Fordham Laboratories Pty Limited v Sor & Anor

Background 5The background to this appeal may be shortly stated. On 19 May 2003, Fordham Laboratories Pty Ltd (the applicant) leased to the two respondents (Kim-Po Sor and Vattanak Im) a retail premises in South Camden, which was used as a mixed business and video store. The lease was for a term of three years with an option to renew for two further terms, each for a period of three years. Following the exercise of the first option to renew, the lease expired on 19 May 2009 and was continued, by agreement, as a monthly tenancy. In 2007, a dispute had arisen concerning the applicant's claim that the respondents had failed to pay 21,144.42 in respect of outgoings in breach of the lease. The dispute was mediated by the registrar, retail tenancy disputes. The mediation failed and a certificate to that effect was issued on 13 June 2007. On 9 June 2009 a notice to quit was served on the respondents requiring vacant possession by 31 July 2009. However, by agreement, the applicant allowed them to remain in possession until 19 August 2009. 6By a statement of claim filed on 10 November 2009 in the Local Court, the applicant claimed the sum of $68,201.65 for costs of securing and making good the premises, unpaid outgoings and interest. Each of the respondents filed a defence in which, inter alia, s 68 was pleaded as a bar to the proceedings "in answer to so much of the [applicant's claim] that has not been subject to mediation". 7When the claim came on for hearing before the magistrate on 23 August 2010, the respondents contended that it could not proceed until the whole of the claim had been mediated in accordance with s 68. A letter was tendered for the first respondent in which he had invited the applicant to mediate before filing his defence and that invitation was not accepted. The applicant submitted that as far as the claim for outgoings was concerned, the certificate issued on 13 June 2007 satisfied the requirements of the section. The magistrate was informed that further mediation had been sought by the applicant on the Friday before the hearing but that mediation had not taken place because the respondents had declined to participate on the ground that the Administrative Decisions Tribunal had no jurisdiction to mediate whilst the proceedings were pending in the Local Court. A certificate dated 18 August 2010 had been issued by the registrar of the retail tenancy unit verifying that the proposed mediation had not taken place, which the applicant contended should satisfy the requirements of s 68 for that part of the claim that was not covered by the June 2007 certificate. 8In a reserved judgment delivered on 3 September 2010, the magistrate noted that there had neither been mediation for the financial years after 2006 nor for the cost of making good the premises. His Honour concluded at [18] - [19]; [21] - [22]: "[The applicant] filed a Statement of Claim in the Local Court before applying for mediation with respect to accounts rendered on 16/7/2009; and before make good works were completed and an account rendered and payment demanded from [the respondents]. [The applicant] sought to bypass the requirement to mediate before commencing proceedings in the Local Court. [The applicant] has commenced proceedings in the Local Court before complying with the requirements of s 68 of the Retail Leases Act . The statement of claim is an abuse of the process of the court, consequently the pleadings are struck out." 9The summons seeking leave to appeal identifies the ground of appeal as follows: "His Honour Magistrate Bradd erred in law by construing section 68 of the Retail Leases Act 1994 (NSW) so as to prevent the commencement of proceedings in the Local Court before complying with the requirements of section 68 of the Retail Leases Act." 10Before summarising the competing arguments in this appeal, it is helpful to ambulate through Division 2 of Part 8 of the Act in which s 68 is found. Division 2 establishes a system of mediation of retail tenancy disputes. A registrar of retail tenancy disputes is appointed by the Minister of Planning and Housing (s 64). In the exercise of his or her functions under the Act, the registrar is independent of ministerial control (s 65(4)). The registrar's functions include facilitating the resolution of a retail tenancy dispute by mediation (s 65(1)). The parties may refer a retail tenancy dispute to the registrar for mediation (s 66). Mediation is not limited to formal mediation procedures but includes preliminary assistance in dispute resolution (s 67(1)). Statements made in the course of mediation are not admissible at a hearing of a claim under Division 3 or in any other legal proceedings (s 69). 11Another Division of the Act bears mention. Section 75, which is within Division 3, provides for civil proceedings pending in a court that involve a retail tenancy dispute to be transferred to the Administrative Decisions Tribunal but only if the court is satisfied that the dispute is such as may effectively be dealt with as a claim under Division 3; that it is appropriate that the dispute may be dealt with by the Tribunal and that the interests of justice do not require that the matter be dealt with by the court. However, the section requires the court to have regard to the general principle that retail tenancy disputes should be dealt with by the Tribunal rather than by a court.

