Perfection Fresh Australia Pty Ltd & Ors v Melbourne Market Authority [2013] VSC 287

**1 The West Melbourne Market (the "West Melbourne Market") is the Melbourne Wholesale Fruit, Vegetable and Flower Market (the "Fruit and Vegetable Market") located at 542 Footscray Road, West Melbourne. The West Melbourne Market is managed by the Defendant, which is the Melbourne Market Authority (the "Authority").

2 Since 2005 it has been proposed by the Victorian Government (the "Government") and the Authority that a new Wholesale Fruit, Vegetable and Flower Market (the "Epping Market") be established in Cooper Street, Epping (the "Epping site") and that the wholesale market operations conducted at the West Melbourne Market be relocated to the Epping Market site.

3 This is an application by the Plaintiffs, who are all present store holders at the West Melbourne Market, for an interim injunction principally directed to ensuring that store holders who conduct wholesale businesses at the West Melbourne Market do not lose the allocation of the stores they have been granted by the Authority at the Epping Market. The Authority has stated that if the Plaintiffs do not enter into the lease documentation by 31 May 2013, then the store holders' allocation will be removed from them and be reallocated by public tender.

4 The Plaintiffs also seek further information from the Authority relating to the prospective tenancies at the Market.

5 The proceeding commenced by writ issued 22 May 2013. By a summons issued on the same day, the Plaintiffs sought an interlocutory injunction. On 24 May 2013 the matter came before Judd J of this Court, where it was adjourned for hearing before me. On 27 May 2013 the Plaintiffs filed an Amended Statement of Claim. The matter then proceeded on 28 May 2013 as an interim injunction, seeking orders for in effect, a holding position to be established for a short period until 18 June 2013 and the provision of information to the Plaintiffs within that time.**

**6 For the purposes of the present application I accept the following as the factual background to the application. This is principally derived from the affidavit of Mr John Roach, the Chief Executive Officer of the Ninth Defendant. His evidence was not challenged by any evidence put on by the Authority. To the extent that other material has been set out below by way of background, it is derived from allegations made in the Amended Statement of Claim, which were again not the subject of challenge on the hearing of the application.

7 A summary of the history of the Fruit and Vegetable Market is as follows:**

(a) Prior to late 1969, the Melbourne Wholesale Fruit and Vegetable Market operated from the Queen Victoria Market in North Melbourne.

(b) On or about late 1969, the Melbourne Wholesale Fruit and Vegetable Market was relocated to the West Melbourne Market.

(c) When the West Melbourne Market commenced operation, most of the fruit and vegetable wholesalers, who had operated at the Queen Victoria Market, relocated their businesses to the West Melbourne Market.

(d) Prior to 1977, the West Melbourne Market was operated by the Council of the City of Melbourne.

(e) In 1977, the Melbourne Wholesale Fruit and Vegetable Market Trust Act 1977 (Vic) established the Trust which took over the operation of the West Melbourne Market.

(f) In 1993, the Melbourne Wholesale Fruit and Vegetable Market Trust (Amendment) Act 1977 (Vic):

(i) amended the Melbourne Wholesale Fruit and Vegetable Market Trust Act 1977 (Vic);

(ii) renamed that Act as the Melbourne Market Authority Act 1977 (Vic) (the "MMA Act") and established the Authority; and

(iii) provided that the Authority was to control, manage and promote the West Melbourne Market.

(g) On or about 1993, the Authority took over the Footscray Road site and has thereafter controlled, managed and promoted the West Melbourne Market.

(h) At all relevant times, the West Melbourne Market has been and remains the primary and most important location in Victoria for the wholesale of fruit and vegetables.

(a) a central trading complex comprised of stores and stands;

(ii) are leased by the Authority to store holders from which they conduct their wholesale businesses by displaying, storing, refrigerating and selling their produce to permitted buyers;

(iii) contain offices, cool rooms and pallet racking areas; and

(iv) include areas outside the front and the rear of the stores used by store holders for the display and despatch of their produce (ie the display/despatch areas);

(ii) rented from the Authority by wholesalers and store holders; and

(iii) used by wholesalers and store holders to display and sell their produce to permitted buyers;

(i) range in size from approximately 200 to 6,000 sqm;

(ii) are leased from the Authority by store holders, wholesalers and permitted buyers;

(iii) are used by store holders as part of their wholesale businesses to store, refrigerate, package, fumigate and ripen produce;

(ii) offices for the ninth Defendant and other businesses conducted by the ninth Defendant;

(vii) the storage of forklifts and other lifting vehicles;

(ix) the sale of gas for the forklifts and other machinery;

(f) loading and unloading areas for the movement of produce;

(g) access roads and paths used by trucks, forklifts andother moving equipment, cars and pedestrians;

(h) parking for cars, vans, rigid trucks and articulated vehicles used by:

(v) employees employed at the Footscray Rd site; and

(vi) a building housing the National Flower Centre.

**9 The First to Eighth Plaintiffs each conduct wholesale businesses at the West Melbourne Market by the use of store and warehouse facilities leased from the Authority.

10 The Ninth Defendant is an industry group (the "Association"). It is an incorporated association which has as its members persons who conduct business at the West Melbourne Market.

11 The Authority was established pursuant to the MMA Act. The MMA Act provides the establishment of the Authority, its objects, its functions and powers by sections 4-7, which are in the following terms:**

(1) There is established an Authority to be known as the Melbourne Market Authority.

(2) The Authority -

(a) is a body corporate with perpetual succession; and

(b) shall have a common seal; and

(c) may sue and be sued in its corporate name; and

(d) may acquire, hold and dispose of personal property; and

(e) may -

(i) with the approval of the Governor in Council and the consent of the Minister administering section 4 of the Crown Land (Reserves) Act 1978, purchase or acquire any Crown land; and

(ii) with the approval of the Minister, purchase or acquire any other real property; and

(iii) with the approval of the Minister, hold and dispose of real property.

(3) The Governor in Council may grant, on any terms and conditions that it thinks fit, to the Authority any Crown land purchased or acquired by the Authority under subsection (2)(e).

(4) The common seal of the Authority must be kept in such custody as the Authority directs and must not be used except as authorised by the Authority.

(5) All courts, judges and persons acting judicially must take judicial notice of the common seal of the Authority affixed to a document and until the contrary is proved must presume that it was duly affixed.

The objects of the Authority are -

(a) to provide a commercially viable wholesale facility for the efficient distribution of fresh produce; and

(b) to optimise returns on land and assets controlled and managed by the Authority; and

(c) to ensure a fair and competitive environment for the wholesale trading of produce.

The Authority has the following functions -

(a) to control, maintain and manage the Melbourne wholesale fruit and vegetable market and the market land;

(b) to promote the use of the facilities at the Melbourne wholesale fruit and vegetable market;

(c) to provide advice and information to the Minister on matters relating to the market and its use by industry and on industry related matters generally;

(d) to do all things necessary or convenient to enable the Authority to achieve its objects;

(e) to do all things the Authority is authorised or required to do by or under this or any other Act or law.

(1) Subject to this Act, the Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

(2) Without limiting the generality of subsection (1), the Authority may, subject to this Act -

(a) grant leases, tenancies, permits and licences of land forming part of, or of buildings or chattels on, the market land or other land purchased or acquired by the Authority subject to any terms and conditions and the payment of any fees that the Authority determines;

(b) enter into arrangements with other persons for the sale by the Authority on behalf of those persons of fruit, vegetables or cut flowers, including arrangements for the payment to the Authority of commission or other amounts;

(c) provide on the market land any buildings, premises, machinery or other equipment for the purposes of the Melbourne wholesale fruit and vegetable market.

(3) Despite section 4, the Authority is not required to obtain the approval of the Minister to the grant of a lease, tenancy, permit or licence under this section unless the grant is for a term that exceeds or may exceed 10 years.[1]

12 The Authority is also subject to the direction of the relevant Minister, as provided for in s 8of the MMA Act, which provides:

(1) The Authority is subject to-

(a) the general direction and control of the Minister; and

(b) any specific written directions given by the Minister.

(2) The Authority must provide the Minister with the information, reports and documents relating to its policies and activities that the Minister requests.[2]

13 Purportedly pursuant to the MMA Act the Authority has since its establishment undertaken the following activities:

(a) leased stores to store holders at the West Melbourne Market and has derived rent therefrom;

(b) leased warehouse space at the West Melbourne Market and has derived rent therefrom;

(c) leased office space and other space to the Association at the West Melbourne Market and has derived rent therefrom;

(d) generated other income (ie non-rental income) from activities at the West Melbourne Market including by:

(i) imposing a special registration fee for forklifts and motorised trolleys used at the West Melbourne market by store holders, warehouse lessees and others;

(aa) its quarterly Market Newsletter; and

(bb) its yearly business directory;

(e) provided a range of services at the West Melbourne Market including:

(i) the provision of security including the sale and management of over 8000 security cards;

(ii) the provision of cleaning services for the common areas;

(iii) the maintenance of emergency exit access, lights and fire protection;

(iv) the marketing of the West Melbourne market by a variety of means including (by way of example):

(aa) having a stand at the Melbourne International Flower and Garden Show;

(bb) the conduct of a yearly Retailer of the Year Award for both regional Victoria and metropolitan Melbourne;

(cc) the maintenance of a website as a resource to be used by the fresh produce industry, the education sector, florists and consumers;

(dd) the sponsorship of various functions including (by way of example) the Vegetable Growers Association National Vegetable Expo and the Ausveg National Vegetable Conference; and

(ee) the publication of a quarterly market newsletter and a yearly business directory.

14 The Epping Market is proposed to comprise the following elements:

(a) a central trading complex (made up of stores and stands);

(c) an office and other areas for the Association to conduct its businesses;

(iv) car parks for customers that are approved to buy from that market, among them, the customers of the store holders.

**15 In December 2005 the Authority informed all tenants of the West Melbourne Market, which included the store holders, that the proposed relocation to the Epping site was scheduled to occur in December 2010. Since that announcement, the Authority has offered lease terms for the stores and warehouses at the West Melbourne Market on terms that resulted in the expiration of those leases to coincide with the anticipated relocation of the wholesale fruit and vegetable market to the Epping site.

16 In meetings and discussions between members of the Association, the Government and the Authority, it appears that the great majority of the members preferred that the wholesale fruit and vegetable market remain at the 542 Footscray Road site and that it not be moved to the Epping site. This appears to remain the position to this day, although it is now generally accepted by store holders that the proposed move to the Epping site is inevitable.

