Ashcroft's Supa IGA Orange Pty Ltd v Director General, Department of... [2007] NSWCA 290 | Case summary

Reasons for Decision 1 On 27 November 2010, the Applicant applied for an exemption under section 10 of the Retail Trading Act 2008 ("the Act"). It made an application for retail trading on Boxing Day in respect of its store (Ashcroft's Supa IGA Orange). 2 On 22 December 2010, a delegate of the First Respondent refused to grant the Applicant an exemption because she was not satisfied that the Applicant had demonstrated the existence of 'exceptional circumstances'. 3 The Applicant has applied to the Tribunal for review of that decision. 4 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. 5 The Applicant opposed that Application. 6 The matter came before me for hearing on 24 December 2010. I joined Mr Dwyer as a party to the proceedings. Following the hearing, I affirmed the decision to refuse to grant the exemption that the Applicant had sought. 7 The Applicant and the First Respondent have sought more detailed reasons and these are now provided. The Legislative Scheme 8 The Act recognises 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 Act: section 4(2). 9 Part 3 of the Act concerns 'Exemptions for shop trading' 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). 10 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. 11 The right to seek review of a determination of the Director-General is pursuant to section 12. From 29 November 2010 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. 12 In a recent decision in the matter of Dwyer v Department of Services, Technology and Administration and Kmart Australia Limited [2010] NSWADT 312 ("the Kmart decision") I found that the applicable legislation for the purposes of an application for review by the Tribunal is that which was in force at the date of the reviewable decision. In this matter the relevant date was 22 December 2010. 13 On that day, section 12(4) of the Act had commenced and in my view, the rights included in section 12(4) of the Act are applicable to this matter. It is my view that Mr Dwyer satisfies the provisions of section 12(4). It follows, in my view, that Mr Dwyer is eligible to bring these proceedings and should be joined as a party. Nature of proceedings 14 The application before the Tribunal is an application for review of a reviewable decision. Pursuant to section 63(1) of the Administrative Decisions Tribunal Act 1997 the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including factual material and the written or unwritten law. The Tribunal may exercise all of the functions and powers of the original decision-maker: section 63(2). 15 The 'correct and preferable decision' is to be determined having regard to the statutory test enumerated in section 10 of the Act and the material that is before the Tribunal, rather than being confined to that material which was before the original decision maker. Section 10 of the Act 16 Section 10(1) confers a discretion on the Director-General to grant an exemption from the requirement that a shop be kept closed. Section 10(2) provides that an exemption must not be granted unless the Director-General is satisfied that it is 'in the exceptional circumstances of the case in the public interest to do so'. 17 In my view, section 10(2) provides for a two stage process. I think the two stages require me to determine (a) whether there are exceptional circumstances and (b) whether it is in the public interest that an exemption apply. In forming that view regard must be had to the four factors that are listed in paragraphs (a) - (d) of section 10(2). Exceptional circumstances 18 The Tribunal must be satisfied that "it is in the exceptional circumstances of the case in the public interest" to grant the exemption. There should be a general presumption against trading on the restricted days. The phrase "exceptional circumstances" is a reference to the specific circumstances of the case. 19 Regard must be had to the scope and purpose of the Act in assessing whether circumstances are 'exceptional' for the purposes of section 10(2): Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 -382. 20 The Macquarie dictionary defines 'exceptional' as: "1. forming an exception or unusual instance; unusual; extraordinary. …" 21 In the Kmart decision I referred to a number of decisions in which the meaning of the phrase 'Exceptional circumstances' has been considered. See in particular the discussion in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290. 22 In the Kmart decision I expressed the view that the phrase 'exceptional circumstances', in the context of section 10 of the Act sets a high bar requiring more than 'special' circumstance. 