Sydney Markets Ltd v Wilson

[2010] NSWADTAP 45

Appeal Panel - Internal

CITATION:	Sydney Markets Ltd v Wilson [2010] NSWADTAP 45
PARTIES:	APPELLANT Sydney Markets Limited RESPONDENT William Wilson
FILE NUMBER:	099075
HEARING DATES:	7 April 2010
SUBMISSIONS CLOSED:	7 April 2010
DATE OF DECISION:	22 June 2010
BEFORE:	Patten D - Deputy President; Higgins S - Judicial Member; Weule B - Non-Judicial Member
CATCHWORDS:	Retail Leases-meaning of Retail Shop-meaning of retail shopping centre - markets
DECISION UNDER APPEAL:	Wilson v Sydney Markets Limited [2009] ADT 256
FILE NUMBER UNDER APPEAL:	095163
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1994 Retail Leases Act 1994 Sydney Markets Authority Dissolution Act 1997
CASES CITED:	Manly Council, v Malouf (2004) 61 NSWLR 394 Moweno v Status Promotions Pty Ltd (2003) NSWCA 376 Royal Automobile Club of Australia v The Sydney City Council (1992) 27 NSWLR282 at 293-294:
REPRESENTATION:	APPELLANT R Carruthers, counsel RESPONDENT D Williams, SC counsel
ORDERS:	1.Appeal allowed 2.Declarations (b) (c) (d) (e) (f) (g) and (h) made by the Tribunal on 29 October 2009 set aside. 3.Declare that the notice dated 9 July 2009 given by the appellant to the respondent was of no effect in so far as it purported to require actually or constructively the respondent to open stands 234, 235 and 236 at Paddy’s Market for trading on Wednesdays 4.No order as to costs.

REASONS FOR DECISION

1 This is an appeal from a decision of a Judicial Member given on 1 November 2009 (2009 NSW ADT 281). The appeal raises a number of questions of law in respect of which it is contended that the Tribunal erred.

2 Section 77 of the Retail Leases Act 1994 (the RLA), confers appellate jurisdiction upon an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997. Section 113 of the statute regulates such appeals in that they may be made on any question of law and with the leave of the Appeal Panel may extend to a review of the merits of the appealable decision. In this case, in addition to seeking the resolution of the identified questions of law, the appellant sought leave to extend the appeal to the merits.

3 The declarations and orders made by the Tribunal on 11 November 2009 were as follows:

1.Declare that:-

a. Applicant’s Occupancy Agreement for the shop conducted from stalls 234, 235 and 236 at Sydney’s Paddy’s Markets is a Retail Shop Lease in terms of the Retail Leases Act .

b. Sydney’s Paddy’s Markets is a retail shopping centre in terms of the Retail Leases Act .

c. Section 61 of the Retail Leases Act imports its words into the Applicant’s Occupancy Agreement.

d. the Wednesday trading proposed by the Respondent is a change in the Applicant’s core trading hours within the terms of the words imported into his Occupancy Agreement by s61 of the Retail Leases Act .

e. the Respondent cannot require the Applicant to vacate stalls 234, 235 and 236 on Wednesdays, for Wednesday trading by others until the Respondent has the approval in writing of a majority of the traders who are permanent stallholders trading at Sydney’s Paddy’s Markets.

f. the Respondent may not change the core trading hours of Sydney’s Paddy’s Markets to include Wednesday trading between 9am to 5pm until it has the approval in writing of a majority of the traders who are permanent stallholders trading at that venue.

g. the introduction or the advertising or promotion of Wednesday trading to stallholders in Paddy’s Haymarket is to clearly indicate that if such trading requires traders who are permanent stallholders to vacate their stands for Wednesdays, then such trading cannot take place until a majority of traders who are permanent stallholders vote to trade on that day.

h. the approval in writing is to be by way of a secret ballot, one vote per trader, which is to be conducted at such times as Applicant and Respondent may agree, or if they cannot agree, as directed by me, on application of either party on 12 November 2009 at 2pm.

The Facts

4 The facts, which gave rise to the declarations and orders made by the Tribunal and to the questions of law now raised may be summarised as follows:

5 Pursuant to the Sydney Markets Authority Dissolution Act 1997 (the SMADA), the appellant purchased the business undertaking of the Sydney Market Authority constituted under the Sydney Market Authority, Act 1968

6 Relevantly to this case, the appellant became entitled to the benefit of a licence to occupy stands at the Haymarket (the Haymarket site) previously granted by Rockvale Pty Ltd to the Sydney Market Authority,

7 Licences or permits held by any person from the Sydney Market Authority, and in force immediately before the appellant's purchase continued to remain in force in accordance with the terms of the SMDA.