17 On or about 10 February 2011, Bovis Lend Lease Pty Ltd, as the head construction contractor, commenced construction work for the central trading complex for the Epping Market at the Epping site.

18 On 20 July 2011 the Government, by its responsible Minister who was then Dr Napthine, Minister for Major Projects (the "Minister"), announced that it had completed its review of the relocation of the wholesale fruit and vegetable market to the Epping site and announced that it had determined to proceed with this project.

19 Extensive negotiations ensued between members of the Association, the Government and the Authority as to how the proposed relocation should be implemented. The negotiations focussed in particular on how the reallocation of business premises at the West Melbourne Market should be undertaken and how the rents payable in respect business premises sited in the Epping Market should be determined.

20 On or about 6 December 2012, the ballot was conducted for the purposes of allocating specific stores at the Epping Market to each of the Plaintiffs and the other store holders. As a result of the ballot, the Plaintiffs and the other store holders were allocated specific stores at the Epping Market.

21 Also on 6 December 2012, the Minister wrote to the store holders (inter alia) and provided them with a pack of information in respect of proposed future tenancies for the Epping site which included a draft standard lease dated 4 December 2012 and various documents provided by the Authority, including the Authority's "key terms store lease" document.

22 The Authority's "key terms store lease" document provided, amongst other things, for the following:**

(a) the rent for the first year of the initial term of the proposed lease would be set out in the lease;

(b) the rent would be increased - "to the greater of CPI and 4% on each anniversary of the commencement date...";

(c) as to outgoings, that the store holders were required to pay for:

(i) all services consumed or provided to the premises (e.g. gas, electricity, water etc) including those which the Authority elects to supply;

(ii) all rates, taxes and other outgoings which are specifically referable to the store; and

(iii) if the wholesaler elected to utilise Authority's central cooling plant or central heating plant, the cost of that service that Authority specifies from time to time;

(d) the term and the store holders' right to any further terms would be set out in the lease and that the store holders would be offered a range of terms, a minimum of three years, and increasing by half-yearly increments to a maximum of 15 years and the terms would be allocated on a first come, first served basis and would be subject to the principle that no more than 15% of the floor space of the central trading complex would expire in any financial year; and

(e) the store holders must comply with, and make sure that its employers, agents and contractors comply with:

(i) Authority's requirements in relation to the premises;

(ii) the by-laws as enacted or amended from time to time;

(iii) any rules, guidelines or policies issued by Authority in respect of entry to or occupation of the market land from time to time; and

(iv) the landlord's safety measures, environmental management plan and occupational health and safety plan.

23 In a public statement, issued on 13 December 2012 by the Minister, entitled "Rents & Charges for the New Epping Wholesale Market", the following things were said:

(a) the rents for the new Epping Market were to be made affordable and viable for tenants;

(b) the rents outlined in that statement may be reduced if the budgeted contingencies were not all required;

(c) the indicative new rents in 2012 prices for the Stores at $450 per sqm p.a. represented a 64.8% increase per sqm on the current rents;

(d) the rents for the stores at the Epping Market that had been set by the Authority and the Government had adopted a fair and reasonable approach to recover the debt component, meet interest payments and operating costs;

(e) in the months to follow, as project costs were firmed, rental information would be refined and the store holders kept informed.

24 On 19 December 2012 the Authority issued a circular to all leaseholders at the West Melbourne Market in which it advised that:

(a) the Authority had appointed Élan Property Group ("Élan") as its leasing agent;

(b) store leaseholders needed to meet with "Élan" to agree upon the lease terms and sign an intention to lease prior to signing an agreement for lease with the Authority; and

(c) a deadline of 5 pm on 21 February 2013 had been set by which registration of intent to sign an agreement for lease must be completed.

25 On 25 February 2013 the Minister issued a further public statement which advised that:

(a) the new Epping Market would become operational in 2014/2015 and when that occurs trading will cease at the West Melbourne Market, and in order to meet that program timeline it is imperative that store holders indicate their commitment to moving to the Epping site by executing their lease documentation;

(b) in view of the delay in providing final leasing documentation to store holders, it had been determined that an extension of time to complete the documentation would be required and the extension involved a two-stage process, namely:

(i) all eligible store holders were to register their intention to lease a store by 28 March 2013; and

(ii) all eligible store holders must execute their store lease on or before 29 April 2013;

(c) the store holders who did not register their intention to lease by 28 March 2013, and did not register their leases on or before 29 April 2013, would:

(ii) any unallocated stores would then be offered for lease by auction/tender process;

(d) final lease documentation would be issued to store holders by 4 March 2013;

(e) there would be no negotiations on final leases;

(f) the terms being offered to store holders were fair and reasonable;

(g) the store holders that signed the intention to lease form by 28 March 2013, and executed leases on or before the cut-off date, would be offered the following commercial benefits:

(i) a reduction in the annual rent escalation (currently set at 4%) to the higher of 2.5% or CPI after year four of the lease (up to a maximum 15 year lease);

(ii) the option to pay the cost of base fit out works (covering steel support structures for refrigeration, store ceilings and fire sprinklers) by amortising them over the length of the lease term (for a maximum of 30 years); and

(iii) for the store holders prepared to take leases of ten years or longer - a two month rent free period.

26 The Minister's statement of 25 February 2013 also stated, among other things, that the leasing timetable for the stores at the Epping Market had been revised and that:

(i) register an Intention to Lease by 28 March 2013; and

then they would lose their allocated store(s) at the Epping Market; and

(b) the incentives to finalise lease documents would not be extended or negotiated.

27 On or about 1 March 2013 the Authority forwarded to the store holders a package of documents which included documents titled:

(a) "Epping Market Store Leasing Process: Steps and Timeline"; and

(b) "Melbourne Market Relocation Project/Tenancy Fit Out Guide version current as of 15 February 2013".

28 In the period 12 March to 14 March 2013, the Authority provided to the store holders a document entitled "Intention to Lease", which was a form which stated that:

(a) the maximum rental for stores as at 30 June 2014 at the Epping market would be $478.12; and

(b) the figure of $478.12 represented $450.00 at 13 December 2012 escalated by 4.00% p.a to 30 June 2014.

29 On 28 March 2013 the solicitors acting for the Plaintiffs, Wilmoth Field Warne ("Wilmoth Field Warne"), who also acted on behalf of 92 store holders at the West Melbourne Market (together called the "store holders"), lodged their Intention to Lease forms with the Authority, along with which the following information was included:

(a) the preferred lease terms for each of the 92 store holders for whom it acted; and

(b) the 92 store holders for whom it acted had genuine concerns about the terms of their proposed relocation and the leasing documents provided by the Authority.

**30 On 12 April 2013 Wilmoth Field Warne also lodged with the Authority a further Intention to Lease form on behalf of Ms P Wong (who is also included in the designation "store holders"), containing similar information in respect of Ms Wong's position.

31 On 16 April 2013 the present Minister for Major Projects, Mr Hodgett, issued a statement in relation to the proposed relocation of the Fruit and Vegetable Market to the Epping site, which informed that:**

(a) maximum rent prices will be reduced subject to the new Epping Market opening on schedule;

(b) store holders at the Epping Market would be offered a reduction in the maximum rent for stores at that market from $478.12 per sqm p.a. to $392 per sqm p.a.; and

(c) store holders at the Epping Market would only be entitled to the reduction set out in paragraph 82(b) above, if:

(i) the lease documentation was signed by 5 pm on 31 May 2013;

(ii) the requirements for taking physical possession of those store holders' stores is met by the Epping market opening date (including fit out completion in accordance with the fit out guidelines, obtaining a certificate of occupancy and obtaining an authority to trade); and

(iii) at least 50% of the net lettable area of the stores is leased by the 5 pm 31 May 2013 deadline.

32 By a letter dated 19 April 2013, the Department of Business and Innovation (now known as the Department of State Development, Business and Innovation) ("DBI") sent a letter to Wilmoth Field Warne which stated that:

(a) As has previously been advised to your clients, the tenure of leases are to be structured on the basis that only 15 per cent of store leases mature in any given twelve month period on a "first come, first served" basis. Each of your clients may therefore be required to adjust the tenure of their leases from that which they originally sought; and

(b) if a store holder did not execute the Authority's agreement for lease and return it by 31 May 2013, then they would lose their allocation of stores at the Epping market.

33 On 6 May 2013 the Authority sent a letter to each of the store holders that had sent their Intention to Lease documents to the Authority which stated that:

You will note that the Lease Term has been left blank in your lease ... As you were among the last to submit your Instruction to Lease form, your preferred date cannot be accommodated.

If you wish to accept the documents, you will need to determine another Lease Term. As the available Lease Terms are filing [sic] up fast and will continue to be determined on a "first come first served" basis, we encourage you to contact us as soon as possible please to check the availability of any given Lease Term before your appointment.

34 On 7 May 2013 the Authority provided an update to the store holders that had sent their Intention to Lease documents to the Authority which advised that:

(a) some of the store holders would need to change their preferred lease term (length of lease); and

(b) it was important that store holders contact the Authority as soon as possible to check the availability of any given lease term before attending an appointment with the Authority.

35 On 8 May 2013 Wilmoth Field Warne sent a letter to the Authority and to DBI which stated amongst other things:

(a) It acted on behalf of the 93 store holders that had registered Intention to Lease documents with the Authority;

(b) On four prior occasions, it had stated that it acted for the 93 store holders;

(c) Its clients were store holders who trade in fruit, vegetables and produce at the West Melbourne market who had elected to be represented by that firm in connection with complex commercial and legal issues arising out of the compulsory relocation of the West Melbourne Market to Epping Market, to provide them with advice and to protect their interests;

(ii) desist from communicating directly with the 93 store holders about those matters -

which had caused and was continuing to cause considerable concern and anxiety to those store holders; and

(e) It requested the Authority to communicate with that firm about the relocation matters and that it cease and desist from communicating about those matters directly with them.

36 On 10 May 2013 the Authority published an update entitled the "Melbourne Market Relocation Update" which said:

(a) the Authority proposed to continue to allocate the remaining space on a "first come, first served" basis in reliance on the revised preferred initial lease terms released;

(b) the Authority proposed to allocate to those store holders who lodged Intention to Lease forms prior to 28 March 2013 on the basis of their preferred lease term as they were spread across a number of years;

(c) the Authority was only prepared to offer lease terms on the basis that leases for a combined area of more than 15% of the trading floor complex cannot expire in any given financial year;

(d) a number of store holders lodged their Intention to Lease forms at the same time on 28 March 2013 and as a result, if their nominated lease terms were accepted, the 15% requirement would have been exceeded in a number of years;

(e) as a result of the matters in paragraph (d) above, all store holders who lodged Intention to Lease forms on 28 March 2013 were to notify the Authority as quickly as possible a revised preferred initial lease term; and

(f) the Authority proposed to continue to accommodate store holders' preferred lease terms in accordance with the 15% requirement and reserved its right to allocate lease terms if the 15% requirement was exceeded in any given financial year.