Argument 12The applicant was represented by Mr I Hemmings of counsel, the first respondent by Mr B Pluznyk of counsel and the second respondent by Mr D Carbone, solicitor. 13Mr Hemmings submitted that the magistrate focussed on the commencement of the proceedings and in doing so misunderstood or misapplied the terms of s 68. On the ordinary principles of statutory construction, the effect of the section was simply to require a certificate of mediation, or a court's satisfaction otherwise that the matter was likely to resolve. Mr Hemmings pointed out that s 68 does not say that proceedings "may not be commenced" and referred to the explicit use of the term "commenced" in other sections of the Act (see for example, ss 77A and 161 of the Act). The words "subject of proceedings before any court" were necessarily broad and directed towards the consideration of the proceedings, not their commencement. 14The words "otherwise satisfied that mediation ...is unlikely to resolve the dispute", Mr Hemmings argued, were fatal to any construction that the section requires mediation to have occurred prior to proceedings being filed. It was put to me that the provision expressly allowed parties who had not obtained a certificate to, nevertheless, proceed to have the matter heard if the court was satisfied that mediation was unlikely to resolve the dispute. 15Mr Hemmings contended that if the magistrate had not been satisfied that the certificate tendered by the plaintiff fulfilled the requirements of s 68(1), the next step for his Honour was to consider whether mediation was unlikely to resolve the dispute, not to simply dismiss the proceedings for want of jurisdiction. The court also had the option of staying the proceedings until mediation had occurred. A further argument was that on the facts before the Local Court, the proceedings should not have been struck out because the requirement to mediate had in part been satisfied and there was a certificate from the Registrar to that effect. Moreover s 68(4) was a complete answer to any construction that a court did not have jurisdiction to hear the proceedings in the absence of the parties obtaining a certificate covering the entire dispute before the statement of claim was filed. Mr Hemmings submitted that the effect of that provision was that, in the event that the requirements of s 68 are not complied with, the decision made by the court is nevertheless valid and indicates that s 68 is not a bar to jurisdiction. 16Another submission focussed on the phrase "unless and until". The ordinary meaning of "unless" is except and the ordinary meaning of "until" is up to the point in time. Mr Hemmings contended that if the section is construed to mean that proceedings cannot be commenced unless either of the two preconditions had been satisfied, then such a construction gives the word "until" no work to do. During argument, Mr Hemmings made particular reference to Oriental Carpet Department Store Pty Ltd v Supacenta Pty Ltd [2003] NSWSC 783; (2003) 11 BPR 21 and to McDonald's Australia Limited v Challenger Property Nominees Pty Limited [2003] NSWSC 963. 17Mr Pluznyk submitted that the words "may not be the subject of proceedings before any court unless and until" are unequivocal. If a court is to determine that mediation "is unlikely to resolve the dispute or matter" an application must be made under UCPR 6.4(1)(h) or (i) to the court before substantive proceedings are commenced. T he applicant bears the onus of satisfying the court that mediation would be unlikely to resolve the dispute. Section 68(4) was no answer to a construction that a court does not have jurisdiction to hear the proceedings. The subsection is intended to overcome having to set aside a judgment and re-litigate in the event that the court and parties were unaware of the requirement and a matter is determined without mediation. Mr Pluznyk put to me that while the word "unless" in s 68 mandates mediation, the word "until" defines the point at which mediation is to take place - being the point in time before which the dispute becomes the subject of proceedings. He cited Wilson v Sydney Markets Ltd (No 3) [2010] NSW ADT 215. 18As to the applicant's contention that his Honour erred in striking out the whole of the plaintiff's claim, Mr Pluznyk said that there was no such ground of appeal. Mr Hemmings in reply agreed that there was no specific ground of appeal, which dealt with that issue, but told me that the approach by the magistrate to the matter as a whole was to proceed upon an interpretation of s 68 that was erroneous. 19Mr Carbone concurred with the submissions of the first respondent and contended that the applicant's interpretation of s 68 was inconsistent with its specific wording. He said that the decision in Oriental Carpet Department Store Pty Ltd could be distinguished on its facts. He also cited GPT Management Ltd v Spa Heaven Pty Ltd [2005] NSWSC 1043. In response to Mr Carbone's reliance upon what was said by Palmer J in GPT Management Ltd at [14] - [16], Mr Hemmings contended that the general policy identified by his Honour of "mediation rather than litigation" did not change the approach to be taken to the interpretation of s 68(1).