8 Upon the Haymarket site, the appellant conducts a market known as Paddy's market, which comprises approximately 850 stands spread over an area under the one roof.

9 The respondent, Mr William Wilson has been entitled to occupy stands numbered 234, 235 and 236 at Paddy’s Market since 1997.

10 The respondent in relation to his stand was issued with a new form of occupancy agreement in 2003. Although it was common ground that such agreement was never completed and signed by the respondent it was also common ground that its terms, regulated, the relationship between the appellant and the respondent. It will be necessary to refer later, in some detail to the terms of the document.

11 At all relevant times, the respondent has occupied the stands allotted to him and has traded from them between the hours of 9 a.m. and 5 p.m. each Thursday, Friday, Saturday and Sunday. For this purpose, he has equipped and furnished them with signage, cupboards, display cabinets and counters and has left such furnishings, continuously in place, with the permission, express or implied, of the appellant.

12 For a consideration payable monthly, the respondent was granted approval to leave his unsold stock in place from the close of business each Sunday until the commencement of business the following Thursday.

13 During 2009, the appellant decided to open Paddy's Market for trading, each Wednesday, in addition to the four days, it had hitherto traded and the respondent was notified of this proposal. It culminated in a notice dated 9 July 2009 from the appellant to the respondent as follows:

Sydney’s Paddy’s Markets
HAYMARKET 9 July 2009

RENT FREE PERIOD – EARLY REGISTRATION

ADDITIONAL TRADING DAY - WEDNESDAY
COMMENCING 14 OCTOBER 2009

As previously advised, SML successfully negotiated the deferment of the additional Wednesday trading day (a requirement of our 30 year lease extension) from 1st July 2009 to Wednesday 14th October 2009 to coincide with the World Masters Games being held in Sydney, with up to 40,000 people visiting our City.

We are pleased to be able to offer our current Paddy’s Haymarket traders a RENT FREE period for Wednesday trading from 14th October until the end of November 2009 – that is 7 weeks rent free.

To take advantage of the rent free period offer you must register your commitment by completing the EARLY REGISTRATION below and returning it to SML by Monday 14th September 2009.

RETURN THE COMPLETED FORM:
1. Hand it in at the Market Office OR 2. Mail to PO Box 2, Sydney Markets 2129 OR 3. Fax to 9325 6300

YOU SHOULD BE AWARE OF THE FOLLOWING:

1. If you do not complete and return the appropriate Early Registration by 14th September you will not be eligible for the rent free incentive period.

2. Please note that if you do not trade on Wednesdays, from 14th October you will be required to remove your stock from the stand you occupy to allow for casual allocation on that day.

SML has committed to a comprehensive advertising campaign to support the introduction of Wednesday trading through press/media and internet exposure.

GERRY DARAS ROBYN LEES

14 The respondent has no wish to open his stands for business on Wednesdays, and wishes to resist any obligation to remove unsold stock from the areas allotted to him each Sunday night.

15 The pro forma occupancy agreement accepted as regulating the relationship between the appellant and the respondent contained, these provisions relevant to the dispute between them:

Background
A. SML is responsible for the management and operation of the Markets.
B. You wish to Sell Goods in the Markets and require the Premises for that purpose.
C. SML agrees to allow You to Sell Goods in the Markets and to occupy the Premises on the terms set out in this Occupancy Agreement.

………..

1.1 Definitions
In this Occupancy Agreement, unless the context requires otherwise:

Access Hours means the days and times when You may use and
occupy the Premises and/or be in the Markets or any part of the
Markets as advised by SML or as amended at any time by SML by
reasonable notice in writing to You;

…………

Attendance Time means the time by which You must be present
and occupying the Premises as advised by SML or as amended at
any time by SML by reasonable notice in writing to You;

…………

Casual Standholder means a person SML has allowed to occupy a
Stand on a daily basis, including Stands designated by SML as
casual stands and Stands a regular Standholder has failed to attend
pursuant to clause 6.8 of the Occupancy Agreement;
…………
Equipment includes bins, boxes, mobile offices, cartons, containers, packaging materials, tables, counters, racks, buckets, scales, pallets, trolleys, plant and machinery or any other item determined by SML to
be equipment;

