights of the Second Respondent to have its applications for exemption determined under the statutory provisions as they stood before 29 November 2010.

26 In my view, section 12(4) provides for a substantive right which applies to prospective applications for exemption made after the date of assent and not to applications made before that date.

27 That being the case, it is my view that neither Mr Dwyer nor the SDA has standing to commence these proceedings. Accordingly, the application should be dismissed.

Order

The application is dismissed on the basis that the Applicant does not have standing to prosecute the matter.