37 On 10 May 2013 the Authority sent an SMS text to all of the 93 store holders who had lodged their Intention to Lease documents on 28 March 2013 (and in the case of Ms Wong, on 12 April 2013). The text message said:

All F&V STORE HOLDERS who lodged Instructions to Lease forms on 28 March should notify the State/[Authority] as quickly as possible a preferred lease term. The State proposes to allocate the remaining space on a first come, first served basis. For more information and details of lease terms available click here http://bit.ly/YxqpW6, visit the [Authority] website or call Mary Baker on 9651 8110.

**38 During the period 10 May to 13 May 2013 officers of DBI contacted the store holders about their preferred initial terms for their leases.

39 The leases for stores at the West Melbourne Market are all due to expire on 31 July 2014.

40 On 13 May 2013 the Minister for Major Projects, Mr Hodgett stated at a meeting on 13 May 2013 with representatives of the Flower Advisory Committee that the Epping Market was due to commence later than 2015.**

41 This is an application by the Plaintiffs for an interim injunction and interim orders as follows:

1. Until 5:00 pm 18 June 2013, or further order, the Defendant (the "Authority") whether by itself, its servants and/or agents or otherwise howsoever be restrained from:

(b) otherwise disentitling a Store holder from their allocation;

(c) reallocating any store holders' allocation to any other person;

(d) informing or stating to any Store holder that if they do not comply with a request then the Authority will remove their allocation;

(e) informing or stating to any store holder that if they do not comply with a request then the Authority will otherwise disentitle them from their allocation -

1. Until 5:00 pm 18 June 2013, or further order, the Authority whether by itself, its servants and/or agents or otherwise howsoever be restrained from communicating directly with any of the store holders who the Authority has been informed are being represented by Wilmoth Field Warne, Solicitors, in relation to the relocation of the Melbourne Wholesale Fruit and Vegetable Market from West Melbourne to Epping.
2. By 5:00 pm 18 June 2013 the Authority is to provide an assurance in writing to the store holders that:

(a) the glycol to be used in the secondary cooling system at the Epping Market is food safe;

(b) the support structure proposed to be installed in the stores at the Epping Market, upon which the tertiary refrigeration equipment is to be mounted, will safely bear the weight of the refrigeration equipment for the tertiary cooling system; and

(c) the fire sprinkler adjustment and extension to pass through the thermal cool room ceiling, to be installed in the stores at the Epping Market, will be fit and suitable for its purpose.

1. By 5:00 pm 18 June 2013 the Authority is to provide a survey prepared by a qualified surveyor, to each store holder, of the store which they have been specifically allocated at the Epping market so as to provide the precise area of the store.
2. By 5:00 pm 18 June 2013 the Authority is to provide detailed information and (where appropriate) detailed drawings of:

(a) the proposed steel support structure and beam(s) upon which the tertiary refrigeration system is to be mounted in each store;

(b) the proposed method of installation of the steel support structure and beam(s) upon which the tertiary refrigeration system is to be mounted in each store;

(c) the maximum load of the proposed steel structure and beam(s) upon which the tertiary refrigeration system is to be mounted to be installed in each store;

(d) the secondary cooling system which the Authority proposes to operate as part of the central cooling system;

(e) the glycol proposed to be used in the secondary cooling system which the Authority proposes to operate as part of the central cooling system;

(h) the estimated fit out costs and other costs of obtaining warehouse space;

(i) the location, size and type of the warehousing to be constructed;

(j) the method of allocation of the warehousing to be constructed;

(k) the proposed date for the completion of construction of the warehousing; and

(l) the proposed method of allocation of the car/truck customer parking -

1. By 5:00 pm 18 June 2013 the Authority is to provide full details of all rates, taxes, charges, fees, costs to be paid, borne or reimbursed by store holders at the Epping Market.

7. By 5:00 pm 18 June 2013 the Authority is to provide a copy of:

(a) the Design and Construction Contract between the Authority and Bovis Lend Lease Pty Ltd dated 17 March 2010 (as varied) limited to that part of the document which will permit the store holders (whether by themselves or by experts retained by them or on their behalf) to be able to determine whether the Landlord's Works, (as defined in the draft Agreement to Lease and Standard Store Lease documents provided by the Authority dated 6 May 2013), have been properly carried out); and

(b) the Head-Lease entered into between the Secretary to the Department of Business and Innovation and the Authority dated 4 April 2013.

1. By 5:00 pm 18 June 2013 the Authority is to provide full details of the rental bonds, security bonds, guarantees and any other security which the Authority requires store holders at the Epping Market to provide.

9. By 5:00 pm 18 June 2013 the Authority is to provide full details of:

(a) the overall cost of the Landlord's Fitout Works Items; and

(b) the term and rate applied to amortise the cost of the Landlord Fitout Works Items -referred to in the draft Agreement to Lease and Standard Store Lease documents provided by the Authority dated 6 May 2013.

10. Such further or other orders as the Court may deem appropriate.

Applicable Legal Principles as to Injunctive Relief

**42 I accept the submissions of the Authority, set out below, as to the principles governing the circumstances in which the Court will grant interim or interlocutory injunctions. These principles are well established, but for present purposes bear repeating.

43 The granting of injunctive relief is discretionary and the Court must be satisfied that:**

(a) there is a serious question to be tried in the sense that the plaintiff must show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending trial;

(b) if there is no injunction but the plaintiff claim is ultimately vindicated, the plaintiff will have suffered irreparable harm for which damages will not be an adequate remedy; and

(c) the balance of convenience must favour the grant of the injunction.

44 In addressing the first criterion, in Australian Broadcasting Corporation v O'Neill[3] the High Court emphasised the need for the Court to carefully consider the nature and strength of the Plaintiffs' case. In that case, Gummow and Hayne JJ said that:

There is then no objection to the use of the phrase "serious question" if it is understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham, depends upon the considerations emphasised in Beecham. [4]

45 In addressing Beecham Group Ltd v Bristol Laboratories Pty Ltd[5], their Honours in Australian Broadcasting Corporation v O'Neill explained the reference to the need for the plaintiff to establish a "prima facie" case as follows:

By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:

How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.[6]

**46 As is further detailed below, in this case, the nature of the claims advanced and the relief sought are, as was the case in Australian Broadcasting Corporation v O'Neill, [7] of central importance.

47 While typically set out as separate requirements, the High Court confirmed that these organising principles are to be considered together and inform one another. See: Tymbook Pty Ltd v Victoria; Bradto Pty Ltd v Victoria (Bradto).[8]

48 For example, where a plaintiff has an apparently very weak claim, the balance of convenience must be stronger so that, overall, the lesser risk of injustice lies in the granting of the injunction.[9]

49 As Woodward J said (Smithers and Sweeney JJ agreeing) in Bullock v Federated Furnishing Trades Society of Australasia:**

[A]n apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises a 'serious question to be tried') may still attract interlocutory relief if there is a marked balance of convenience in favour of it. [10]

**50 As to the need to show a prima facie case, while the plaintiff does not need to satisfy the Court that it is probable (more likely than not) that the plaintiff will succeed at trial, it is necessary to show that there are sufficient prospects of success so as to justify the preservation of the status quo.[11]

51 Standing back and assessing the whole, the Court will be concerned to adopt the course which carries the "lesser risk of injustice" if it should turn out to have been wrong.[12] The consequences of any injunction, including the impact of any injunction on the defendant and third persons, will also be relevant in the exercise of discretion, as will delay in the making of the application. Where (as here) the injunctive relief sought on an interim or interlocutory basis is substantially the relief sought in the proceeding, the Court may pay particular attention to the prospects of success. See: Hartleys Ltd v Martin;[13] Brilliant Lighting (Aust) Pty Ltd v Baillieu.[14]

52 The same principles govern the grant of mandatory and prohibitory injunctions and interim and interlocutory injunctions.[15]**

**53 This proceeding is bought by way of a group proceeding pursuant to Part 4A of the Supreme Court Act 1986 (Vic).

54 There are more than seven group members. The group members are the 108 (approximately) store holders at the West Melbourne Market. They comprise:**

(a) the 93 store holders which includes each of the Plaintiffs; and

(b) a small number of other store holders (not among the 93 store holders).

55 The group members to whom this proceeding relates are:

(a) the 93 store holders including the Plaintiffs; and

who, it is claimed, will suffer loss and damage as a result of the alleged conduct of the Authority.

**56 The claims of the Plaintiffs and the group members are set out herein and the relief sought by the Plaintiffs and the group members are set out in detail below.

57 The claims by the Plaintiffs, the 93 store holders and the group members as a whole relate to the conduct of the Authority in connection with the relocation of the West Melbourne Market to the Epping Market.

58 The central claims made in the Amended Statement of Claim give rise to common questions of law or fact set out below.

(a) removal by the Authority of the store holders' allocation for stores at the Epping Market; or

(b) the disentitlement by the Authority of the store holders' allocation for stores at the Epping Market -

constitutes unconscionable conduct by the Authority, in trade or commerce, contrary to the Australian Consumer Law (the "ACL"), as it applies in the federal jurisdiction and also within the Victorian jurisdiction.

60 The Australian Consumer Law text consists of-

(a) Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth; and

(b) the regulations under section 139G of that Act.

**61 The ACL was adopted in Victoria by the Australian Consumer Law and Fair Trading Act 2012 which commenced operation in Victoria on 1 December 2012 (the "Vic ACL").

(a) removes the store holders' allocation for a store at the Epping Market; and/or

(b) disentitles the store holders from their allocation of a store at the Epping Market -

63 Whether the conduct of the Authority in threatening to:

(a) remove the store holders' allocation for stores at the Epping Market; or

(b) disentitle the store holders from having an allocation of a store at the Epping Market -

constitutes unconscionable conduct by the Authority in trade or commerce, contrary to the ACL or the Vic ACL.

**64 Whether the Authority has otherwise engaged in unconscionable conduct against the Plaintiffs and the store holders contrary to the ACL or the Vic ACL.

65 Whether the Authority has engaged in misleading or deceptive conduct or conduct likely to mislead or deceive.**

**66 The Plaintiffs allege that conduct, which is described in detail in 251 paragraphs in the Amended Statement of Claim, amounts to unconscionable conduct in trade and commerce on the part of the Authority as to the proposed relocation of the store holders from the West Melbourne Market to the Epping Market, giving rise to a contravention of s 21 of ACL and the Vic ACL.

