Woolworths (New Zealand) Limited v Attorney-General of New Zealand HC Auckland M266/01

Case

[2001] NZHC 266

6 April 2001

No judgment structure available for this case.

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY M266/01

UNDER THE Declaratory Judgments Act 1908

BETWEEN WOOLWORTHS (NEW ZEALAND) LIMITED
Plaintiff

AND THE ATTORNEY-GENERAL OF NEW ZEALAND (THE DEPARTMENT OF LABOUR)
Intervenor

Date of Hearing: 2 April 2001

Counsel: Mr Cole / Ms Ifwersen for the Plaintiff
Mr Hancock for the Defendant

Date of Judgment: 6 April 2001

RESERVED JUDGMENT OF GLAZEBROOK J

Introduction

[1] The plaintiff, Woolworths (New Zealand) Limited (“Woolworths”), seeks an order under the Declaratory Judgments Act 1908 (the “DJ Act”) that it is entitled, in accordance with s 4(1)(a) of the Shop Trading Hours Act Repeal Act 1990 (the “STHAR Act”), to open its supermarket at Waiheke Island on Good Friday and Easter Sunday for the sale of goods of the type referred to in the schedule to this judgment so long as it does not sell or offer for sale any other goods.

[2] The Department of Labour (the “Department”) did not oppose the application. It did, however, consider that its presence could aid the Court in particular in respect of the practical aspects related to the proceeding. It submitted, therefore, that it was not appropriate that it be named as a defendant. Because the relief sought might impinge on the prosecutorial discretion of the Department the role of amicus curiae was also not an appropriate one. However, it was submitted that it should be given leave to appear as an intervenor (and be removed as a defendant). This was not opposed by the plaintiff and was thus granted.

The Facts

[3] The facts as set out by the plaintiff are as follows:

[a] Woolworths operates a supermarket at 102 Ostend Road, Waiheke Island. It wishes to open its supermarket at Waiheke Island for business on Good Friday and Easter Sunday. On these days it will only offer for sale goods of the type referred to in the schedule to this judgment and it notes that in any event approximately 96% of the normal weekly sales are of such items - see the affidavit of Louise Anne O’Shannessey (“O’Shannessey”), a market research manager of the plaintiff, sworn 9 March 2001 (para 11).

[b] It can ensure, by electronic means, that no item of the type not referred to in the schedule will be sold on those days - see O’Shannessey (para 18).

[c] Woolworths is the only supermarket on Waiheke Island. Last year it served approximately 9,600 customers each week - see the affidavit of Desmond Colin Flynn (“Flynn”), the director of Strategic Business Development and Marketing of the plaintiff, sworn 9 March 2001, (para 5). The permanent population on Waiheke Island is approximately 7,000. During peak holiday periods such as Easter the population increases to around 30,000 - see O’Shannessey, (para 4), and Flynn, (paras 3 and 4).

[d] Easter is typically the busiest weekend of the year on Waiheke Island. This may be because this peak holiday coincides with the Waiheke International Jazz Festival which commences on Maundy Thursday and finishes on Easter Monday - see the affidavit of Nicholas Stanley Hewlett (“Hewlett”), a Deputy Team Leader of the plaintiff, and previously the store Team Leader at the Waiheke Island supermarket, sworn 8 March 2001, (paras 3 and 4).

[e] There are a number of small shops on Waiheke Island which sell fruit, vegetables and groceries but the plaintiff maintains that it is unlikely that other small shops selling groceries, if open, could service the large influx of visitors and the resulting increased demand for groceries and other necessities during this period - see Flynn (para 10) and O’Shannessey (para 5). I note that there was no independent evidence on this point and I have not heard from the owners of any of the other shops.

[f] In previous years, Woolworths has found it difficult to meet the needs of the increased number of customers on Maundy Thursday and the Saturday following Good Friday - see Flynn (para 12). On an ordinary Saturday the average number of customers served is approximately 1,500. On the Saturday following Good Friday last year the number of customers was 2,600 - see Flynn (para 13).

