Townsend v Chief Executive, State Rail Authority

[1999] NSWADT 56

CITATION:	Townsend v Chief Executive, State Rail Authority [1999] NSWADT 56
DIVISION:	Retail Leases
APPLICANT:	Jeffrey and Rhonda Townsend
RESPONDENT:	Chief Executive, State Rail Authority
FILE NUMBER:	995009
HEARING DATES:	06/22/1999
SUBMISSIONS CLOSED:	06/22/1999
DATE OF DECISION:	22 June 1999
BEFORE:	K P O'Connor DCJ - President
PRIMARY LEGISLATION:	Retail Leases Act 1994
APPLICATION:	Retail tenancy claim -
MATTER FOR DECISION:	Application for interim order
REPRESENTATION:	Applicant: J Chippindall of counsel instructed by Peter Adams & Co Solicitors Respondent: A Gelbart of counsel
ORDERS:	1. Application dismissed.

Delivered Ex Tempore

1 The applicants, Jeffrey and Rhonda Townsend, operate a kiosk at the Penrith Railway Station. Those premises have been leased to them by the respondent, the State Rail Authority. On 21 June 1999 the applicants commenced proceedings in the Tribunal against the State Rail Authority under the Retail Leases Act 1994 (the Act). At the same time they applied for interim relief in relation to action which the respondent proposes to take within the next few days, namely, to terminate the lease. The application for interim relief is the matter before the Tribunal today.

2 There is some doubt as to whether the principal application is properly before the Tribunal. Section 68 of the Act appears to require that the dispute must first be the subject of consideration by the Registrar of the Retail Leases Mediation Unit and that Registrar must provide a certificate in writing before a matter can be lodged in this Tribunal: s.68(1). But there is an exception and that exception applies where “the court is otherwise satisfied that mediation under [the relevant part] of the Act is unlikely to resolve the dispute”: s.68(1). There has been one attempt at mediation between the solicitors, which has been unsuccessful. But for the purposes of today’s decision I will not pursue the question of whether the procedure referred to in s.68 has been fulfilled. [See further para. 16 below].

3 The applicants were represented by Mr Chippindall of counsel and the respondent by Mr Gelbart of counsel. There was no sworn evidence, submissions being made from the bar table. There were a number of points of agreement as to the facts. The following background is based on those submissions and the assertions as to fact where there was no contest.

4 On 24 December 1998, purporting to act under the provisions of the lease, the respondent gave the applicants a six months notice, described as a notice of demolition, which upon expiry of the notice period would give rise to termination of the lease. The notice period expires in two days’ time. The applicants must then vacate their premises unless they are successful in obtaining a stay of operation of the notice. The respondent requires a clear site, as I understand it, in order to commence demolition works as part of upgrade work connected with preparation for the Olympic Games.

5 In their principal application, the applicants claim that the respondent failed to disclose the proposed redevelopment of the Penrith station at the time of entry into the current five year lease. The current lease has a commencing date of 1 April 1996 with a terminating date of 31 March 2001. It is accompanied by a disclosure statement as required under the Act which deals with various matters in relation to which a lessor is obliged to make disclosure to a lessee. The applicants contend that the disclosure statement requirements of the Act have been breached. Counsel for the applicants also contended that the termination procedure was not valid; and accordingly the lease had not been lawfully revoked. In the application, the applicants have claimed $300,000 for wrongful termination, that amount being the limit of the jurisdiction.

6 The application for interim relief took the form of an application under s.60 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). At hearing it was also made in the alternative under s.72(4) of the Act.

7 As to s.60 of the Administrative Decisions Tribunal Act, I agree with the submissions of counsel for the respondent, Mr Gelbart, that s.60 is not applicable. Section 60 confers a general stay discretion on the Tribunal in respect of the operation of reviewable decisions. “Reviewable decision” is defined in s.8 as a “decision of an administrator that the Tribunal has jurisdiction under an enactment to review”. The scheme found in the Tribunal Act and various companion pieces of legislation is for the conferral of jurisdiction on the Tribunal to be made by the companion pieces of legislation.

8 The matters in issue in these proceedings, as I see it, relate to decisions in relation to a leasehold relationship, those decisions having been made purportedly pursuant to the lease. The power to make these decisions, as I see it, derives from the lease. The respondent’s general power to enter into commercial arrangements I expect derives from statute, but that does not make decisions taken in a commercial context of lease arrangements subject to the reviewable decisions jurisdiction of the Tribunal. It is plain, I consider, from the scheme of the legislation that the decisions to which the review jurisdiction attaches are ones directly permitted to be made by statute, and in relation to which there has been a specific statutory conferral of jurisdiction on the Tribunal.