…………..
Licence means your right to use and occupy the Premises and to
Sell Goods in the Markets pursuant to the terms set out in this
Occupancy Agreement;
………
Markets means any land including the Premises, Common Areas, buildings, structures and property used, owned and/or controlled by SML:

Market Category means each of the markets conducted by SML at the markets commonly known as:
(a) Sydney's Paddy's Markets;
…………

Occupancy Agreement means:
(a) the occupancy agreement entered into between SML and a Standholder or otherwise determined by SML to apply in respect of the Standholder's use and occupation of a Stand; and/or
…………

Occupier means any person who:
(a) occupies a Stand or Store pursuant to an Occupancy
Agreement;
…………..

Premises :
(a) in the Occupancy Agreement, has the meaning given in paragraph (a) of the definition of Trading Premises; or
………..


Relocation has the meaning given in clause 19.1;

Relocation Notice means a relocation notice issued under clause 19.2 pursuant to clause 19 of the Occupancy Agreement;

Rent means the amount charged by SML to You for the use and occupation of the Premises (excluding Dues) as advised by SML or as varied by SML at any time by 30 days' notice in writing to You in accordance with clause 12 of the Occupancy Agreement;
………

Stand means any open floor space or other space in the Markets identified by SML as a stand;
…………..

Standholder means any person occupying a Stand pursuant to an Occupancy Agreement or other arrangement with SML;
………….

Sydney's Paddy's Markets means the retail markets conducted by SML for the sale of general goods, services, merchandise and food items;
………..

Trading Hours means:
(a) the days as indicated in Items 7 to 12 of Schedule 1; and
(b) the times as advised by SML or as amended at any time by
SML,
when an Occupier may Sell Goods from the Premises;

Trading Premises means:
(a) the Stand or Store occupied by You pursuant to the terms of
the Occupancy Agreement as indicated in Item 3 of Schedule 1 and in the Market Category as indicated in Item 4 of Schedule 1; and
………….


Your Property means your property inside the Premises and/or the
Markets and includes your Goods, Equipment, fixtures , fittings, signs.
………

4.1 Right to occupy
Subject to the terms of this Occupancy Agreement, SML grants You the right to:
(a) use and occupy the Premises; and
(b) enter and remain in the Markets,

during Access Hours.

4.2 Access
Your Licence only allows You to use and occupy the Premises and be present in the Markets during Access Hours.

4.3 Outside of Trading Hours
Notwithstanding clauses 4.1 and 4.2, outside of Trading Hours but during Access Hours, the following persons have the right to use and occupy the Premises:
(a) a bona fide employee of You engaged in the business being conducted at the Premises;
(b) an officer of You; or
(c) a person permitted by SML or an Authorised Officer to enter or be in the Premises outside of Trading Hours.
…………….

6.l Occupation
(a) No person other than You may use or occupy the Premises.
(b) You may not have a beneficial interest in any other Premises other than these Premises or other Premises in respect of which You have a Licence without the informed written consent of SML.
(c) You must not conduct business or Sell from any part of the
Markets except from your Premises.
………..


6.3 Use of Premises only
You must contain all Your Property within the boundaries or limits of the Premises and must not use the Common Areas to store or place Your Property without the written permission of an Authorised Officer.

6.4 Outside of Access Hours
(a) …………..
(b) If the Premises the subject of your Licence is a Stand then You may not leave Your Property at the Premises outside of Access Hours without the approval in writing of SML or an Authorised Officer. If You receive this approval, You acknowledge and agree Your Property left at the Premises is left at your risk and remains at all times your responsibility.

6.5 Location of the Premises
(a) ………..
(b) If the Premises the subject of your Licence is a Stand then the location of your Stand will be as set out in ltem 3 of Schedule 1.1.
(c) SML may vary the location of your Stand for any particular day without notice or permanently with 30 days notice in writing at its discretion.
…………..


6.6 Trading
You must operate the Premises and Sell the Authorised Goods during Trading Hours.

6.7 Attendance
You must be present and in occupation of the Premises by no later than the Attendance Time on each day You are required to operate the Premises pursuant to clause 6.6. You must remain present and in occupation after the Attendance Time up until the conclusion of Trading Hours for that day.

