Beresford v Departmenet of Urban Services [2004] ACTSC 58

4. It is also common ground that, following the expiry of the licence agreement which on its terms occurred on 31 December 1999 (Agreement, par 2.1, AB 30), the appellant was permitted to remain in occupation, and there were ongoing negotiations between the appellant and the respondent about a new licence, but that these negotiations did not result in the issue of a formal licence because the appellant was not prepared to abide by a clause which the respondent insisted be included in any new licence. The dispute was explained in an affidavit of Mr Taylor as follows (AB 42) -

In early 2001 ACTNOWaste officers had negotiations with the Applicant in connection with a new licence for the Block 6 Land. However, those negotiations did not result in an agreement for licence because the Applicant insisted that a clause in the proposed licence agreement, which prevented the stacking of vehicles on top of each other, was not acceptable to the Applicant and he refused to sign a licence agreement with that clause in it. The Territory was not prepared to execute a licence agreement, which permitted the Applicant to stack vehicles on top of one another in the Block 6 Land and, accordingly, no final agreement occurred. ACTNOWaste does not want persons to stack motor vehicles on top of each other in the BRRE for the reason that it believes that practice is highly dangerous and might lead to injury or death to persons in the vicinity of the stacked cars.

5. The negotiations having reached a stand off, the appellant commenced proceedings in the Tenancy Tribunal by way of a Notice of Dispute on Christmas Eve, 2001. This sought to invoke the jurisdiction of the Tenancy Tribunal, a body established pursuant to the Tenancy Tribunal Act 1994 (the Tenancy Tribunal Act). This Act provided that disputes arising from certain types of retail and commercial leases, which may include licence arrangements and include disputes concerning the non-renewal of such arrangements, may be determined in the Tribunal (s 6).

6. The jurisdiction of the Tribunal, however, extends only to disputes over those leases set out in s 5(1) of the Tenancy Tribunal Act, being leases "for premises, situated in the Territory, of any of the following kinds:

(a) retail premises, or premises located in a shopping centre, other than premises with a lettable area greater than 1000 metres² that are leased to a corporation that is not eligible to be incorporated as a proprietary limited company under the Corporations Law;

(b) small commercial premises that are not located in a shopping centre;

(c) premises, or a class of premises, prescribed by the Code.

7. Small commercial premises were defined in the Act as meaning commercial premises with a lettable area of no more than 300 metres², and it is common ground that the land in dispute here comprised some 650 metres², so the land would not fall within s 5(1)(b). I am satisfied that there is nothing in the Code referred to in s 5(1)(c) that would extend the Act to this land. That means that the Tribunal would only have had jurisdiction if the land in question met the definition of "retail premises".

8. On 25 February 2002 there was a pre-hearing proceeding in the Tenancy Tribunal at which the Registrar of the Tribunal requested submissions within seven days as to whether the dispute fell within the jurisdiction of the Tribunal. The Registrar was required pursuant to s 13 of the Tenancy Tribunal Act to form a view as to whether there was jurisdiction for the dispute to proceed within the Tribunal. The respondent filed written submissions on 4 March 2002, within the time set by the Registrar, setting out why it was of the view that there was no jurisdiction. These submissions were not included in the Appeal Book but were included with the respondent's submissions on the appeal. The submissions make two points - that as a matter of law, "premises" as used in the Tenancy Tribunal Act does not include vacant unimproved land, and that, in the alternative, the land does not comprise retail premises.

9. Section 13(3) of the Tenancy Tribunal Act provides that -

The Registrar shall determine whether a relevant dispute exists in such manner as he or she thinks appropriate, in consideration of any submission made pursuant to the invitation in paragraph (2)(b).

10. Although the Registrar apparently sought the submissions, which were filed within time, it appears that the duty to determine this question was never complied with and the matter simply languished in the Magistrates Court. Where the Registrar is not satisfied that there is a relevant dispute, s 13(4) of the Tenancy Tribunal Act provides that no further action with respect to the dispute shall be taken, but there is a requirement to give the parties to the dispute a review statement about the decision to take no further action (s 13(4)(b)). This seems never to have occurred.

11. On 1 July 2002 the Tenancy Tribunal Act was repealed, and the Leases (Commercial and Retail) Act 2001 came into force, but little turns on this because there are appropriate transitional provisions to deal with disputes that had not been finalised before the entry into force of the new Act.