67 Insofar as the proceeding is principally founded on allegations of unconscionable conduct on the part of the Authority, the Plaintiffs rely upon both the ACL and the Vic ACL.

68 Further, it is alleged in paragraphs 210-221 of the Statement of Claim that the Authority engaged in conduct that was misleading or deceptive or was likely to mislead and deceive in contravention of the ACL in relation to a representation alleged to have been made in the letter from the Authority to store holders dated 6 May 2013 as to the requirement for the store holders to provide a bank guarantee or bond for rent.**

The Ballot Allocation - Whether any Legal Right Created

69 As McMeekin J said in Devine v Emu Park Historical Museum Society Inc,[16] the High Court has made plain in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[17] and reaffirmed in Australian Broadcasting Corporation v O'Neill[18] that:

[W]here an interlocutory injunction is sought, it is necessary to identify the legal (including statutory) or equitable rights which are to be determined at the trial and in respect of which final relief is sought. [19]

**70 As earlier noted, on or about 6 December 2012, a ballot was conducted for the purposes of allocating specific stores at the Epping Market to each of the Plaintiffs and the other store holders. As a result of the ballot, the Plaintiffs and the other store holders were allocated specific stores at the Epping Market.

71 As also earlier noted, by a letter dated 19 April 2013, the DBI sent a letter to the Plaintiffs' solicitors which stated (inter alia) that if a store holder did not execute the Authority's agreement for lease and return it by 31 May 2013, then they would lose their allocation of stores at the Epping Market.

72 The conduct reflected in these two steps is central to the present application.

73 The first in the chain of critical documents relating to the ballot is the Minister's Statement dated 29 July 2012 which was provided to the Plaintiffs. For present purposes, relevant extracts of the statement were as follows:**

MINISTER'S STATEMENT

ARRANGEMENTS TO APPLY FOR ALLOCATION OF FRUIT AND VEGETABLE STORES IN THE NEW WHOLESALE MARKET AT EPPING

...

After having considered all the comments provided, I have made the following decisions:

Allocation of Fruit and Vegetable Stores

There will be three sizes of store at the new market:

• small stores with an average internal floor area of approximately 56m2;
• medium stores with an average internal floor area of approximately 112m2; and
• large stores with an average internal floor area of approximately 193m2.

Basis for store allocation

Store allocations will only be made to business currently holding leases in the market.

The following store allocation rules will apply so as to ensure that a store as close as possible in size to current holdings can be offered to all leaseholders:

...

Determining the location of businesses

The store location of each wholesale fruit and vegetable business will be determined by a ballot for the allocation of stores across the entire market. The ballot will determine the order in which leaseholders will be able to select a store location.

...

The following rules will apply to the ballots:

...

• once selection has been made by a leaseholder it can only be changed if a transfer is negotiated with another leaseholder allocated store space at the market and both leaseholders notify the AUTHORITY in writing of this agreement.

If you do not participate in each stage of the ballot or the selection process for a specific store, the space allocated offered to you will be forfeited and will become the subject of an open competitive tender to be conducted by the Authority.

A trading period of two months will apply after the ballot in order to settle all leaseholder store locations before Agreements for Leases are signed.

At the end of the allocation process (including trading period), any unallocated space will be subject to an open competitive tender process.

Next steps

The Authority will write to each eligible leaseholder:

• making an offer of store space at Epping;
• confirming the process for calculating the allocation of store space at the new market;
• specifying the store space to be offered to the leaseholder as a result of the application of those allocation rules;
• indicating the conditions which must be satisfied by leaseholders in order to accept an offer of space at the new market; and
• seeking comment on the preferred way of treating losses and gains of store space by leaseholders.

The formal offers of tenancies over specific stores at the new market will be contained in leasing documentation to be sent to leaseholders after the trading period has concluded.

74 The next document in the series is a circular from the Authority to all store holders of the West Melbourne Market. For present purposes, relevant extracts of the circular were as follows:

TO: All Store Leaseholders at the Melbourne Markets

As you are aware, the ballots for fruit and vegetable stores will be held on Thursday 6 December 2012 in the National Flower Centre (NFC) commencing at 10.30 am sharp.

...

All registered store lease holders please note, you must be present and signed in at the time of your ballot. As noted in attached extract from the Minister's statement dated 29 July 2012, "if you do not participate in each stage of the ballot or selection process for a specific store, the space allocation offered to you will be forfeited".

...

• once a selection has been made by a leaseholder it can only be changed if a transfer is negotiated with another leaseholder allocated store space at the market and both leaseholders notify the Authority in writing of this agreement.

If you do not participate in each stage of the ballot or the selection process for a specific store, the space allocation offered to you will be forfeited and will become the subject of an open competitive tender to be conducted by the Authority.

A trading period of two months will apply after the ballot in order to settle all leaseholder store locations before Agreements for Leases are signed. At the end of the allocation process (including the trading period), any unallocated space will be subject to an open competitive process.

75 Then followed a letter from the Minister at the time dated 6 December 2012 addressed to each of the store holders who were successful in gaining an allocation of premises at the new Epping Market through the ballot. The letter was in standard form and relevantly provided:

Congratulations on selecting store number ... in the new wholesale market at Epping.

Your participation in the ballot today is a key step in your transition to the new market.

...

The next step in your move to Epping is the execution of the standard Agreement to Lease and Lease Agreement by 28 February 2013.

The attached package contains the following documents:

• Summary of key commercial terms of standard Agreement to Lease and Store Lease;
• draft standard Agreement to Lease;
• draft standard Lease;
• draft fit-out guidelines;
• relevant floor plans specific to your selected store;
• Leasing timetable.

...

THE HON DR DENIS NAPTHINE MP

Minister for Major Projects.

76 Included in the package sent with the Minister's letter of 6 December 2012 was the "Leasing Timetable", which relevantly said:

This document sets out the process for finalising your leasing documentation for the Epping store space you have selected through the ballot process.

...

Élan Property is the Authority's leasing agent.

...

The copies of the Agreement for Lease and Lease included in this ballot pack are in draft form. The State and the Authority anticipate that final versions of these standard documents will be released to you by 16 January 2013.

...

The Agreement for Lease and Lease must be executed and received by Élan Property by 5 pm on 28 February 2013. After this date, the Authority will tender any un-signed stores on the open market.

...

You will need to register your intention to sign the Agreement for Lease and Lease and your preferred lease term with Élan Property.

...

The Instruction to Lease form can be submitted to Élan Property from 14 December 2012, but must be received by 5 pm on 21 February 2013. Execution copies of the leasing documents will be prepared on the basis of the information provided in the form.

...

You can trade your allocation of space for Epping prior to signing an Agreement for Lease. You will need to submit a Notice to Transfer Allocation to Élan Property, which will in turn be provided to the Authority for approval. The Notice to Transfer Allocation will be available from Élan Property. Where the transferee/buyer is not currently a tenant of the Authority, the usual information for transfers of leases will need to be provided (ie, information as to business experience and financial standing). The rules regarding gain of space will apply to the transfer.

If the transferee/buyer is to sign the Agreement for Lease, the transfer must be completed prior to 5 pm on 21 February 2012 so as to enable the appropriate Instruction to Lease to be submitted.

...

Once you have selected a position for your allocation in the ballot and received your confirmation of allocation, you can trade your allocation of space at Epping separately from your current lease holding.

77 It is to be noted that the Leasing Timetable stipulated that:

The Agreement for Lease and Lease must be executed and received by Élan Property by 5 pm on 28 February 2013. After this date, the Authority will tender any un-signed stores on the open market.

**78 It is to be further noted that, both pursuant to the Minister's Statement of 29 July 2012 and the Market Circular of the Authority dated 4 December 2012, once a selection was made by a leaseholder, it could be changed if a transfer was negotiated with another leaseholder who had been allocated store space at the Epping Market and both leaseholders notified the Authority in writing of the agreement. In other words, store holders who achieved a successful allocation were permitted to trade their space allocation with other store holders who held leases at the West Melbourne Market.

79 On their face, the allocations effected pursuant to the ballot process were not expressed to be contingent on the holder of the allocation undertaking any further steps. For present purposes, it is therefore at least arguable that the later prescribed steps, such as the requirement to register an intention to sign an Agreement for Lease and Lease by providing an Instruction to Lease to the Authority's agents by 21 February 2013 and the provision of an executed Agreement for Lease and Lease by 28 February 2013, did not affect the rights conferred by the ballot allocation process.

80 For present purposes, I am satisfied that there is a triable issue that the allocation of specific stores at the Epping Market to each of the Plaintiffs, together with an albeit limited right to trade in those allocations with another leaseholder who has been allocated store space at the Epping Market, conferred proprietary rights on each of them in relation to the specific stores at the Epping Market which were the subject of the allocation, and whether this conferred a sufficient legal right to protect.

81 The precise nature of the proprietary rights conferred and the duration of those rights will remain issues for further determination, either on the anticipated interlocutory application or at trial.**

82 Mr Roach, the Chief Executive Officer of the Ninth Plaintiff, swore in his affidavit that:

If the stores allocated at the Epping Market to the store holders were to no longer be allocated to them and/or were to be reallocated to another person by national tender, the store holders would not be able to conduct their wholesale businesses. This is because there is no other location where they could continue to conduct their businesses. In this way, the wholesalers would lose the wholesale businesses they are presently conducting at the West Melbourne Market.

**83 I infer from this evidence that the Authority in effect is the only provider in the metropolitan area of Melbourne of wholesale fruit and vegetable market premises from which a wholesale fruit and vegetable business of the kind operated by the Plaintiffs can be conducted. In summary, there is no other place in Metropolitan Melbourne available for the Plaintiffs to conduct their businesses, other than at the premises provided by the Authority.

84 Although under the MMA Act the Authority is not authorised to conduct a monopoly facility, and is not empowered to prevent any other person from establishing a wholesale fruit and vegetable market in metropolitan Melbourne, or indeed anywhere else in Victoria, the commercial reality is that, on the evidence of Mr Roach, no such other facility has been established, or indeed is in contemplation, other than the Authority's facility in the course of development at the Epping site.

85 Whether this is styled a "monopoly" which operates de facto in favour of the Authority over such premises is not to the point.

86 However, in my opinion, the evidence of Mr Roach to which I have referred, which was not the subject of challenge, provides an important element of the context in which the question of alleged unconscionable conduct is the be determined at this point in the proceeding.