A review of the authorities 20My attention was directed to a number of cases that might provide assistance in resolving the point of statutory construction. None of the legal representatives had been able to find a case that authoritatively decided that the terms of s 68(1) must be complied with before proceedings could be commenced. 21In Oriental Carpet Department Store Pty Ltd, Young CJ in Eq (as his Honour then was) said at [10]: "There has never been any certificate granted under s 68. The consequence is that under subs (3) of s 68, apart from an order in the nature of an injunction, this court must not proceed unless it is satisfied that mediation under the part is unlikely to resolve the dispute or matter" (italics added). 22Whilst support for the applicant's case might be found in Young CJ's remarks, no argument had been advanced before his Honour that the proceedings should not have been commenced. The Chief Judge noted at [11] that it was not until the day before judgment that either side paid attention to whether the Act applied to the lease. As Mr Carbone submitted, it is evident that the parties had not turned their minds to the issue of mediation. In the present case, the question of the plaintiff's failure to mediate was raised in the respondents' defences. 23In McDonald's Australia Limited, Einstein J was asked to consider a preliminary question of whether the court was satisfied pursuant to s 68(1) that mediation under Part 8 of the Act was unlikely to resolve the dispute raised in the summons. His Honour determined this issue, notwithstanding the absence of a certificate from the registrar that mediation had not occurred before the hearing. Einstein J, however, was not asked to consider whether the proceedings could be commenced although the terms of s 68(1) had not been complied with. 24Another decision that was not referred to by the parties must be mentioned. In Ticehurst v Cross [2005] NSWSC 574; (2006) NSW ConvR 56-136, the plaintiffs had leased a supermarket to the defendant. By a statement of claim, the plaintiffs sought judgment for the possession of the property and had claimed arrears of rent and damages. Judgment for possession was entered, no defence having been filed. The plaintiffs applied for an assessment of damages, which the defendant resisted. One of the orders sought in the defendant's motion was that the statement of claim be struck out pursuant to s 68 of the Act. It was common ground that there was a retail tenancy dispute under s 63 of the Act and there had not been mediation between the parties. The defendant's motion was dismissed. Studdert J said at [13] - [15]: " It is to be noted that s 68 of the Retail Leases Act requires that a dispute as defined may not be the subject of proceedings before any court absent the registrar's certificate as contemplated in subs (1) unless "the court is otherwise satisfied that mediation ... is unlikely to resolve the dispute ... " Moreover, s 75 of the Retail Leases Act requires that civil proceedings involving a retail tenancy dispute be transferred to the tribunal, "but only if the court is satisfied that (a) the dispute is such as may effectively be dealt with as a claim under this Division and that it is appropriate that the dispute be dealt with by the Tribunal; and (b) the interests of justice do not require that the matter be dealt with by the court." Section 75(2) defines the general principle that retail tenancy disputes should be dealt with by the Tribunal rather than by a court. Because of the provisions of s 68, the plaintiffs' outstanding claim may not proceed in this court unless this court is satisfied that mediation under the Retail Leases Act is unlikely to resolve the matters in dispute. Section 68(1) makes it plain that it is for the court to determine what the prospects of mediation would be: see as to this the decision of Young CJ in Eq in Oriental Carpet Department Store v Supacenta Pty Ltd [2003] NSWSC 783 at para 15" (italics added). 25Studdert J concluded that mediation under Part 8 of the Act was unlikely to resolve the dispute between the parties. The defendant's motion was dismissed. His Honour's approach supports the argument advanced for the applicant. 26On the other hand, Mr Pluznyck drew my attention to the judgment of Judicial Member Fox on a costs application in Wilson v Sydney Markets in which he observed at [5]: "Division 2 of Part 8 sets up a scheme to facilitate mediation and then (in s 68) prohibits the commencement of proceedings unless the Registrar has certified that the mediation has failed." 27It is convenient to mention the remarks of Slattery J in Bigdale Pty Ltd trading as Enigma at the Royal Motor Yacht Club & Anor v Royal Motor Yacht Club of NSW Port Hacking Branch [2010] NSWSC 1196, (a case that was not cited by the parties). His Honour noted at [72]: " Retail Leases Act , s 68 mandates that disputes must be submitted to mediation before proceedings can be taken..." 28However, there had no been argument before either Slattery J or Judicial Member Fox as to the proper construction of s 68(1). 