[g] To ensure a continuity of supply the plaintiff has a permanent daily booking on the car ferry. During the week the storage capacity of the supermarket is utilised to the maximum to enable the shelves to be replenished - see the affidavit of Robert Yagmich (“Yagmich”), Director of distribution of the plaintiff sworn 9 March 2001 (paras 4 and 6). Fresh food needs to be delivered daily - see Yagmich (para 7).

[h] Woolworths has previously been unable to replenish its goods on Saturday and Easter Monday to meet the increased demand - see O’Shannessey (para 16). Mr Flynn deposes that last year the bakery and the rotisserie departments were unable to cope with the demand for their goods (para 14). In addition the carrying capacity of the car ferry during the period is insufficient to allow the plaintiff to cope with the demand of its customers (particularly for fresh products) on those days - see Yagmich (paras 8 and 9).

[i] The number of customers served in the week leading up to and including Anniversary Day were 12,600 - see O’Shannessey (para 9). Last year Woolworths served 9,091 customers during the week of Easter despite it being closed on Good Friday and Easter Sunday, and despite it being a rainy weekend. In previous years when the store was not open on these days a steady stream of people arrived at the front door expecting the shop to be open - see O’Shannessey (paras 8 and 19), Flynn (para 12), and Hewlett (paras 5, 7, 8 and 9).

[4] The plaintiff submitted that it is clear from the evidence that it is likely that there will be a significant increase in the number of customers served at Easter by Woolworths (see O’Shannessey paras 7 - 10) and, if the supermarket does not open on Good Friday and Easter Sunday, there will be insufficient supplies of groceries and other necessities available to the plaintiff on the island to meet the demands of its customers during this busy period (see Hewlett paras 9 and 13, Yagmich para 10, O’Shannessey para 16 and Flynn paras 12 and 14).

[5] There was no challenge to this factual background by the Department. On the other hand there is no suggestion that the Department has done any independent verification of the facts as set out by the plaintiff.

Legislation

[6] Under s 3 of STHAR Act all shops must remain closed on Anzac Day before 1:00pm, and all day on Good Friday, Easter Sunday and Christmas Day. This is subject to s 4(1)(a) which provides that - a shop may open if it is a shop where:

“(i) The goods for sale include nothing that is not food, drink, a household item, a personal item, an automotive fuel, an automotive lubricant, an automotive part, or an automotive accessory, of a kind that people may reasonably need to be able to buy at any time; and

(ii) The quantity of goods for sale is no greater than that sufficient to meet the demands of the people who live or are staying in the area where the shop is, and people (other than people travelling in order to buy goods at the shop) travelling through the area.”

[7] The STHAR Act repealed the Shop Trading Hours Act 1977, and removed extensive restrictions on trading on Sundays, Public Holidays and between 9:00pm and 7:00am generally. The Department helpfully provided a history of the legislation as set out below as well as information on the Department’s enforcement role.

[8] As originally drafted, the STHAR Act removed all restrictions on shop trading. The STHAR Act was designed to provide retailers, the general public and tourists with significantly greater business and consumer choices and opportunities, as well as to reflect changed social patterns. Complete deregulation was initially proposed as providing the most complete choice and price benefits. While it was acknowledged that workers in the retail sector would be affected by the changes, particularly Sunday opening, deregulation was also promoted as allowing greater competition, a more efficient retail sector, and increased industry sales and employment levels.

[9] The current 3 1/2 days of trading restrictions on Easter Sunday, Good Friday, Christmas Day and the morning of Anzac Day were included in the legislation after considerable public and Parliamentary debate, and passed by Members on a conscience vote. The present restrictions are therefore very much a compromise solution, respecting the weight of views of religious and other groups of the time which regarded those days as having special national or social significance. The Department submitted that this means that there are a number of competing public interests involved in any interpretation of the legislation including the interests of the workers, the interests of the religious and other groups involved as well as the consumer interests.

[10] The previous restrictive 1977 legislation allowed two main types of exemption - approved goods and specified points of sale. An Approved Goods List (set by regulation) prescribed goods which could be sold at any time, and included a variety of goods such as gardening supplies, aquarium products, drinks, food, fuels, magazines, medicines and photographic goods. The Minister of Labour was required to consult with the Shop Trading Hours Commission established under the Act on the content of the list, and the Commission could consult with the public and interested parties about any proposed changes.