23 In the present matter the Applicant relies on a number of factors which he submits meet that standard. In particular the Applicant points to the following circumstances: (a) the 65th Annual Jazz Convention ("the Jazz Convention") is being held in Orange from 26 - 31 December 2010 and is expected to attract an influx of visitors who may wish to purchase food and beverages from the Applicant's store; (b) the Applicant traded on Boxing 2009 in breach of section 4 of the Act due to 'overwhelming support from the community' and engaged in 4217 customer transactions; (c) the Applicant considers small stores and petrol stations do not have the necessary range and volume to cater for the needs of the community eating, drinking and socialising on Boxing Day; (d) the Applicant is proposing to pay approximately 30 volunteer workers double time and a half; (e) the Applicant has ordered stock (including perishable stock such as milk and bread) and its volunteer workers have organised their family commitments around working on Boxing Day, on the assumption that, as Coles was granted an exemption, it would also be permitted to trade; and (f) Coles is in similar circumstances to the Applicant and was granted an exemption to trade in Orange on Boxing Day 2010. 24 In the Kmart decision I considered a number of issues in relation to the holding of the Jazz Convention. I concluded that while I was satisfied that the circumstances are 'special', I do not consider that they are 'exceptional'. For the reasons I gave in the Kmart decision I remain of that view. 25 I do not consider that the fact that the Applicant proposes to pay staff above award rates for the day constitutes grounds for an exemption. If that were the case, any trader could circumvent the legislation by offering proposes to pay staff above award rates for the day. This is inconsistent with the clear intention of the legislation that there should be a general presumption against trading on the restricted days. The object of section 10 would be undermined if a retailer could effectively engineer exceptional circumstances through guaranteeing to pay additional amounts. 26 Similarly, I do not consider that the fact that the Applicant has ordered stock on the assumption that it would be granted an exemption, constitutes grounds for an exemption. Again, it would subvert the purpose of section 10 if circumstances became 'exceptional' by reason of assumptions made by retailers as to the likelihood or otherwise of obtaining an exemption. 27 The Applicant points to the fact that Coles is in similar circumstances to the Applicant and was granted an exemption to trade in Orange on Boxing Day 2010. The circumstances of the exemption granted to Coles is discussed in the decision in Shop Distributive and Allied Employees Association v Department of Services, Technology and Administration and Coles Supermarkets Australia Pty Ltd [2010] NSWADT 313 28 I accept that Coles is in similar circumstances to the Applicant and was granted an exemption to trade in Orange on Boxing Day 2010. However, that decision was made prior to the Kmart decision. While I considered whether the decision to grant Kmart an exemption to trade in Orange on Boxing Day 2010 was the correct and preferable decision, I did not consider whether the decision to grant Coles an exemption was the correct and preferable decision. 29 I accept that the decision to grant Coles an exemption places the Applicant at a commercial disadvantage. This has caused me some concern. However, the issue that I need to determine is whether or not the commercial disadvantage constitutes "exceptional circumstances" that would warrant the grant of an exemption. In my view, it does not. 30 As I have noted, it is my view that the legislative intention is clear - there is a general presumption against trading on the restricted days. The fact that a competitor is permitted to trade is clearly 'special' circumstances. However, I do not consider that they are 'exceptional'. 31 I accept that this provides a less than satisfactory outcome to the Applicant. However, it is consistent with the scope and purpose of the Act: Project Blue Sky v Australian Broadcasting Authority The 'public interest' 32 In the circumstances it is not necessary that I consider whether granting the exemption is in the public interest. However, for completeness I will deal with it briefly. 33 The 'public interest' refers to the interest of the general public, not that of individuals employees or employers. The notion of 'public interest' refers to matters that might affect the public as a whole. While the content of the notion of public interest cannot be precisely defined, it is distinct in nature from the interests of the parties. 34 Section 10(2) requires me to determine whether it is in the public interest that an exemption apply. In forming that view regard must be had to the four factors that are listed in paragraphs (a) - (d) of section 10(2). 35 These factors do not allow consideration of the fact that a competitor has been granted an exemption. This would be a private interest rather than a public interest. As noted, public interest is distinct in nature from the interests of the Applicant and its competitors. 36 I have considered each of the four factors listed in paragraphs (a) - (d) of section 10(2). I am not satisfied that consideration of those factors leads to the conclusion that it is in the public interest to grant the exemption. 37 Having formed this view, it follows that the correct and preferable decision is to affirm the decision to refuse to grant the exemption that is sought. Orders 1. Gerard Dwyer is joined as a party 2. The decision by the department of Services, Technology and Administration is affirmed.

Ashcroft's Supa IGA Orange Pty Ltd v Director General, Department of Services, Technology and Administration & Anor

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