87 In particular, the de facto monopoly as I have described it, is directly relevant to the following non-exhaustive elements of unconscionable conduct found in s 22(2) of the ACL to which the court may have regard, namely:**

(a) the relative strengths of the bargaining positions of the supplier and the business consumer; and

...

(e) the amount for which, and the circumstances under which, the business consumer could have acquired identical or equivalent goods or services from a person other than the supplier;

**88 Pursuant to s 4(2) of the MMA Act, the Authority is a body corporate.

1. Unconscionable conduct in connection with goods or services

(1) A person must not, in trade or commerce, in connection with:

(a) the supply or possible supply of goods or services to a person (other than a listed public company); or

(b) the acquisition or possible acquisition of goods or services from a person (other than a listed public company);

engage in conduct that is, in all the circumstances, unconscionable. [20]

90 The Plaintiffs in the present application put on evidence that, at all relevant times, the Authority has:

(a) leased stores to store holders at the West Melbourne Market and has derived rent therefrom;

(b) leased warehouse space at the West Melbourne Market and has derived rent therefrom;

(c) leased office space and other space to FSL at the West Melbourne market and has derived rent therefrom;

(d) generated other income (ie non-rental income) from activities at the West Melbourne Market including by:

• (i) imposing a special registration fee for forklifts and motorised trolleys used at the West Melbourne Market by store holders, warehouse lessees and others;

(ii) selling advertising space in:

• (ab) its quarterly Market Newsletter; and

• (bb) its yearly business directory;

(e) provided a range of services at the West Melbourne Market including:

• (i) the provision of security including the sale and management of over 8000 security cards;
• (ii) the provision of cleaning services for the common areas;
• (iii) the maintenance of emergency exit access, lights and fire protection;
• (iv) the marketing of the West Melbourne Market by a variety of means including (by way of example):
  • (aa) having a stand at the Melbourne International Flower and Garden Show;
  • (bb) the conduct of a yearly Retailer of the Year Award for both regional Victoria and metropolitan Melbourne;
  • (cc) the maintenance of a website as a resource to be used by the fresh produce industry, the education sector, florists and consumers;
  • (dd) the sponsorship of various functions including (by way of example) the Vegetable Growers Association National Vegetable Expo and the Ausveg National Vegetable Conference; and
  • (ee) the publication of a quarterly market newsletter and a yearly business directory.

**91 The powers conferred on the Authority pursuant to s 7 of the MMA Act are consistent with the Authority pursuing these activities.[21]

92 There was also evidence that the Authority employs a Chief Executive Officer and approximately 36 full-time employees, and has offices at the West Melbourne Market.

93 As to financial evidence, the turnover state by the Authority for the West Melbourne Market is in the order of $1.5 billion. The Authority has reported in its annual report for 2001/2001 that in the financial year ended 30 June 2012, it generated transactional revenue exceeding $24 million against which it incurred transaction expenses of more than $166 million.

94 However, the focus must be on the conduct in question, and not upon the range of activities in which the corporation is engaged. See: Hearn v O'Rourke.[22]

95 It was submitted on behalf of the Authority that it did not engage in any of the relevant conduct in "trade or commerce". However, in the context of the present application, I do not accept this submission.

96 I am satisfied for present purposes that the conduct complained of by the Plaintiffs took place in the context of the Authority engaging in activity which was of a trading or commercial character, involving the supply or possible supply of market services to the Plaintiffs or the acquisition or the possible acquisition of such services by them.**

Whether Conduct of the Authority or the Minister

**97 It was submitted on behalf of the Authority that the conduct in issue was not undertaken by the Authority but by the relevant Minister, who is not a party to the proceeding.

98 In this regard, s 8 of the MMA Act was relied upon insofar as it provides that the Authority is subject to the generals direction and control of the Minister and any specific written directions given by the Minister.

99 However, s 232 of the ACL proves for what was previously s 75B of the Trade Practices Act 1974, in the following provision:**

(1) A court may grant an injunction, in such terms as the court considers appropriate, if the court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:

(a) a contravention of a provision of Chapter 2, 3 or 4; or

(b) attempting to contravene such a provision; or

(c) aiding, abetting, counselling or procuring a person to contravene such a provision; or

(d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision; or

(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or

(f) conspiring with others to contravene such a provision. [23]

**100 Chapter 2 of the ACL includes the unconscionable conduct provisions, namely s 21 and s 22 within the general protections provided for in the chapter.[24]

101 At the very least, there is evidence that the Authority was either directly or indirectly, knowingly concerned in, or party to, the contraventions alleged by the Plaintiffs.

102 Although this allegation has not been included in the Amended Statement of Claim, it was pressed in the oral application before me.

103 For present purposes, the submission on this issue made on behalf of the Authority has no substance.**

**104 It was further submitted by the Authority, that the conduct in issue was not justiciable, because it was the product of political decisions made by the Minister which are not amenable to review by the courts, applying principles founded on the separation of powers.

105 The question as to what is justiciable or not justiciable in this context is a "slippery concept". The question was touched upon in Thomas v Mowbray,[25] where Gummow and Crennan JJ observed:**

"Non-justiciable" is a slippery term of indeterminate reference. It may be used with respect to Ch III of the Constitution in identifying the absence of the constitutional competence of this Court to restrain or otherwise intervene in some of the activities entrusted to the Parliament by Ch I and the Executive by Ch II. The special position accorded in R v Richards; Ex parte Fitzpatrick and Browne to the privileges of the Senate and the House of Representatives established by s 49 of the Constitution is one example. Another is the holding in R v Governor (SA) that mandamus cannot lie to compel exercise by State Governors of powers conferred by the Constitution, specifically with respect to Senate elections.

The term "non-justiciable" may be applied in a more particular sense. Even if the plaintiff has standing in respect of the controversy sought to be agitated in a Ch III court, nevertheless there will be no "matter" if determination of the controversy would require adjudication of obligations and undertakings which depend entirely on political sanctions and understandings. Examples are agreements and understandings between governments in the Australian federation and between Australia and foreign governments.

It is not for an issuing court to enter upon any dispute as to the assessment made by the executive and legislative branches of government of the "terrorist threat" to the safety of the public before the enactment of the 2002 Act, the 2003 Act and the 2005 Act. But to the extent that this assessment is reflected in the terms of legislation, here Div 104 of the Code, and questions of the interpretation and application of that law arise in the exercise of jurisdiction by an issuing court, no violence is done to Ch III of the Constitution. The issuing court is concerned with a "matter" arising under a law which was preceded by a political assessment, but is not itself making or challenging that assessment.[26]

**106 As to whether a decision is the product of a political process, and therefore is not justiciable, or whether it is part of an administrative process, even if designed to give effect to a political decision, in which case it may well be justiciable, is a question of degree in each case. For example, a decision to relocate the wholesale fruit and vegetable market from the West Melbourne site to the Epping site, is likely to be regarded as a political decision. At the other end of the scale is a decision to use a particular chemical as the coolant in the cooling system to service the stores in the new market, which is plainly administrative.

107 In this case, I am of the view that it is clearly arguable that the decision to require the Agreement for Lease and Lease to be executed by the store holders who have been allocated space at the Epping Market, and received by the agents for the Authority by 31 May 2013, failing which the Authority will tender any un-signed stores on the open market, is a decision of an administrative character. The decision was made in aid of implementation of the policy to provide an opportunity for the existing store holders at the West Melbourne Market to be relocated at the Epping Market.

108 The controversy surrounding this decision which calls for adjudication, would not, at first glance, appear to require adjudication of obligations and undertakings which depend entirely on political sanctions and understandings, or which have their source in any decision which is of purely a political nature. Rather, it appears to be an administrative decision made in the course of managing a broader policy.

109 For these reasons, I am of the view that for present purposes, the proceeding instituted by the Plaintiffs could not be regarded as non-justiciable by this Court.**

**110 The claims of the Plaintiffs are founded principally upon the cause of action provided for in s 21 of the ACL.[27] This provides for what may be described as "statutory unconscionable conduct" which may provide a basis for relief. This is to be distinguished from unconscionable conduct founded on the general law.

1. Unconscionable conduct in connection with goods or services

(1) A person must not, in trade or commerce, in connection with:

(a) the supply or possible supply of goods or services to a person (other than a listed public company); or

(b) the acquisition or possible acquisition of goods or services from a person (other than a listed public company);

engage in conduct that is, in all the circumstances, unconscionable.

(2) This section does not apply to conduct that is engaged in only because the person engaging in the conduct:

(a) institutes legal proceedings in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition; or

(b) refers to arbitration a dispute or claim in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition.

(3) For the purpose of determining whether a person has contravened subsection (1):

(a) the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and

(b) the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.

(4) It is the intention of the Parliament that:

(a) this section is not limited by the unwritten law relating to unconscionable conduct; and

(b) this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and

(c) in considering whether conduct to which a contract relates is unconscionable, a court's consideration of the contract may include consideration of:

(i) the terms of the contract; and

(ii) the manner in which and the extent to which the contract is carried out;

and is not limited to consideration of the circumstances relating to formation of the contract. [28]

112 The matters to which the Court may have regard to for the purposes of s 21(1) of the ACL are provided for in s 22, as follows:

1. Matters the court may have regard to for the purposes of section 21

(1) Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier ) has contravened section 21 in connection with the supply or possible supply of goods or services to a person (the customer ), the court may have regard to:

(a) the relative strengths of the bargaining positions of the supplier and the customer; and

(b) whether, as a result of conduct engaged in by the supplier, the customer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and

(c) whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services; and

(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer or a person acting on behalf of the customer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and

(e) the amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier; and

(f) the extent to which the supplier's conduct towards the customer was consistent with the supplier's conduct in similar transactions between the supplier and other like customers; and

(g) the requirements of any applicable industry code; and

(h) the requirements of any other industry code, if the customer acted on the reasonable belief that the supplier would comply with that code; and

(i) the extent to which the supplier unreasonably failed to disclose to the customer:

(i) any intended conduct of the supplier that might affect the interests of the customer; and

(ii) any risks to the customer arising from the supplier's intended conduct (being risks that the supplier should have foreseen would not be apparent to the customer); and

(j) if there is a contract between the supplier and the customer for the supply of the goods or services:

(i) the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the customer; and

(ii) the terms and conditions of the contract; and

(iii) the conduct of the supplier and the customer in complying with the terms and conditions of the contract; and

(iv) any conduct that the supplier or the customer engaged in, in connection with their commercial relationship, after they entered into the contract; and

(k) without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the customer for the supply of the goods or services; and

(l) the extent to which the supplier and the customer acted in good faith.