…………………

16.1 SML's obligations
SML will:
(a) manage and operate the Markets in a professional and
competent way;
(b) obey any law that requires SML to do anything concerning the Markets; and
(c) keep the Markets clean, tidy and in good condition


17.1 Closure of Markets
SML may decide at any time not to conduct the Markets or any part of the Markets, on any day or days, or for part of any day or days.

17.2 SML’s right to deal with the Markets
SML may:
(a) increase or reduce the area of the Markets or carparks or any part of the Markets or carparks;
(b) change the location of any part of the Common Areas;
(c) change the nature or location of any of the facilities on the
Common Areas;
(d) change the direction, area, layout or level of any walkways,
pathways, driveways or carparks;
(e) change the traffic patterns in the Markets;
(f) relocate the vehicular entrances and exits to and from the
Markets or any part of the Markets;
(g) sell, transfer, lease, mortgage or otherwise deal with any of the Markets; or
(h) deal with the Markets in any other way as permitted under the Constitution.
…………..


19.1 Right to relocate
SML may relocate the Premises or the Markets or any part of the
Markets from Flemington and or Haymarket to an alternate location (Relocation).

19.2 Relocation Notice
SML must give You written notice of the Relocation (Relocation
Notice). This Relocation Notice will:
(a) provide details of the Relocation;
(b) offer You a licence at the new location; and
(c) require You to surrender your current Licence and vacate the Premises on a specified date (which must be at least 90 days after the date of the Relocation Notice).
SML will offer you new premises that are, as a minimum, reasonably comparable to the Premises. In this case, SML will charge you rent at the same rate per square metre. In the event the new premises provide you with enhanced facilities (in the reasonable opinion of SML), SML reserves the right to set the rent at a higher level.

…………..

22.3 Termination by SML
(a) SML may give You notice in writing of its intention to terminate
this Occupancy Agreement and cancel your Licence if:
(1) You commit a Breach and fail to make good this Breach (if capable of remedy) or to pay adequate compensation (if incapable of remedy) within a reasonable period of being notified in writing of the Breach by SML;
…………….

(d) SML will terminate this Occupancy Agreement and cancel your Licence with 90 days' notice in writing if it becomes necessary for any reason to permanently close the Markets or the Market Category in which the Premises are located.
……………..

25 Variation of this Occupancy Agreement
SML may by 30 days' notice in writing:
(a) vary:
(b) add to; or
(c) suspend,
all or any part of this Occupancy Agreement.


…………..

26.6 No waiver
A failure, delay, relaxation or indulgence by a Party in exercising any power or right conferred on the Party by this Occupancy Agreement does not operate as a waiver of the power or right. A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under this Occupancy Agreement. A waiver of a breach does not operate as a waiver of any other breach.

…………….

Schedule 1
……………..
Item 7 Haymarket
Sydney’s Paddy’s Markets Days
(Clause 1) Thursday
Friday
Saturday
Sunday
…………………..

Schedule 2
……………

2.1 Trading days
You may hold a Stand at Haymarket that will enable You to operate your Stand
Thursday to Sunday, unless otherwise approved by SML.

2.2 Trading Hours
The Trading Hours when You may (and are required to) operate your Stand are:
(a) Thursday Paddy's Markets Haymarket 9.00 am to 5.00 pm
(b) Friday Paddy's Markets Haymarket 9.00 am to 5.00 pm
(c) Saturday Paddy's Markets Haymarket 9.00 am to 5.00 pm
(d) Sunday Paddy's Markets Haymarket 9.00 am to 5.00 pm

SML may vary these Trading Hours at any time by reasonable notice to You.

Use of premises as a retail shop

16 In effect, the first question of law to be decided is whether there was a “retail shop lease”. This question goes to the Tribunal's jurisdiction, in that it is, confined by section 71 of the RLA to disputes between parties or former parties to a retail shop lease or former retail shop lease. In this case, the Tribunal held that the respondent's stands were occupied by him pursuant to a retail shop lease within the RLA and that remained the position adopted by Mr D. William, S. C who appeared for the respondent at the hearing before this Appeal Panel. It was contested by Mr R. Carruthers of Counsel who appeared for the appellant.