29In GPT Management Ltd an argument had arisen as to whether the plaintiff's claim involved a retail tenancy dispute and by virtue of s 68 of the Act, whether the plaintiffs were not permitted to bring a motion for summary judgment. Palmer J said at [14] - [16]: "The definition of " retail tenancy dispute " in s 63(1) is exceedingly broad and, clearly enough, it is intentionally so. The fundamental object of the retail tenancy legislation enacted in the States and Territories of Australia is to protect the weak against the strong, ie the small retail tenant against the large retail lessor: see, for example, Wellington v Norwich Union Life Insurance Society Limited [1991] 1 VR 333 per Nathan J; see also Lang's Commercial Leasing in Australia para 45-110. Part of the legislative policy of protection of retail tenants is that there should be mediation rather than litigation. The policy is evidenced in s 75(2), which requires Courts to have regard to " the general principle " that retail tenancy disputes should be dealt with, not by the Court, but by the special tribunal established to deal with such matters. When the tribunal comes to determine a claim under Pt 8 Div 3, it is required by s 74(1) and s 74(2) to endeavour to bring the parties to a mediated settlement rather than a litigious determination. The same policy of "mediation rather than litigation" is repeated in s 68(1) of the Act, which prevents a retail tenancy claim being made the subject of proceedings in any court before the possibility of a mediated settlement has been exhausted . It is because the policy of the Act is to encourage parties to retail leases to discuss their differences constructively before resorting to legal proceedings that the definition of " retail tenancy dispute " in s 63(1) is so wide. Within the purview of Pt 8 is "any dispute concerning" the liabilities or obligations of a party to a retail lease. That does not mean that the dispute is confined to legal issues, such as the existence or extent of an alleged legally enforceable liability or obligation. The dispute may be concerned with broader questions of fairness as to how an admitted legal liability may, or should, be enforced" (italics added). 30Palmer J was satisfied at [21] that the second and third defendants had demonstrated a sufficiently arguable case that the claim involved a "retail tenancy dispute" and the whole of the proceedings were prohibited by s 68(1). The motion for summary judgment was dismissed. A measure of support for the respondents' argument on the construction of the section is found in Palmer J's remarks, but his Honour was not required to decide whether the plaintiff's proceedings could be commenced without mediation. 31My review of the above cases does not demonstrate a uniformity of opinion as to the construction of s 68(1), which I now turn to consider.

Decision 32In endeavouring to resolve the proper construction of the section, I am mindful of Allsop P's helpful summary of principles of statutory interpretation in Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 at [12]: "It is the language of Parliament that must be interpreted and construed: Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 at 384-385 [12]-[16] (Spigelman CJ), 398-403 [158]-[185] (Mason P), 403 [191] (Beazley JA) and 403 [192] (Giles JA). However, as is now beyond dispute, in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context. Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. These are legitimate means of understanding the purpose of the Act and of the relevant provisions, against which the terms and structure of the provisions and the Act, and a whole, are to be understood. Fundamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose. Nevertheless, general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect." 33Another principle of statutory interpretation is that "a court construing a statutory provision must strive to give meaning to every word of the provision": Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 382 [71]. 34Section 68 mandates that a retail tenancy dispute may not be the subject of proceedings before any court unless and until the registrar has certified in writing that mediation under Part 8 has failed to resolve the dispute or the court is otherwise satisfied that mediation under Part 8 is unlikely to resolve the dispute. 35Judicial consideration of words similar to "the subject of proceedings" indicates that the expression has a wide ambit. In The Queen against Moore and Others; Ex parte The New South Wales Public Service Professional Officers' Association [1984] HCA 45; (1984) 154 CLR 1, Gibbs CJ said at 8 [4]: "As was pointed out in Australian Timber Workers' Union v. Sydney and Suburban Timber Merchants' Association , the expression "a matter ... the subject of proceedings" connotes parties as well as a subject for decision; see also Western Australian Timber Workers' Industrial Union of Workers (South West Land Division) v. Western Australian Sawmillers' Association." 