[11] The second type of exemption was issued to specific shops on application. Exemptions were granted by the Commission to dairies, mixed businesses, or other shops or group of shops (area exemptions). The Secretary of Labour could also issue exemptions to a pharmacy, a bookstall at a public passenger terminal, or an exhibition or show. The system of granting exemptions did not survive into the new regime.

[12] A blanket restriction (even for only 3 1/2 days) would clearly have markedly exceeded the then existing restrictions. Thus under the STHAR Act the exemptions set out above in s 4(1)(a) were introduced. In addition shops whose principal business is selling souvenirs, duty free goods, prepared or cooked food ready to eat, bookstalls at public transport facilities, pharmacies and shops within facilities where there are shows or exhibitions are also exempted - see s 4(1)(b)-(e). There are also exemptions for shops in centres covered by area exemptions granted by the then Shop Trading Hours Commission [sic] have continued in force. These cover a number of towns and suburbs, the most frequently cited being Central Taupo and Queenstown - see s 4(2).

[13] The STHAR Act is enforced by the Department’s Labour Inspectorate. The Department operates a policy based on voluntary compliance through advance publicity and education, underpinned by specific action taken on receipt of complaints over breaches of the STHAR Act. While the Department administers the Act, the Labour Inspectorate has no specified powers to enforce it, such as powers of entry. Restrictions on shop trading hours can also be enforced by any person in the District Court, although in practice this rarely occurs.

[14] Complaints may be received from business competitors, unions or the general public. Where potential breaches of the legislation are identified, traders are advised by the Department of the statutory restrictions, and that further action may give rise to prosecution. The policy of the Department is to act on all complaints received, and act proactively when it is clear shops intend to open on restricted days (eg, when they advertise). The Department first issues warnings and then, if shops open, may prosecute.

[15] The Department does not, as a matter of policy, issue legal advice or interpretations to those retailers making enquiries of it as to whether their intended activities would be consistent with the requirements of the STHAR Act. The Inspectorate will, however, state the requirements of the Act and provide limited material on its provisions as occurred in this case. Besides such factors as possible changes in situation between the issuing of any such advice and the actual circumstances applying on the day (or days) concerned, to issue permissive interpretations would, in the opinion of the Department, effectively amount to de facto licensing under the STHAR Act.

Plaintiff’s Submissions

[16] It was submitted on behalf of the plaintiff that the Court has jurisdiction to make a declaration of the type sought by Woolworths, even though it relates to matters that may be the subject of criminal prosecution in future. The plaintiff pointed to The Declaratory Judgement (2nd ed) by Zamir & Woolf where the authors state at 188 para 4.192:

“. . . Thus, where a person acts or intends to act in a certain way and is faced with a possible criminal prosecution he may bring an action before the criminal proceedings are commenced for a declaration to the effect that the act is not illegal. The High Court will not necessarily be inhibited from making a declaration by the mere fact that the matter could be the subject of a criminal adjudication . . .”

[17] The authors of that text go on to observe that the courts will be more willing to grant a declaration to a person who has not yet committed an offence than to a person who is already liable to be criminally prosecuted.

[18] The plaintiffs also pointed to the decision of Thomas J in Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235 where he said at 243:

“To my mind, accepting this jurisdiction but stipulating that it will be used only rarely and with the greatest care is the appropriate stance for the Court to adopt. Circumstances may arise where it is clear that the criminal processes are being used vexatiously and the criminal proceeding amounts to an abuse of process. The Court must be prepared then to say so and to step in and bring the vexatious proceeding to an end. At other times, as illustrated by the cases referred to, a Court can properly and usefully resolve a legal issue in advance of criminal proceeding.”