17 Section 3 of the RLA, defines “retail shop” and “retail shop lease or lease” as follows:

retail shop means premises that:
(a) are used, or proposed to be used, wholly or predominantly for the carrying on of one or more of the businesses prescribed for the purposes of this paragraph (whether or not in a retail shopping centre), or
(b) are used, or proposed to be used, for the carrying on of any business (whether or not a business prescribed for the purposes of paragraph (a)) in a retail shopping centre.
Note 1. Section 5 limits the retail shops to which this Act applies.
Note 2. Clause 17 of Schedule 3 provides that the businesses specified in Schedule 1 are taken to be prescribed for the purposes of paragraph (a) of this definition until regulations prescribing businesses and repealing Schedule 1 are made.

retail shop lease or lease means any agreement under which a person grants or agrees to grant to another person for value a right of occupation of premises for the purpose of the use of the premises as a retail shop:

(a) whether or not the right is a right of exclusive occupation, and
(b) whether the agreement is express or implied, and
(c) whether the agreement is oral or in writing, or partly oral and partly in writing.
Note . Sections 6, 6A and 84B limit the retail shop leases to which this Act applies.

18 There is no doubt that the business conducted from his stands in Paddy's market by the respondent (stationery gifts etc) was included in the list of businesses prescribed by Schedule 1 to the RLA . The argument focused on whether or not, the respondent's rights of occupancy, related to’ premises’ it being submitted by Mr Carruthers that such expression was inapt to refer to what was only a designated area of open floorspace, in accordance with the definition of “stand” set forth above. Reliance was placed on the decision of the Court of Appeal in Manly Council, v Malouf (2004) 61 NSWLR 394. In that case, the Council granted a licence by deed to a restauranteur to use public space on the footpath adjoining his restaurant for the purposes of his restaurant business. The court (Mason P Handley JA, and Tobias JA) unanimously held that such a lease is not a lease of premises and accordingly not a retail shop lease. In the penultimate paragraph of his judgment, Handley JA said:

24 The fair meaning of this language is that the leased premises must themselves be a retail shop, but even if this were thought to be debatable the subject matter of the lease must be premises and in this Act that expression does not include vacant or bare land. In my judgment this Deed was not a retail shop lease merely because the licensed area was to be used in conjunction with a retail shop as defined.

19 Tobias JA, after an extensive review of the provisions of the RLA concluded:

88 With some hesitation, I have come to the view that the licensed areas are not " premises " within the meaning of the definition of " retail shop " in s 3 of the RL Act. As I have said, the position would have been different had the deed extended to the restaurant as well as the licensed areas. It was uncontested that a ” shop " in ordinary parlance is referrable to the sale of goods within the whole or part of a building. There are sufficient indications in the RLA and, in particular, in the provisions which I have identified above and in the nature of the retail businesses listed in Schedule 1, which provides a context which requires that the " premises " referred to in the definition of " retail shop" and " retail shop lease " be construed as confined to a shop being located within a building or similar structure.

89 In my opinion it follows that the licensed areas do not constitute " premises " and, therefore, the deed is not a " retail shop lease " within the meaning of the RL Act. Accordingly, the Tribunal does not have jurisdiction to entertain a " retail tenancy claim " as defined in s 70 of that Act insofar as such a claim is based upon the deed.

20 Of some relevance is also the decision of the Court of Appeal in Moweno v Status Promotions Pty Ltd (2003) NSWCA 376. As the Appeal Panel understands the effect of Moweno, premises, which at the time occupation was granted did not constitute a retail shop within the RLA may nevertheless become so by agreement between the parties.

21 In the opinion of the Appeal Panel the decision in Malouf may be distinguished from this case. This was not simply a licence to occupy vacant land. It was of an area within a building, an area moreover, which was intended to become and did in fact become a venue for the sale of goods by retail. The erection by the respondent in, the areas allotted to him, of display cases, counters and signage rendered the space indistinguishable from a retail shop, as that expression is commonly understood. It was plainly, the intention of the parties that something like this would occur in order to give effect to the purpose of the licence agreement. We hold that the occupancy of the respondent constituted a retail shop lease within the meaning of the RLA.

22 In the opinion of the Appeal Panel there is no force in the submission that the RLA was rendered inapplicable to the Haymarket site by the SMADA. Mr Carruthers contended that the SMADA “covers the field” so far as the terms and conditions of licences are concerned. He referred in particular, to subclause 4(3) of schedule 2 which provides that the terms and conditions of a short term licence or permit may be varied by (the appellant) by notice in writing to the licence or permit holder. It was submitted that the terms of the clause made it clear that the legislature did not intend it to stand with the RLA. On the other hand, Mr Williams pointed out that the occupancy agreement governing the relationship between the parties post dated the SMADA, and accordingly was not covered by schedule 2 which is headed “Savings, Transitional and other Provisions”.

