Section 68(1) provides:
"A retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) may not be the subject of proceedings before any court unless and until the Registrar has certified in writing that mediation under this Part has failed to resolve the dispute or matter or the court is otherwise satisfied that mediation under this Part is unlikely to resolve the dispute or matter."
12 Neither Mr Adams, Mr Cleary nor I have been able to find any case discussing the meaning of the word "dispute" in the definition of "retail tenancy dispute" or otherwise for the purposes of Pt 8 of the Act. Mr Adams, however, relies on the following passage in paragraph 48-010 of Lang's Commercial Leasing in Australia :
"It is suggested that mediation is not a prerequisite to every claim made under a retail shop lease. It is indicated in the legislation that a prerequisite to mediation is the existence of a retail tenancy dispute. It is the nature of a dispute that the parties disagree on the merits of a claim. In The International Webster New Encyclopaedic Dictionary , 'dispute' is said to mean 'to debate; to quarrel; to call into question; to contest; to make the subject of a disputation; to oppose'. Accordingly, it is suggested that if the lessee has failed to pay rent or outgoings and is in possession or has abandoned the premises, there is, without more, no retail tenancy dispute. The lessor should then be entitled to terminate the lease, recover possession physically or by proceedings in the Supreme Court. It should also be possible to institute proceedings for rent and outgoings as a liquidated claim in the courts. The Registrar would only need to be approached if there was a dispute, involving some denial, defence or cross-claim by the lessee challenging the validity or size of the claim."
13 The essence of Mr Adams' submission is that, because the Second and Third Defendants' Defence does not show a legal ground upon which they can defend the Plaintiffs' claim for arrears of rent, there is no dispute as to that claim and, therefore, no "retail tenancy dispute" for the purposes of Pt 8 of the Act. I am unable to agree.
14 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, i.e. 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.
15 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.
16 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.
17 So, for example, a tenant may say to a landlord: "It is true that I, as one of several covenantors under the lease, have a joint and several liability with my co-covenantors. As a matter of law, you may enforce that liability against me alone. I have no defence to the claim, but I have a claim for contribution or indemnity from my co-covenantors and it would be harsh and unfair to rely on me alone to pay the whole of the liability when in justice I should be indemnified by my co-covenantors".
18 The landlord may say: "Your claim against your co-covenantors is nothing to do with me legally: you alone are liable to me for the whole debt. Pay me first and sue your co-covenantors afterwards".
19 If a tenant asserts that the landlord should, in fairness, stay its hand until the tenant has obtained contribution from a co-covenantor and the landlord refuses, asserting that is entitled to insist upon its strict legal rights, I do not see why that difference between them falls outside the words "any dispute concerning" the obligation of the tenant to pay the landlord arising under the lease. In my opinion, the words "any dispute concerning" should not be construed narrowly to mean "any legal issue concerning" , particularly in view of the remedial and protective character of the legislation as a whole.
20 The example which I have given in discussion is the situation in the present case. The Second and Third Defendants by their Cross Claim wish to indemnify themselves wholly or partly in respect of all of their liabilities to the Plaintiffs by recourse to the First and Fourth Defendants. Whether they should do so before or after paying the Plaintiffs the arrears of rent claimed in full, in my opinion, is capable of constituting a "dispute concerning" the obligations of the Second and Third Defendants to pay money under the lease for the purposes of Part 8 of the Act.
21 Accordingly, I am satisfied that the Second and Third Defendants have demonstrated a sufficiently arguable case that, as matters presently stand, the whole of these proceedings by the Plaintiffs are prohibited by s.68(1) of the Act. The Plaintiffs' Notice of Motion for summary judgment against the Second and Third Defendants must therefore be dismissed.