9 I turn now to s.72(4) of the Act (inserted by Retail Leases Amendment Act 1998 Sched. 1[50] and commenced on 1 March 1999). There is jurisdiction, as I see it, under s.72(4) to make interim orders in the nature of stay orders.

10 Section 72(4) provides that “[t]he Tribunal may make an interim order under this section pending final determination of a claim if it appears to the Tribunal desirable to do so”.

11 The final orders that are permitted by the Act need to be considered in determining what the scope of an interim order might be. One of the final orders that is contemplated by s.72 is that contained in 72(1)(c)(iv) which is an order that a party to the proceedings “refrain from doing” any specified act, matter or thing. So on the face of it, there does appear to be power vested in the Tribunal to make an interim order which might prevent the respondent to an application from engaging in a specified act or other form of conduct.

12 I agree broadly with the submissions of Mr Chippindall for the applicants that the power should not be interpreted strictly by reference to the well-known criteria governing the grant of interim relief by way of interlocutory injunctions: see A v Hayden (No. 1) (1984) 59 ALJR 1 (Dawson J), Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425 (Gibbs CJ); see generally Note, (1977) 51 ALJ 147, American Cyanamid Co v Ethicon Ltd [1975] AC 396 (House of Lords); Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622. These cases were alluded to in submissions.

13 This is, I recognise, a statutory Tribunal with a range of statutory remedies at its disposal, designed to ensure fairness according to law in dealings between lessor and lessees. The policy origins of the recent amendments to the Act which include the new s.72 are to be found in the Fair Trading Report of the Federal Parliament released in 1997 (`Finding a balance, Towards fair trading in Australia’, Report by the House of Representatives Standing Committee on Industry, Science and Technology, Parliament of the Commonwealth of Australia, May 1997, ch. 2) and the subsequent deliberations leading to the development of the new provisions (see the Second Reading speech, 1 December 1998, Legislative Council Hansard p. 10886).

14 There are a wide range of potential circumstances that may at times require intervention by way of interim orders, and I would be reluctant on the first occasion that this new provision has been examined in this Tribunal, to encourage a view that the provisions should be strictly interpreted by reference to what might be seen as analogous areas of the law.

15 My understanding is that there was no similar power to make interim orders vested in the old Commercial Tribunal, which had jurisdiction in this area before 1 March 1999, when these new provisions came into force and the jurisdiction was transferred to this Tribunal.

16 I note that in s.68 of the Act, which is an original provision that remains unamended, there is a sub-section, s.68(3), that says that “[t]his section does not apply to proceedings before a court for an order in the nature of an injunction”. This appears to be some indication that in the past at least, where a party was concerned to bypass the statutory mediation phase and get an urgent order of the kind we are looking at today, they would probably have had to approach, as I read this provision, the Supreme Court for an injunction. It may be that now, with the new provisions in this Act, we should read the powers in s.72 as ones that can be activated without necessarily having to go through the procedure of s.68.

17 The factors relevant to the exercise of the discretion in the present case, which is the discretion to make such interim order as it appears to the Tribunal desirable to make, include, in my view, the following matters that were canvassed in submissions.

18 The applicants have had six months notice of the respondent’s intentions. During that period they have had the opportunity to approach an appropriate forum for interim relief. Now that there are only two days to run, the respondent would clearly be disadvantaged in its ability to proceed with its plans in respect to the station to a much greater degree today than would have been the case had an application of this kind been brought forward to the appropriate forum at an earlier time.

19 Further, while this Tribunal is not a court of pleadings, there is, I consider, insufficient particularity in the materials so far filed to enable the Tribunal to form any provisional view of the strength or otherwise of the applicant’s claims.

20 I am also inclined to agree with Mr Gelbart that the main wrong alleged, the omissions in relation to disclosure, are ones which under the scheme of the legislation are intended to be dealt with by way of an order for monetary compensation.

21 It will be seen from the factors I have enumerated that they are not unlike those that are considered in the context of interlocutory injunction applications. But it does seem to me that I need to have regard to general considerations as to the balance of convenience and the strength of the applicants’ case as currently presented, even though I do not regard myself as bound in any strict way by the list of considerations that have been developed in other contexts.

22 On the basis of the material currently before me, the factors put forward by the applicants are not sufficient, I consider, to permit an interim order to be made requiring the respondent to desist from giving effect to what is in effect a notice to vacate. If the applicants are successful in relation to their principal application they will, I expect, seek monetary compensation for the financial consequences, and that claim will, I expect, include a claim for losses associated with the loss of the benefit of the remaining years of the lease. The considerations advanced before me today are not sufficient, as I have said, to justify the Tribunal making an order which has the effect of permitting them to remain in possession of the premises pending hearing of that application.

23 The application is dismissed.