23 Mr Williams also submitted that the plain purpose of the SMADA was in effect, to provide for the appellant to acquire the business and undertaking of the Sydney Market Authority, and to novate existing licence agreements. It neither expressly nor by implication, removed the protection of the RLA to the extent that it was applicable.

24 In the opinion of the Appeal Panel both submissions of Mr Williams should be upheld. We agree that as a matter of interpretation schedule 2 applies to licences in force at the commencement of the statute, not to agreements, entered into subsequently.

25 As to Mr Williams alternative submission the principles applicable to a subsequent statute, by implication, rendering ineffective the provisions of an earlier statute were discussed by Tobias JA in Malouf when he quoted from the judgment of Kirby P(with whom Handley JA agreed) in Royal Automobile Club of Australia v The Sydney City Council (1992) 27 NSWLR282 at 293-294:

Application of the maxim generalia specialibus non derogant :
A number of principles emerge from the decisions on the application of the maxim invoked here which it is useful to remember, without in any way purporting to exhaust what the courts have said: 1. The basic endeavour is to find what Parliament has meant from the words which it has enacted. In the older cases this was expressed in terms of the “intention” of Parliament. More recently it is expressed by reference to the discovery of the “purpose” of Parliament. Discovering Parliament's imputed purpose is the function of courts in construing legislation. Interpretation under the common law is limited to giving expression to the law which Parliament has made, and not to frustrating or defeating the achievement of that purpose. But the law must always be found in the language which Parliament has expressed: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Associated Minerals Consolidated Ltd v Wyong Shire Council (at 686-687; 554; 329); 2. Respectful of the law made by Parliament, courts will not readily assume that words of apparently general application are to be narrowly confined: see Fullagar J in Butler v Attorney-General for the State of Victoria (at 276). It is for the party seeking to confine such words to show that this is necessary to avoid an irreconcilable inconsistency or repugnancy between the statutory duties said to be in conflict: see, eg, Goodwin v Phillips (1908) 7 CLR 1 at 11.R 1 at 11. There must be such conflict that the words necessarily “import a contradiction”: see Garnett v Bradley (1878) 3 App Cas 944 at 966; Rose v Hvric (1963) 108 CLR 353 at 360; Parramatta City Council v Stauffer Chemical Co (Aust) Pty Ltd [1971] 2 NSWLR 500 at 509; 3. Ordinarily, it will be assumed that Parliament means what it says. The general principle to be applied is that stated in Dr Foster's Case (1615) G 11 Co Rep 56 at 63; 77 ER 1222 at 1232. This is what Sir Edward Coke said: “ ¼ forasmuch as Acts of Parliaments are established with such gravity, wisdom and universal consent of the whole realm, for the advancement of the commonwealth, they ought not by any constrained construction out of the general and ambiguous words of a subsequent Act, to be abrogated.” The principle was explained by Lord Sumner in Attorney-General v Exeter A Corporation [1911] 1 KB 1092 at 1100: “ ¼ The grounds upon which the Courts have construed general words in statutes so as not to interfere with prior special words or special Acts or prior rights publicly granted to bodies corporate or politic rest upon the theory, and (as I think) the fact, of the continuity and justice of English legislation. It is not to be supposed that the mind of the Legislature continuously deliberating and expressing itself in statutes will, after full special deliberation at one time, subsequently alter the result of that deliberation by mere general words not so expressed as to bring the special matter within their purview. It is not to be supposed that the mind of the Legislature so operating and expressing itself will take away the rights previously granted to subjects without compensation and without specific statements to that effect. This is the effect of the cases cited in argument though some possibly would not now be followed ¼ .”

26 In this case in the Appeal Panel's opinion, there is nothing to indicate that Parliament did otherwise than intend that the two statutes should operate together.

Section 61

27 The next question which arises is whether section 61 of the RLA has application in this case. The section provides:

(1) A lease of a retail shop is taken to include provision to the effect that a lessor is not-entitled to change the core trading hours of the retail shopping centre of which the shop forms ``part except with the approval in writing of the lessees of a majority of the retail shops in the shopping centre (whether or not those retail shops are retail shops to which this Act applies). The initial fixing of trading hours in a new shopping centre is not a change to core trading hours and is not affected by this subsection.