[19] The question therefore, in the plaintiff’s submission, is whether the court should exercise its discretion to grant the declaration in this case. The plaintiff submits it should. It submitted that, although the Court may hesitate before exercising its discretion, there are good reasons why it should exercise it in Woolworths favour as follows:

[a] This is a proper case in which the DJ Act provides a proper vehicle for Woolworths to seek the opinion of the Court on a proposed course of action - see Auckland City Council v Taubmans (New Zealand) [1993] NZLR 361 at 365;

[b] This is a case where the Court should be sympathetic towards the granting of declaratory relief because the plaintiff wants to avoid violating the law and in order to ascertain and observe the law - see The Declaratory Judgment (2nd ed) Zamir & Woolf at 181, para 4.178;

[c] Exceptional circumstances are not essential to induce a Court to make a declaration where a person is risking proceedings for a penalty or a criminal prosecution - see The Declaratory Judgment (2nd ed) Zamir & Woolf at 182, para 4.181;

[d] No criminal proceedings are pending or likely, what Woolworths desires to do is lawful, and the granting of a declaration is in the public interest.

Intervenor’s Arguments

[20] The Department accepts that the Court has jurisdiction to make a declaration. It was submitted, however, that, as noted in the Auckland Area Health Board case at 243, it is a jurisdiction which should be sparingly exercised.

[21] It was recognised that in this case Woolworths is motivated by a desire to avoid being prosecuted under the criminal law. In that regard the Department considered that its wish to do the right thing was to be commended. On the other hand the Department questioned the utility or appropriateness of the current proceedings, especially as Woolworths would be subject to a maximum fine of $1,000 should it be found guilty - see s 5, STHAR Act. The Department contrasted this with the situation in the Auckland Area Health Board case where the declaration sought related to culpable homicide. In my view, however, the courts should arguably be more (rather than less) reluctant to make a declaration the more serious the charge.

[22] The Department also argued that possibly the most appropriate forum to test the relevant sections of the STHAR Act would be through prosecutions. This of course will be of scant comfort to Woolworths as the current action is brought through its desire not to flout the law and this responsible attitude should arguably be encouraged.

[23] The Department also submitted that it does not have the ability under the STHAR Act to grant exemptions. Arguably, the number of possible factors influencing whether a trader will be prosecuted are so many that using a High Court procedure to gain clarification on one aspect may be seen as excessive in terms of using High Court resources to determine a single issue that would at worst result in a $1,000 fine and of limited utility. This argument is discussed more fully below.

[24] The Department also questioned the haste with which the proceedings were issued. Woolworths was criticised for electing to go to the High Court to get a declaration instead of returning to the Department for more advice. On the other hand the Department, for quite understandable reasons, limits its advice essentially to a repetition of the provisions of the STHAR Act, although it indicated that in future it may also direct enquirers to the relevant caselaw.

[25] Given its attitude, however, the Department would have been unlikely to give further advice that would have been of assistance to Woolworths. In addition Easter is fast approaching. As such I do not consider criticism of Woolworth’s actions in approaching the Court is justified.

Discussion of the Legislation

[26] Discussion as to whether a declaration should be made must begin with the question of whether in fact what Woolworths proposes to do is lawful.

[27] The first point is that the exemption in s 4(1)(a) must be interpreted on the basis that it is an exemption from the blanket ban on trading set out in s 3. It cannot therefore be interpreted so widely as to render the trading ban nugatory. The legislative background must also be borne in mind with the possible tension between the interests of the consumer and the interests of workers (especially on days of religious and national significance). Having said that the wording of the exemption itself will be of paramount importance.

[28] Moving on to the specific exemption, as s 4(1)(a) of the STHAR Act states that the trading restrictions on Good Friday and Easter Sunday do not apply to a shop if it is a shop where:

“[a] the goods for sale include nothing that is not food, drink, household items, personal items, an automotive fuel or automotive lubricant, an utomotive [sic] part or an automotive accessory;

[b] of a kind that people may reasonably need to be able to buy at any time; and

[c] the quantity of goods for sale is no greater than that sufficient to meet the demands of the people who live or are staying in the area where the shop is, and people, other than people travelling in order to buy goods at the shop, travelling through the area.”

[29] Taking each of the matters in turn, in respect of the matters set out in paragraph 28[a] above the words appear clear with, in most cases, a clearly defined meaning. There seems no reason to read any of these terms down. Taking the relevant words for this case, the meaning of the words food and drink are obvious and must include anything that is or can be eaten or drunk. There could be some debate over what is a household item or a personal item.