12. On 12 November 2003, some eighteen months after the submissions were made as to lack of jurisdiction, the respondent filed a notice of motion that the proceedings be dismissed, and this came before Magistrate Burns on 24 November 2003, where it was promptly dealt with, the learned Magistrate forming the view that the Act did not apply to arrangements for the occupation and use of bare land. The relevant parts of his reasoning are as follows (AB 17) -

These proceedings were commenced by way of a notice of dispute which was filed on 24 December 2001. It was not clear from the notice of dispute the nature of the legal rights which the applicant was seeking to enforce.

... ...

Questions relating to or disputes relating to retail or commercial premises and leases for those premises in the Australian Capital Territory were dealt with under the ordinary rules of contract applicable in the Australian Capital Territory and before the ordinary courts of the Territory. With the advent of the Tenancy Tribunal Act however disputes relating to most retail premises and some commercial premises were given to the jurisdiction of the Tenancy Tribunal. The Tenancy Tribunal Act also created certain rights and provided certain remedies that were not then available under the ordinary laws of the Territory. The Tenancy Tribunal Act 1994 was subsequently repealed by the Leases (Commercial and Retail) Act 2001, but the transitional provisions of that latter enactment provided that in determining the issue before the court today which I will come to in a moment, on is to look to the provisions of the 1994 Act.

The legal issue for determination before the court today is a very narrow one and can succinctly be put as whether the licence agreement which the applicant says he was granted over land in Belconnen constituted a lease of premises to which the provisions of the Tenancy Tribunal Act applied, and the answer to that question depends on whether the land itself constituted premises for the purposes of the 1994 Act.

The 1994 Act does not define the term premises, however when one looks at the entirety of the 1994 Act and when one examines the way in which the term premises has been defined and interpreted in similar legislation in other states ... I am satisfied that bare land does not constitute premises for the purposes of the Tenancy Tribunal Act 1994_._

13. The learned Magistrate, sitting as President of a Tribunal with a defined jurisdiction, had a clear duty to determine whether the dispute fell within the jurisdiction of the Tribunal and in particular whether a licence for the use of bare unimproved land would fall within the term "premises". In written submissions to the Tribunal the respondent argued -

the term "premises" does not encompass land which is completely vacant. Such an interpretation would be consistent with a series of cases decided over a long period of time by superior courts including the High Court of Australia.

14. In Turner v York Motors Proprietary Limited [1951] HCA 52; (1951) 85 CLR 55 the High Court had to determine whether the New South Wales Landlord and Tenant (Amendment) Act 1948-1949 provided protection to the lessee of a block of vacant land. The relevant state legislation was common in most Australian states in the post war period, providing protection to tenants at a time of high demand for housing. The relevant question was whether vacant land could amount to "prescribed premises" and Dixon J, after referring to a line of Australian and English Authority said at 75 -

The word "premises" is no doubt a vague one but in legislation of this sort there are great advantages in a test of its application which is objective and consists in a readily ascertainable physical fact. Having regard to the history of the provision and the dictionary meaning of the word "premises", I think that we should adhere to the rule laid down that bare land without buildings, if let for the purpose of occupation as bare land, does not constitute premises.

15. It seems to me that the learned Magistrate was clearly correct in holding that, where the High Court has held that "bare land without buildings, if let for the purpose of occupation as bare land, does not constitute premises", the use of the term "premises" by the legislature in a statute without any statutory definition of the term, must be taken to have adopted the meaning set down by the High Court. Dixon J there referred to the dictionary definition in the then current Oxford New English Dictionary as "a house or building with its grounds or other appurtenances". This definition is still in use in the Shorter Oxford Dictionary.

16. The appeal must therefore be dismissed. Although an unsuccessful appellant would normally bear the costs of the other party, I am concerned that in this case, although the question of jurisdiction was squarely raised by the respondent and brought to the attention of the Registrar of the Tenancy Tribunal, there seems to have been a failure to deal with the question pursuant to s 13 of the 1994 Act. This question should have been determined by the Registrar and disposed of in early 2002. Instead, the matter languished, and was only brought on for determination by the action of the respondent in filing a notice of motion in November 2003. The matter was then promptly listed, and, it seems to me, correctly dealt with. I was left with a clear impression that the appellant, who represented himself at the appeal, could well have taken up alternative legal avenues to challenge the respondent if the jurisdictional question had been dealt with by the statutory processes under the 1994 Act in early 2002. I am minded to make no order as to costs, but would give leave to the respondent to relist the matter if it wishes to pursue the matter of costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Solicitor for the respondent: ACT Government Solicitor