(2) Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the acquirer ) has contravened section 21 in connection with the acquisition or possible acquisition of goods or services from a person (the supplier ), the court may have regard to:

(a) the relative strengths of the bargaining positions of the acquirer and the supplier; and

(b) whether, as a result of conduct engaged in by the acquirer, the supplier was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the acquirer; and

(c) whether the supplier was able to understand any documents relating to the acquisition or possible acquisition of the goods or services; and

(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the supplier or a person acting on behalf of the supplier by the acquirer or a person acting on behalf of the acquirer in relation to the acquisition or possible acquisition of the goods or services; and

(e) the amount for which, and the circumstances in which, the supplier could have supplied identical or equivalent goods or services to a person other than the acquirer; and

(f) the extent to which the acquirer's conduct towards the supplier was consistent with the acquirer's conduct in similar transactions between the acquirer and other like suppliers; and

(g) the requirements of any applicable industry code; and

(h) the requirements of any other industry code, if the supplier acted on the reasonable belief that the acquirer would comply with that code; and

(i) the extent to which the acquirer unreasonably failed to disclose to the supplier:

(i) any intended conduct of the acquirer that might affect the interests of the supplier; and

(ii) any risks to the supplier arising from the acquirer's intended conduct (being risks that the acquirer should have foreseen would not be apparent to the supplier); and

(j) if there is a contract between the acquirer and the supplier for the acquisition of the goods or services:

(i) the extent to which the acquirer was willing to negotiate the terms and conditions of the contract with the supplier; and

(ii) the terms and conditions of the contract; and

(iii) the conduct of the acquirer and the supplier in complying with the terms and conditions of the contract; and

(iv) any conduct that the acquirer or the supplier engaged in, in connection with their commercial relationship, after they entered into the contract; and

(k) without limiting paragraph (j), whether the acquirer has a contractual right to vary unilaterally a term or condition of a contract between the acquirer and the supplier for the acquisition of the goods or services; and

(l) the extent to which the acquirer and the supplier acted in good faith. [29]

**113 The Plaintiffs placed reliance in particular on s 22(2)(a), (d), (f), (g), (j)(i), (k) and (l) of the ACL.[30]

114 Further, in determining whether a contravention of s 21(1) has occurred, s 21(4)(b) permits the court to have regard to conduct engaged in, or circumstances existing, before the commencement of s 21.[31]

115 In ACCC v All-Phones Retail Pty Ltd[32] Foster J conveniently summarised the body of authority, as it then stood in relation to the former Trade Practices Act 1974 (Cth), relating to unconscionable conduct. His Honour gleaned the following propositions from the authorities:**

The scope of s 51AC is wider than that of s 51AA. The meaning of unconscionable for the purposes of s 51AC is not limited to the meaning of the word according to established principles of common law and equity: per French J in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (No 2) (2000) 96 FCR 491 ; 169 ALR 324 ; [2000] FCA 2 at [24] and [25], per Sundberg J in Australian Competition and Consumer Commissioner v Simply No-Knead Franchising Pty Ltd (2000) 104 FCR 253 ; 178 ALR 304 ; [2000] FCA 1365 at [31], per Selway J in Australian Competition and Consumer Commission v 4WD Systems Pty Ltd (2003) 200 ALR 491 ; 59 IPR 435 ; [2003] FCA 850 at [183] and per Jacobson J in Pacific National (ACT) Ltd v Queensland Rail (2006) 28 ATPR (Digest) 46-268 ; [2006] FCA 91 at [918] and [931].

The ordinary or dictionary meaning of unconscionable, which involves notions of serious misconduct or something which is clearly unfair or unreasonable, is picked up by the use of the word in s 51AC. When used in that section, the expression requires that the actions of the alleged contravenor show no regard for conscience, and be irreconcilable with what is right or reasonable. Inevitably the expression imports a pejorative moral judgment: per Heerey, Drummond and Emmett JJ in Hurley v McDonalds Australia Ltd (2000) ATPR 41-741 ; [1999] FCA 1728 at [22] and 29. This helpful articulation of the meaning of the word when used in s 51AC was followed by Selway J in Australian Competition & Consumer Commission v 4WD Systems Pty Ltd (2003) 200 ALR 491 ; 59 IPR 435 ; [2003] FCA 850 at [183]- [185] (4WD Systems) and by Sundberg J in Australian Competition and Consumer Commission v Simply No-Knead Franchising Pty Ltd (2000) 104 FCR 253 ; 178 ALR 304 ; [2000] FCA 1365 at [30]; and

Normally, some moral fault or moral responsibility would be involved. This would not ordinarily be present if the critical actions are merely negligent. There would ordinarily need to be a deliberate (in the sense of intentional) act or at least a reckless act: per Selway J in 4WD Systems at [185].[33]

**116 In the recent case of ACCC v Lux Distributors Pty Ltd,[34] the proceedings dealt with allegations by the Australian Competition and Consumer Commission (the "ACCC") that between 2009 and 2011, Lux engaged in statutory unconscionable conduct in relation to the sale of vacuum cleaners to five elderly consumers in contravention of s 51AB of the Trade Practices Act 1974 (Cth) and s 21 of the ACL. The ACCC alleged that a Lux sales representative called upon five elderly women in their homes under the premise of a free vacuum cleaner maintenance check, and that each of the women was then subjected to unfair and pressuring sales tactics to induce them into purchasing a vacuum cleaner for a price of up to $2,280.

117 Jessup J dismissed the ACCC's application, finding that, in the circumstances before him, he did not consider that Lux had engaged in unconscionable conduct during their dealings with these consumers. In so doing, and after quoting from the passage of Foster J in ACCC v Allphones Retail Pty Ltd[35] cited above, Jessup J made the following observations which conveniently summarise the present case law:**

In Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389, Allsop P said, with the assent of the other members of the NSW Court of Appeal (at [291]):

Aspects of the content of the word "unconscionable" include the following: the conduct must demonstrate a high level of moral obloquy on the part of the person said to have acted unconscionably: Attorney General (NSW) v World Best Holdings Ltd (2005) ... [2005] NSWCA 261; 63 NSWLR 557 at 583 [121]; the conduct must be irreconcilable with what is right or reasonable: Australian Securities and Investments Commission v National Exchange Pty Ltd (2005) ...148 FCR 132 at 140 [30]; Australian Competition and Consumer Commission v Samton Holdings Pty Ltd (2002) ... 117 FCR 301 at 316-317 [44]; Qantas Airways Ltd v Cameron [1996] FCA 1483; (1996) 66 FCR 246 at 262; factors similar to those that are relevant to the CRA are relevant: Spina v Permanent Custodians Ltd [2009] NSWCA 206 at [124]; the concept of unconscionable in this context is wider than the general law and the provisions are intended to build on and not be constrained by cases at general law and equity: National Exchange at 140 [30]; the statutory provisions focus on the conduct of the person said to have acted unconscionably: National Exchange at 143 [44]. It is neither possible nor desirable to provide a comprehensive definition. The range of conduct is wide and can include bullying and thuggish behaviour, undue pressure and unfair tactics, taking advantage of vulnerability or lack of understanding, trickery or misleading conduct. A finding requires an examination of all the circumstances.

In the same case, his Honour also said (at [293]):

Spigelman CJ in World Best Holdings at 583 [121] referred to a "high level" of moral obloquy. Whether that is too stringent and whether "significant" or "real" may be preferable need not be decided. What is required is some degree of moral tainting in the transaction of a kind that permits the opprobrium of unconscionability to characterise the conduct of the party.

In Director of Consumer Affairs Victoria v Scully (No 3) [2012] VSC 444, Hargrave J said (at [26]-[31]):

The cases concerning the content of statutory unconscionability disclose a consistent requirement that the relevant conduct must include a significant element of moral obloquy. It is not enough that the conduct is objectively unfair, unjust, wrong or unreasonable.

In Qantas Airways Ltd v Cameron [1996] FCA 1483; (1996) 66 FCR 246 at 283-4 and 298, the Full Court of the Federal Court referred to the term "unconscionable" as importing "a pejorative moral judgment" (at 283-4, 298). This approach was affirmed by another Full Court in Hurley v McDonald's Australia [1999] FCA 1728; (2000) ATPR 41-741 at [22].

In Attorney-General (NSW) v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557, the New South Wales Court of Appeal made similar statements. Spigelman CJ (Mason P and Tobias JA agreeing) stated that statutory unconscionability, while intended to extend the equitable concept of unconscionability, does not extend the concept so far as to include conduct which is "merely unfair or unjust" (at [121]). In his Honour's view, statutory unconscionability "is a concept which requires a high level of moral obloquy" or which is "highly unethical" (at [121]).

In Australian Securities and Investments Commission v National Exchange Pty Ltd [2005] FCAFC 226; (2005) 148 FCR 132, the Full Court of the Federal Court again emphasised the need for moral obloquy. The Court held that the conduct at issue involved "a strong element of moral obloquy", because it was intentionally "directed at exploiting the targeted recipients" (at [43]). That case concerned "predatory conduct designed to take advantage of inexperienced offerees", in the hope that some of them "would act irrationally from a purely commercial viewpoint" (at [43]). The targets of the conduct were persons "perceived to be vulnerable targets and ripe for exploitation, as they would be likely to act inadvertently and sell their shares without obtaining proper advice" (at [43]).

The Court of Appeal in New South Wales has recently affirmed the need for moral obloquy as an essential ingredient of statutory unconscionability. In Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 Allsop P (with whom Bathurst CJ and Campbell JA agreed) referred with approval to the above-quoted statements by Spigelman CJ in World Best Holdings (at [291]) although his Honour questioned the need to demonstrate "a high level" of moral obloquy: Whether that is too stringent and whether "significant" or "real" may be preferable need not be decided. What is required is some degree of moral tainting in the transaction of a kind that permits the opprobrium of unconscionability to characterise the conduct of the party. (at [293])

(Emphasis added by Hargrave J.)

It follows that the conduct in question must be more than negligent. It will usually involve some deliberate wrongdoing, although there may be cases where recklessness will suffice (ACCC v 4WD Systems Pty Ltd [2003] FCA 850; (2003) 59 IPR 435, [185]; ACCC v Allphones Retail Pty Ltd (No 2) [2009] FCA 17; (2009) 253 ALR 324, [113]; ACCC v Dukemaster Pty Ltd [2009] FCA 682, [17]; ACCC v Seal-a-Fridge Pty Ltd [2010] FCA 525; (2010) 268 ALR 321, [16]). For example, cases involving wilful blindness. Ultimately, as the cases demonstrate, each case must depend upon its own circumstances and the Court must make a value judgment as to whether to characterise the conduct with "the opprobrium of unconscionability (Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389, [293]).[36]

118 The propositions as cited by Jessup J in ACCC v Lux Distributors Pty Ltd[37] provide a useful guide to the determination of the present application under s 21 of the ACL.