(2) Subsection (1) does not operate to permit a lessor to ignore the requirements of any other agreement, arrangement or understanding that prevents or restricts a change to core trading hours by the lessor in a retail shopping centre.

(3) This section does not prevent a lease providing for the action that may be taken by a lessor in the event of a lessee not trading in accordance with core trading hours, including provisions:
(a) enabling the lessor, as a condition of granting consent to a lessee trading outside core trading hours, to require the lessee to pay, or pay a contribution towards, the costs of opening the retail shopping centre during those extended trading hours; or
(b) requiring a lessee who trades outside core trading hours to make specified payments or additional payments in respect of advertising and promotional costs for the shopping centre.

(4) The “core trading hours” of a retail shopping centre are the times when retail shops in the shopping centre are required to be open for business, whether the requirement is imposed by or under a lease or by or under some other agreement, arrangement or understanding between lessors and the lessees.

28 It was successfully argued before the Tribunal that the section applied to the notice given by the appellant to the respondent dated 9 July 2009. This predicated findings that the occupancy by the respondent of part of Paddy’s Market constituted a “retail shop lease” that the shop was within a “retail shopping centre” that “core trading hours” were applicable to the retail shopping centre, that the appellant was seeking to change those hours and that this was without the approval in writing of the lessees of a majority of the retail shops in the shopping centre.

29 Moreover in the opinion of the Appeal Panel the applicability of s 61 also predicates the existence in the occupancy agreement of a right to change the hours of opening which in this case would include the days of opening as well. This seems to us to follow from the manner in which subsections (1) and (2) are expressed. It is by no means clear that the occupancy agreement in this case contains such a right. Rather Schedule 2 seems to indicate that “days of opening”, (in contradistinction to “hours of opening”) is a core provision not amenable to change at the whim of the licensor although it perhaps could achieve the same result by exercising the general right of amendment conferred by clause 25.

30 For this reason alone it appears to the Appeal Panel that the notice of 9 July 2009 had no effect upon the relationship between the parties. But in any event the Appeal Panel is not persuaded that the “retail shop” occupied by the respondent was within a “retail shopping centre” as defined in the RLA. This was a question in effect left undecided by the Tribunal at first instance in that it appears to have believed that it was not an issue between the parties.

31 Paragraph 28 of the reasons for the Tribunal's decision given on 30 September 2009 (a decision which was confined to argument concerning the Tribunal’s jurisdiction), commences, “ I think it was conceded by both parties that the Haymarket facility is a retail shopping centre, as defined by the Act.” It did not mention the issue again in its decision of 11 November 2009 now under appeal. But in fact, as now appears plain the point was not conceded but was argued by the appellant in a rather unusual way. Counsel for the appellant, no doubt because of time constraints, instead of making submissions himself handed up to the Tribunal, the written opinion of Mr G. Downes, QC, in another matter, which raised a similar issue .

32 Retail shopping centre by section 3 of the RLA is defined to mean:

" retail shopping centre " means a cluster of premises that has all of the following attributes:
(a) at least 5 of the premises are used wholly or predominantly for the carrying on of one or more listed businesses,
(b) the premises are all owned by the same person, or have (or would if leased have) the same lessor or the same head lessor, or comprise lots within a single strata plan under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986,
(c) the premises are located in the one building or in 2 or more buildings that are either adjoining or separated only by common areas or other areas owned by the owner of the retail shops,
(d) the cluster of premises is promoted as, or generally regarded as constituting, a shopping centre, shopping mall, shopping court or shopping arcade.

33 It is clear in the Appeal Panel's view that paragraph (a) of the definition is satisfied in this case as are paragraphs( b) and (c). However, the Appeal Panel does not accept that Paddy's Market meets the criterion, mandated by paragraph(d). On behalf of the appellant it was submitted that as a matter of ordinary usage the expression “ shopping centre, shopping mall, or shopping arcade” is not apt to describe Paddy's Market. Rather, in ordinary usage, it is appropriately categorised as a “ market” which is precisely what it is called in all the documentary material before us.

34 In submitting to the contrary, Mr Williams focused his submissions on the proposition accepted by the Tribunal, that each stand constituted a retail shop, and therefore became subject to a retail shop lease. Such a conclusion which may well be correct does not however in the opinion of the Appeal Panel, necessarily mean that the retail shops are within a retail shopping centre as defined.