36In Musgrave v Greenfields Mountain Pty Ltd and Anor [2002] NSWSC 668, when considering the words "subject to the first proceedings" in s 78(3) of the Supreme Court Act 1970, Palmer J said at [25]: "In my opinion, the "subject" of proceedings is not identified merely by reference to causes of action pleaded. It might well have been otherwise if the subsection had required a relationship or connection with "the issues" in the first proceedings. The word "subject" is, however, much wider and, I think, deliberately so. One has to look at the substance of the dispute in the proceedings, which may be demonstrated not only by the pleadings but also by the evidence which is likely to be adduced. In pleadings, it is common to find many causes of action alleged in the alternative, all revolving around an essential complaint, or an essential set of circumstances. That essential complaint or set of circumstances is, in my opinion, the "subject" of the proceedings for the purposes of s.78(3)." 37In my view, the words "the subject of proceedings" in s 68(1) are not confined to the pleadings by which an action is commenced, but embrace the evidence and ultimate subject for decision. These words point to a court having jurisdiction, notwithstanding the commencement of the proceedings in the absence of certification by the registrar that mediation has failed to resolve the dispute. 38I consider that the words "may not be the subject of proceedings" were used by Parliament in s 68(1) instead of "may not be commenced" so as to indicate that a court might consider the subject of the dispute between the parties where the court is satisfied that mediation under Part 8 is unlikely to resolve the dispute, even though the proceedings before the court were commenced without the dispute being submitted to mediation. 39Support for the view that the failure to submit the dispute to mediation before the commencement of proceedings does not deprive a court of the jurisdiction to satisfy itself that mediation is unlikely to resolve the dispute and if so satisfied, then to determine it, is found in s 68(4). Subsection (4) makes it plain that s 68 does not affect the validity of any decision made by a court. It makes little sense, in my opinion, to confine the operation of subs (4) to those cases where the parties (and the court) were unaware of the provisions of s 68(1). 40Such an interpretation of s 68(1) accords with the object of the legislation which Palmer J in the passage quoted at [29] above referred to as "mediation rather than litigation". The court will not proceed unless and until the court is satisfied of the unlikelihood of a mediated resolution. The words "unless and until" have been often used as words of futurity: see for example Western Australian Bank v Royal Insurance Co [1908] HCA 11; (1908) 5 CLR 533. 41What then is to be made of the heading "Disputes and other matters must be submitted to mediation before proceedings can be taken"? Section 35(2)(a) Interpretation Act 1987 provides that (except as provided by subsections (3) and (4)) a heading to "a provision of an Act... (not being a heading referred to in subsection (1)) shall be taken not to be part of the Act". The heading to s 68 does not fall within subs (1), (3) or (4) of s 35 Interpretation Act and does not assist in the interpretation of the section. In any event, a heading of a provision in an Act will necessarily be brief and may well be inaccurate or incomplete. 42I find myself in agreement with Young JA's and Studdert J's construction of s 68: see [21] and [24] - [25] above. 43In my respectful opinion, the magistrate erred in law and the ground of appeal has been established. The requirement to mediate is not a condition precedent to the commencement of proceedings, but the court may not proceed to hear and determine the dispute unless satisfied that mediation under Part 8 is unlikely to resolve the dispute. 44The statement of claim was not an abuse of process and the pleading should not have been struck out. As no certificate had been issued for that part of the dispute which was not embraced by the certificate of 13 June 2007, it was incumbent upon his Honour to consider the preliminary question of whether the court was satisfied pursuant to s 68(1) that mediation under Part 8 of the Act was unlikely to resolve the unmediated part of the dispute. Should his Honour have been so satisfied, he was obliged to proceed to hear and determine the dispute. If not satisfied, the proceedings were to be stayed, the parties being directed to refer the unmediated part of the dispute to the registrar for mediation.

Orders 45I do not propose to make the order sought by the applicant that the matter be heard by a different magistrate. No reason has been advanced that would justify such an order. 46I make the following orders: (1)Leave to appeal granted. (2)Appeal allowed. (3)The judgment of Bradd LCM delivered on 3 September 2010 be set aside. (4)The matter is remitted back to Bradd LCM to be heard and determined according to law. (5)The first respondent (Kim-Po Sor) and the second respondent (Vattanak Im) are to pay the applicant's (Fordham Laboratories Pty Limited) costs on an ordinary basis.

Amendments 26 July 2012 - corrected medium neutral citation Amended paragraphs: Cover sheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2012