Whether Conduct of the Authority Unconscionable

**119 There are a number of grounds of unconscionable conduct alleged in the amended statement of claim.

120 It was submitted on behalf of the Authority that the claims of the Plaintiffs consist of a series of complaints that it is:**

(a) unconscionable for certain terms to be included in the Standard Agreements to Lease and Standard Store Leases by the Authority (eg relating to the amount of rent, the requirement that additional amounts be paid for adjustments etc); and

(b) unconscionable for the store holders to be required to make their decision and commit to taking space at the Epping site by 31 May 2013 before certain information has been provided, or while certain terms which are objected to remain part of the documentation.

121 I accept that the complaints of the Plaintiffs, which are said to ground allegations of unconscionable conduct in contravention of s 21 of the ACL[38] and the Vic ACL[39], fall into two broad categories, namely:

(a) complaints about the commercial terms being offered to the store holders; and

(b) complaints about the requirement that store holders secure their allocations by executing the Standard Agreement to Lease by 31 May 2013.

**122 In oral submissions counsel for the Plaintiffs illustrated their case by reference to a number of the grounds defined in the amended statement of claim. These were the subject of a vigorous rebuttal advanced by counsel on behalf of the Authority.

123 While the Authority does not say that the Plaintiff's claims are wholly unarguable, it does say that they are very weak so that the balance of convenience would have to be overwhelming in order for an interim injunction to issue.

124 At the core of the submissions advanced by the Authority on the unconscionable conduct allegations that what the Authority has offered to the existing store holders is preferential treatment by offering them space at the Epping site before offering space by an open competitive tender. Existing store holders can choose whether to take up the offer of preferential access by entering into the Standard Agreement to Lease offered by the Authority, before any remaining space is made available to a wider group of competitors by a national ballot. They do not, however, have to take this up: it is a commercial decision for each store holder as to whether to accept the preferential access option on the terms on which it is offered (notwithstanding that there is some uncertainty as to these terms), or wait for greater certainty and compete in the open tender. I accept that this is the choice presented by the Authority to the existing store holders at the West Melbourne Market which is presently on offer.

125 It must also be recalled that the store holders at the West Melbourne Market will all have their present leases expire by the terms of those leases, which provides they will automatically come to an end in July 2014. After this date all rights under those lease will be terminated.

126 Further, what the Authority says as to the unconscionable conduct allegations is that far from showing unconscionable conduct as to the process which has been adopted, the Plaintiffs' own material shows that the process has been beyond reproach. The Authority illustrates its submissions in this respect by reference to the following elements of the transitions regime which it has administered:**

(a) the establishment of the Epping Market is a vast commercial project which has been pursued by successive State Governments since 2004;

(b) in the period, since 2004, the State and the Authority has engaged with the store holders at the West Melbourne Market and the Association regarding a range of matters and has been assiduous in providing as full information as has been possible;

(c) on 27 February 2012, a separate Discussion Paper concerning allocation arrangements for the Epping Market was released to each group in the market community (fruit and vegetable stores, fruit and vegetable stands and flower stands) for feedback;

(d) on 29 June 2012, based on feedback received from the market community (total of 62 submissions), the Minister announced that there would be three sizes of store at the Epping market, that store allocations would only be made to businesses currently holding leases in the market and that the allocation of funding to be made available to eligible leaseholders for loss of space would be the subject of further consultation;

(e) the Minister released a rent discussion paper in June 2012, which made it clear that rents were to be set only to allow the Authority to recover its operating costs and service debt - $480m of public funds devoted to the establishment of the Epping Market are not being recovered by way of rent;

(f) on 2 November 2012, the Minister issued a Notice to all store holders who had been offered stores at the Epping Market and informed them that ballots for stores at the Epping Market would be conducted on 6 December 2012 and advised that, before the ballot, additional information would be provided to store holders which included, store tenancy fit-out guidelines and key commercial terms of leases;

(g) while the date by which store holders wishing to take up offers of preferential access by signing the Standard Agreement to Lease has changed from an initial date of 15 February 2013 to 31 May 2013, it has been clear since at least November 2012 that the preferential access offers would necessarily be open for a limited time, after which space would be put to the market with a view to having the Epping Market open by August 2014;

(h) the Standard Agreement to Lease has been available to store holders since 6 December 2012 when the ballot (allocating specific spaces to specific store holders) was held;

(i) the Authority's requirement that leases at the Epping Market have rolling termination dates - ie a limited number of leases expire in any one year - is a reasonable commercial requirement and has been known to the store holders since at least 6 December 2012;

(j) on 13 December 2012, the Minister advised that it might be possible to reduce rents if construction contingencies were not required and also attached a detailed schedule of charges, a few of which were subject to the final fixing of electricity prices; and

(k) on 14 May 2013, the Authority confirmed that food grade coolant would be used in the central refrigeration system, other than in the central plant room which is located outside the trading floor.

**127 The Authority submits that in these circumstances of this case, so far as they are revealed in the present evidence, it had no legal duty to offer anything to the store holders, whether by way of preferential treatment or otherwise.

128 However, in my opinion, the process which it embarked upon it did in relation to present store holders at the West Melbourne Market gave rise to a legitimate expectation that the process would be conducted reasonably and fairly.

129 In one way or another, all of the grounds advanced by the Plaintiffs come back to the conduct evidenced by the letter from the DBI dated 19 April 2013 sent to the Plaintiffs' solicitors which stated (inter alia) that if a store holder did not execute the Authority's agreement for lease and return it by 31 May 2013, then they would lose their allocation of stores at the Epping Market. This was an extension of the date earlier stated in the Leasing Timetable which had provided for the date of 28 February 2013 after which the Authority stipulated that it would tender any unsigned for stores on the open market.

130 One issue, which arose in the course of the oral hearing before me, stood out as an important matter, even though it was not pleaded in the Amended Statement of Claim.

131 It is common ground that no information has been provided to the affected store holders as to the structure or terms of the tender proposed to be put to the open market.

132 The choice presently presented by the Authority to the store holders is whether to accept the preferential access option on the terms on which it is offered (notwithstanding that there is some uncertainty as to these terms), or wait for greater certainty and compete in the open tender. However, they are all compelled to make this choice, based on the current regime, without reference to any material as to the structure or even an outline as to the terms of the proposed open tender. In other words, they are not in a position to make a commercial choice as to which option to pursue.

133 Further, this choice is to be made by store holders in the situation where persons who achieved a successful allocation may well be permitted to trade their space allocation with other store holders who held leases at the West Melbourne Market. This gives rise to a triable issue that the allocation of specific stores at the Epping Market to each of the Plaintiffs, together with an albeit limited right to trade in those allocations with another leaseholder who has been allocated store space at the Epping Market, conferred proprietary rights on each of them in relation to the specific stores at the Epping Market which were the subject of the allocation.

134 Reduced to its essence, the Authority has put a choice to the store holders who have been granted an allocation of premises in the Epping Market either to accept the lease terms on offer by 31 May 2013, or lose the right which the Authority has conferred (which includes a limited proprietary right to deal in the allocation) and participate in the open public tender which is planned. However the Authority has failed to give any information to these store holders as to the structure and terms of the proposed open public tender, even in outline form, beyond the broad description of it being an "open public tender". In these circumstances, the Authority has placed the store holders in an invidious position where they cannot make a rational commercial decision between the two choices on offer. In other words, the Authority has given the store holders a decision to make, which has potentially serious consequences and affects the rights conferred on them, that is to make a choice between option A and option B, when it has failed to tell them what option B actually entails.

135 If this conduct is made out at trial, in the context of the relative strengths of the bargaining positions of the Authority on the one hand and the store holders on the other, and if it is also established that the store holders are unable to acquire identical or equivalent services elsewhere, in my opinion the necessary level of moral obloquy is capable of being found of such a degree and kind that permits "the opprobrium of unconscionability" to characterise the conduct of the Authority.

136 In my opinion, and for the purposes of this application for an interim injunction, there is a triable issue as to whether, having arguably conferred proprietary rights on the store holders as described, the further step taken in the process to compel them to make a choice in the absence of providing the critical information upon which a commercial decision should be made, namely the necessary information as to the structure and at least an outline of the terms of the proposed tender, which in turn places the relevant store holders in the position of putting at risk their existing rights, is arguably unconscionable, and presents for adjudication a triable issue.**

Balance of Convenience Issues Raised by the Authority

137 The solicitor for the Authority, Mr Michael Pryse, has sworn an affidavit as to the balance of convenience which addresses the following issues of importance from the perspective of the Authority:

(a) The execution of Agreements to Lease by store holders at the West Melbourne Market by 31 May is considered by the Authority to be on the critical path to the ability to open the Epping Market as planned in August or September 2014.

(i) the opening of the trading floor complex at the Epping Market;

(ii) the program for construction of warehousing at the Epping Market.

(c) The trading floor complex at the Epping Market will house 74 large, 30 medium and 40 small stores. Construction of that complex by the builder, Bovis Lend Lease, is expected to be completed by August or September 2013. The fit out work for individual stores can only be commenced once the builder has completed those works.

(d) It is anticipated that the process of store holders inspecting stores, undertaking design work, obtaining approvals and engaging contractors to undertake store fit out works will occur up to December 2013, and that construction of fit out works will commence in January 2014. The Authority has allowed 6 months for all 144 stores to be fitted out.

(e). If there are only a relatively small number of unallocated stores following the 31 May deadline, the process of allocating those stores by an open tender or auction is likely to be conducted in June (a longer period would be required if there is a large number of unallocated stores). This would then allow a full allocation to have occurred by the time the builder completes the trading floor complex so as to enable the fit out works in the stores to commence according to the above timetable to meet the identified requirements of store holders.

(f) As is referred to below under "Warehousing program", there must also be sufficient certainty as to warehousing requirements of store holders by August/September 2013 to meet a timetable to provide at least some warehousing for the Epping Market for an opening of the Epping Market by third quarter 2014. This can only come after the identity and requirements of store holders are known. In the event that a tender process is required for stores not allocated to existing store holders those store holders and their requirements will not be known until about August/September 2013 after the tender has been conducted. Unless the requirements of existing store holders are known by 31 May 2013, the time available to conduct the tender process and meet the timetable of providing firm specifications for fit out and warehousing requirements is under extreme pressure.