[30] In Department of Labour v Cavanagh [1996] DCR 657, Judge Callander at 662 held that the term “household item” included anything properly used for domestic purposes in or about a home, being an article of domestic use or ornament. He considered that the expression would also include items in the immediate vicinity of the house, provided they are used for domestic purposes by the householders. He considered “personal items” meant anything intended to provide for a particular individual’s needs rather than that of a group being an article of individual use or ornament. These suggested definitions seem a sensible starting point.

[31] Looking at the categories in the schedule provided by the plaintiff the majority of the categories quite clearly come within the terms food and drink with the remainder fairly clearly falling within the definition of household or personal items. On the other hand the individual items that are encompassed within the categories set out in the schedule have not been given so the possibility remains that some of the items classified by the plaintiff as coming within those categories may nevertheless fall outside the generic terms in the exemption. This does seem somewhat unlikely given the nature of categories in the schedule but it cannot be ruled out in that only broad categories have been set down.

[32] The evidence from Woolworths is that 96% of the goods sold in an ordinary week come within the categories in the schedule as set out. The intention is to make it clear on Good Friday and Easter Sunday that the items that do not come within the categories in the schedule are not available for sale by ensuring that the relevant shelves are roped off with appropriate signage. In addition, the checkout tills will be programmed so that no item that does not come within those categories is able to be sold.

[33] A combination of the roping off, signage, and the electronic exclusion means, in my view, that Woolworths would be a shop where only goods of the kind specified in the exemption were for sale. The term “for sale” must take its ordinary meaning as being available to be bought by customers. If the non-complying items are roped off and are not able to be bought because the checkouts would reject those items then these items would not be for sale. Woolworths would also have to ensure such goods were not in fact sold. Even if a sale took place by mistake it could be inferred that the goods for sale included something other than the acceptable categories.

[34] The answer in relation to para 28[a] thus appears to be a qualified yes. The categories set out in the schedule appear to come within the terms set out in s 4(1)(a)(i) - ie food, drink, household and personal items. Provided the individual items within the categories also come within those terms and provided goods falling outside the relevant categories are not able to be sold (through roping off, signage and electronic means) and are not sold, then Woolworths would appear to fulfil the requirements set out in para 28[a] above.

[35] The next question is whether the goods for sale coming within those broad categories are of a kind that people may reasonably need to be able to buy at any time - see para 28[b] above. In the case already referred to (Department of Labour v Cavanagh) Judge Callander considered at 662 that the term “need” should be given its ordinary and more extensive meaning of “want” or “requirement” as against a meaning of “basic necessity” or “essential”. I would agree with this analysis. However, at 663 Judge Callander went on to say that any need must be reasonable. This means, said Judge Callander, that the Court must examine the needs subjectively to determine whether they are “moderate, sensible or rational wants or requirements or whether, on the hand, on an objective analysis, they may be considered excessive, exhorbitant [sic] , inordinate, unnecessary or extravagant”.

[36] In addition Judge Callander drew attention to the requirement that they must be items that people may need to be able to buy at any time. He thus suggested that an appropriate question may be whether the purchase of the item may reasonably be put off until another day not given special protection by Parliament. Again this seems to me to be the correct analysis.

[37] For food and drink, household cleaning items, items for personal ablutions and essential items of household maintenance there would seem little argument that there could be a reasonable need to purchase these items at any time. Indeed, in respect of many of the items, assuming that the householder did not have supplies of those items to hand, supplies would even come within the more imperative definition of the term “need”. Given, however, the wider definition of need accepted I see no reason to restrict the range of goods available in these categories to exclude what some may regard as luxury goods.

[38] There may, however, be some questions over items which would be or could be seen as occasional purchases (for example the purchase of patio furniture) rather than more everyday items on the basis that it would be difficult to see why the purchase of occasional items could not reasonably be put off until another day not given special protection by Parliament. However, even this is subject to the caveat that this only applies if it would not create hardship if a person was deprived of the use of those items for a day.

[39] Most of the categories set out by Woolworths in the schedule would appear to come within the category of items where there would be a reasonable need to purchase at any time (but I note again there is no evidence as to the individual items coming within those categories). In addition, given Waiheke is a holiday destination where people may have brought limited supplies with them, where they may have limited storage and limited transport facilities, the ability to shop every day for items in those categories could be seen as a necessity.