35 The use in paragraph (d) of the words” generally regarded as” seems to indicate that in the absence of “ promotion” the ordinary usage of the phrase “retail shopping centre” is to prevail. There is no evidence that the appellant promoted the market as a “retail shopping centre” and indeed all the evidence is to the contrary. Any recognition by the appellant that the standholders may have the protection of the RLA has no relevance to this question.

36 The Macquarie Dictionary third edition defines “shopping centre” relevantly as a “shopping complex” which in turn is defined to mean “a group of many shops and associated facilities within a single architectural plan. Also shopping mall - shopping centre”. Conversely “market” is relevantly defined as:

1.A meeting of people for selling and buying 2.the assemblage of people at such a meeting, 3.An open space or a covered building where such meetings are held 4.A store for the sale of food”.

See also, Stroud's Judicial Dictionary, sixth edition at page 1554 in respect of the word market, where it states inter alia:

“a public time and appointed place of buying and selling”

37 To some extent, it is a matter of impression but in the opinion of the Appeal Panel a collection of stands open for retail trading on limited days established under the same roof, but otherwise in an open space, albeit fitted with some of the accoutrements of retail shops such as counters and display cabinets does not in general usage, constitute a shopping mall, shopping arcade or shopping centre. This opinion is reinforced by examination of the terms of the occupancy agreement itself, which in many respects seems to contain provisions quite inconsistent with the terms to be expected in relation to the occupation of shops in a retail shopping centre.

38 Accordingly, for the various reasons expressed above the Appeal Panel is of the opinion that section 61 of the RLA has no application to this case. In holding otherwise, the Appeal Panel is respectfully of the opinion that the Tribunal erred in law.

Monetary limit of Tribunal’s jurisdiction

39 It was also argued before the Tribunal and before the Appeal Panel that s73 of the RLA imposing monetary limits barred the jurisdiction of the Tribunal. This submission was based upon the relief sought by the applicant and in light of the orders actually made by the Tribunal. Those orders with great respect to the learned Judicial Member seemed to go beyond the dispute between the parties and to that extent in our opinion were ultra vires as unauthorised by s. 72 of the RLA. Once it is accepted that orders made by the Tribunal must be limited to the dispute between the parties, as we think they must, there is no basis in the evidence for concluding that any order made could or would exceed $400000. The Tribunal’s decision on this point was correct and indeed the principle was accepted in the Tribunal’s reasons although as indicated the orders actually made went somewhat further particularly orders (f), (g) and (h). Those orders in the opinion of the Appeal Panel could not be allowed to stand whatever the result of this appeal.

Conclusions

40 However, in light of the Appeal Panel's opinion that section 61 of the RLA has no application to this case the appeal must be allowed. The notice dated 9 July 2009 given by the appellant was not affected by s61 of the act but nor was it of any significance in the relationship between the appellant and the respondent. As the occupancy agreement stands in the opinion of the Appeal Panel the appellant is not entitled to require the respondent constructively or otherwise to open his stand on Wednesdays. Nor would it seem that the appellant in accordance with ordinary legal principles is entitled either to require the respondent to remove his stock each Sunday evening or to permit someone else to use his furniture etc, on Wednesdays. In relation to stock it appears that for a consideration paid by the respondent the terms of the occupancy agreement were varied and in relation to fixtures and fittings installed with the appellants approval they remain the property of the respondent and may not lawfully without his consent be used by anyone else.

41 As for the most part the relief sought by the respondent in the Tribunal assumed the relevance of s61 of the RLA it follows from what the Appeal Panel has said that in its opinion such assumption was unwarranted. In substance the appeal should be allowed although it seems that the respondent is entitled to maintain the declaration that the occupation agreement between the parties was a retail shop lease within the meaning of the RLA and that the appellants notice of 9 July 2009 was ineffective in so far as it sought to stipulate that the respondent was required to trade on Wednesdays from stands 234, 235 and 236 at Paddy’s Market.

Costs

42 As each party has had a measure of success in the appeal we are of the opinion that it would be just to make no order as to costs.

Orders

43 The Appeal Panel makes the following orders and declaration:

1. Appeal allowed

2. Declarations (b) (c) (d) (e) (f) (g) and (h) made by the Tribunal on 29 October 2009 set aside.

3. Declare that the notice dated 9 July 2009 given by the appellant to the respondent was of no effect in so far as it purported to require actually or constructively the respondent to open stands 234, 235 and 236 at Paddy’s Market for trading on Wednesdays.

4. No order as to costs.