[40] The final requirement is that the quantity of goods for sale can be no greater than that sufficient to meet the demands of the people who live or are staying in the area where the shop is and people travelling through the area (apart from those travelling in order to buy goods at the shop).

[41] In the case of Department of Labour v Cavanagh at 664 Judge Callander stated that this requirement meant that there must be a limitation on the quantity of the goods that may be displayed for sale. Supply, in the sense of goods offered for sale, must meet demand and no more. On the other hand Judge Callander recognised that the term used in s 4(a)(ii) was “demand” and held that this must be interpreted in terms of current customer demand for choice. He said that legislators could not have intended shopkeepers, at least, on a day of very high customer demand, to empty shelves and thus limit the choices available to shoppers. Again, this finding seems to me to be correct.

[42] In addition, Judge Callander held that local conditions must be taken into account, given the fact that the area where the shop is is a specific focus of s 4(i)(a)(ii). Again this is clearly the case on the basis of the wording. As such, in this case, the fact that we are looking at Waiheke Island, an island with a small number of shops and only one supermarket, and on a weekend where the population is swelled to some 30,000 from its ordinary 7,000 must have major significance. Also we are looking at a supermarket which undertakes a daily replenishing of its shelves, a supermarket where fresh produce has to be brought in on the ferry with a limitation of the amount of produce that can be brought in at any time and a limitation on storage capacities at the supermarket.

[43] Although the previous restrictions under the 1977 Act may have favoured smaller shops, there is nothing in the s 4(1)(a) exemption that would suggest it cannot cover larger shops as well as smaller shops if, in fact, it can be shown that the quantity of goods for sale does not exceed demand. In centres without the particular factors relating to Waiheke Island and the influx of tourists for the weekend it is likely that larger stores would not be able to satisfy this third requirement. In the case of Waiheke, on the basis of the evidence provided, it would seem probable that the Waiheke supermarket would meet this requirement, although on the information given this cannot be concluded definitively.

Should the Discretion be Exercised?

[44] The question remains as to whether the discretion should be exercised to make the declaration in the form requested. It is true that a declaration in this case can be seen as given in respect of specific circumstances as against the position in the case of Auckland City Council v Attorney-General [1995] 1 NZLR 219, where the declaration sought was in general terms and thus could be seen as being sought in a vacuum. In addition, the Department has been represented at the hearing and it can be seen as representing the prosecuting authority as well as, to a degree, representing or at least putting forward views in respect of the competing public interests involved.

[45] When directions for service were sought by the plaintiff it was submitted that there was no need to serve other shopkeepers on Waiheke Island on the basis that the issue should be determined between the plaintiff and the Department. This was accepted. While trade competitors may see themselves as interested in whether or not Woolworths opens on the days in question, this is a matter of interpretation of legislation.

[46] Another group that could be seen as having an interest would be the workers involved. There is no indication from Woolworths as to how the workers would be chosen to work on the days in question but equally there is no indication that there would be any opposition from the Woolworths’ staff in respect of the proposed opening. In any event, as said earlier, this case just involves the interpretation of legislation.

[47] Given the above, I do not consider that the absence of representation of those groups is fatal but it is possible that both those groups may have been able to put further evidence of the factual position before the Court and thus their absence may weigh against the declaration being granted.

[48] The main problem with the declaration as sought, however, is (as pointed out by the Department) that it does not deal with the quantity issues. The other problem with the declaration as sought is that there has to be an assumption that the goods for sale will come within the categories set out in the schedule and that in turn the individual items to be sold come within those categories and thus within the s 4(1)(a) exemption. Equally the declaration in the form sought does not cover whether the goods to be sold do reasonably need to be bought at any time. As such the question of lawfulness cannot be definitely answered.

[49] There thus seems little utility to the plaintiff in making the declaration. On the other hand it is to be hoped that the exposition of the principles involved and the endorsement by the High Court of the decision of Judge Callander in Department of Labour v Cavanagh should give more basis for Woolworths to make its own decision and indeed more ability for the Department to provide more detailed advice to shopkeepers in the future.

Costs

[50] Costs were not sought and thus no costs are awarded.

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