Temporal constraints on transfer of market to Epping

(g) The peak season for the market is the warmer months from November to March (especially November and December). Accordingly, to minimise disruption to the tenants of the market, including the stone fruit growers, it would be undesirable to move the market from West Melbourne to the Epping site during that period.

(h) Further, essential testing of the new Epping Market cooling system can only be undertaken once the market is operational. Accordingly, it would be prudent practice to open the market during the non-peak periods so that the cooling system can be tested, and any teething problems addressed, without the cooling plant needing to be run on full load immediately on commencement.

(i) Having regard to these matters, it is highly likely that if the Epping Market is not able to be opened by the 3rd quarter 2014, then the opening would be delayed to April or May 2015.

(j) At this stage it is proposed to use State funds to construct 30,000sqm of warehousing within the Epping Market site. The bulk of warehousing will be required by the larger store holder businesses (over 1100 sqm), most of whom have provided detailed information as to their specific requirements and this segment is likely to be of interest to private developers and reduce the State funding allocated to warehousing.

(k) On 20 February 2013, the State sought expressions of interest to build and develop warehousing on either State funded or private sector funded basis. A shortlist of builders/developers for warehousing procurement is about to be announced.

(l) The short listed builders/ developers will be required to submit a response to a Request for Proposal which would include detailed responses on the pricing of tenants' warehousing requirements. To participate in the tender process taking into account related costs and resources, the developers need an indication of demand certainty from tenants for Epping, particularly from the larger store holders who will require the bulk of warehousing. Requiring existing store holders to execute an agreement to lease provides that certainty.

(m) Further, most of the funding for the State built warehousing component will be sourced via a debt facility from the Treasury Corporation of Victoria (TCV) and this will need to be used in full unless there is developer interest. The Department of Treasury and Finance who oversee TCV require evidence that the debt will be able to be serviced/repaid with a reasonable level of certainty from revenue to be generated at the new market; that in turn is determined by the likely level of tenancy for warehousing. It is expected that any private sector funding would require a similar certainty.

(n) Respondents to the warehousing Request for Proposal had been allowed only two months to prepare responses; the Authority has been informed that that period is very tight. The State then has allowed only one to two months to evaluate those responses and determine a successful builder/developer by August or September 2013. That timeline is regarded as extremely tight in the context of a substantial (between $30 - $100 million) project which has complexities having regard to the Government/private relationship and the requirements for due process under a public sector procurement regime.

(o) It is estimated that a successful builder/developer would require at least 10 - 12 months to build approximately 32,000sqm of warehousing generally regarded as a minimum to be able to open the Epping Market (being the same volume as is available at the West Melbourne Market).

(p) That 10-12 month build program includes an allowance for design finalisation, interaction with tenants, planning approval and site mobilisation, all of which will need to be undertaken from September to November 2013 to avoid slippage to February 2014 having regard to the Christmas shutdown.

(q) Accordingly, if the construction contract and arrangements with a private developer for the provision of warehouse space for store holders (being the larger store holders) is not awarded by August or September 2013 at the latest, the projected timeline for providing at least some warehousing for the Epping Market will not be met.

(r) The following deals with the financial consequences to the Authority if the Epping market were not to commence as planned and the Footscray market were to continue to operate.

(s) In respect of the Epping Market, at the proposed rental of $392 per sqm, the Authority would receive total rental and other (such as parking) revenue of approximately $17.6 million per year. That money will be applied to meet operating costs (estimated to be $16.4 million in the first year) with the balance ($1.19 million) applied to debt servicing for the Trading Floor Complex.

(t) If the Epping market does not open on time, then:

(ii) the Authority will nevertheless have to bear many of the Epping Market's operating costs that are fixed, including asset insurance, security for the premises, basic and preventative maintenance, providing base load power and the extension of warranties - it is estimated that these holding costs, including capitalising interest, are approximately $713,000 per month if no warehousing is procured;

(iii) if 32,000m² of warehousing is procured using TCV funds, the holding cost is estimated to increase to $932,000 per month; and

(iv) if 60,000m² of warehousing is procured using TCV funds, the holding cost is estimated to increase to $1,090,000 per month.

(u) If the Epping market does not open on time and the Footscray market continues to operate, then the Authority will continue to receive rental from the Footscray market, but will also continue to incur the operating costs of that market.

(v) There are a number of unknowns (or variables) in calculating the amount of the loss that Authority would suffer from such a delay, including the extent to which increased costs (particularly capitalised interest) would be recovered from tenants by higher rents and the extent of warehousing that would be built if the Authority is prevented from ascertaining the level of tenant demand.

(w) The net effect of the above matters will be that a delay in the opening of the Epping market will cost the Authority approximately $295,000 per month if no warehousing is procured and up to $671,000 per month if 60,000 m² of warehousing is procured using TCV borrowings.

(x) There are risks associated with the Epping premises being left idle. A number of issues relating to defects liabilities that the builder guarantees to rectify within a specified period after completion cannot be tested or enforced until the facility is operational. These will require negotiation with the builder, with increased costs. This will include extending warranties for a range of mechanical plant and equipment. Large portions of the paved areas have been designed to carry heavy trucks, and there is a concern that not having that heavy loading and compaction over an extended period could cause cracking or other damage to that area.

**138 In my opinion, although the matters raised by Mr Pryse point to a program for practical completion which is tight, with consequential financial and physical consequences if substantial delay is suffered, a further extension of the cut-off date set by the 31 May deadline by some 18 days, will not on the evidence provided thus far, be such as to seriously impair the program for completion. Although it will impose a degree of additional pressure on the Authority to complete the works by the planned date for practical completion, this will not be on a scale that cannot be overcome.

139 On the other hand, the potential for the store holders to lose the businesses which they have been operating for some time, if they are forced to make a decision by 31 May 2013 without the benefit of the tender information upon which an informed decision can be made, is on the present evidence a serious risk.

140 In these circumstances I am of the opinion that if there is no injunction granted but the Plaintiffs' claims are ultimately vindicated, and the Plaintiffs or any of them lose their businesses in the process, those Plaintiffs' will suffer irreparable harm for which damages will not be an adequate remedy. The losses sustained on loss of a business, and the costs to be incurred in re-establishing and rebuilding a business one lost, if indeed that is possible, are not likely to be readily calculable and compensated for by damages.

141 On balance therefore, on consideration of the various competing factors advanced, the balance of convenience favours the Plaintiffs for the grant of the interim injunction for the short period they have sought in this application.**

142 During the hearing of the interim application, the Authority proffered the following undertaking:

Any member of the group referred to in paragraph 350 of the Amended Statement of Claim who enters into the relevant Agreement for Lease and Lease circulated by the MMA on 6 May 2013 (without amendment), incorporating the period (duration) already nominated by that group member as recorded at pages 997.17-997.23 of Exhibit JJR1 to the Affidavit of Mr Roach, may elect, by notice in writing to MMA within 2 clear business days after the determination of the Plaintiffs' application for an interlocutory injunction (pursuant to the Summons dated 22 May 2013), to be released from the said Agreement for Lease and Lease, and if any member of the group so elects then it shall be released.

**143 The undertaking has been carefully worded to be temporally governed by the determination of the Plaintiffs' application for an interlocutory injunction pursuant to their Summons dated 22 May 2013.

144 The critical date for the Plaintiffs however is the date when they are informed of the terms of the proposed public tender. It is only then that they will be in a position to make a rational decision as to whether to proceed with the relevant Agreement for Lease and Lease or abandon them in favour of proceeding to enter the arena of the proposed public tender process.

145 The Plaintiffs have not accepted the undertaking.

146 For the reasons above, I am of the view that their refusal to accept the undertaking is not unreasonable, and it will not be taken into account in the disposition of the matter at this stage of the proceeding.**

**147 The Plaintiffs have also sought the provision of a large number of categories of documents which they say are of importance to them in determining whether to execute the Agreement for Lease and the Lease for their allocated premises in the Epping Market, and in the alternative, to determine whether they forfeit their existing allocations in favour of participating in the proposed tender process.

148 In the time available, but with one exception, it has not been possible to assess the validity of these claims, and whether in fact, as is urged by the Authority, the Plaintiffs have already been provided with all of the necessary documents. The exception is information as to the structure of, and at least an outline as to the terms of the proposed public tender.

149 The Plaintiffs have indicated that they would be amendable to attending a mediation which can be established at short notice with a view to resolving these matters, that is the issue as to what information and documents as to the new proposed tenancies at the Epping Market are reasonably necessary for the Plaintiffs to make a commercial decision as to whether to execute the Agreement for Lease and the Lease in each case, or whether to submit to the proposed open tender process, and the further issue as to the timing of the provision of such information and documents.

150 The Authority has indicated in correspondence that it considers the provision of relevant information to the store keepers an important part of the process. Further, as a model litigant, it is fully expected that the Authority will engage in the mediation with a view to resolving at least this particular issue.

151 It appears to the Court that a sensible resolution of the issues relating to the provision of information and documents at this juncture will in any event go a long way to resolving proceeding overall, which would not only be consistent with the obligations and duties provided for in the Civil Procedure Act 2010, but would well serve the interests of, and be of considerable benefit to, all parties to the litigation.**

152 In my opinion, in the light of the legal principles referred to earlier, there is a serious question to be tried. The Plaintiffs have shown a sufficient likelihood of success to justify in the circumstances the preservation of the status quo, at least for the short time of some 18 days which has been sought in this interim injunction application. In particular, I am of the opinion that:

(a) the balance of convenience favours the grant of the injunction; and

(b) if there is no injunction but the Plaintiffs' claims are ultimately vindicated, they will have suffered irreparable harm for which damages will not be an adequate remedy.

153 In all the circumstances, and after weighing the competing factors, I am of the view that it is appropriate to grant an interim injunction for a short period, and to make a further order for mediation in relation to the issue of the provision of further information to the affected store holders.

154 It is ordered that, upon the Plaintiffs giving the usual undertakings as to damages:

(1) Until 5:00 pm 18 June 2013, or further order, the Defendant (the "Authority") whether by itself, its servants and/or agents or otherwise howsoever be restrained from:

**(a) removing or purporting to remove any store holders' allocation;

(b) otherwise disentitling a store holder from their allocation;

(c) reallocating any store holders' allocation to any other person;

(d) informing or stating to any store holder that if they do not comply with a request then the Authority will remove their allocation;

(e) informing or stating to any store holder that if they do not comply with a request then the Authority will otherwise disentitle them from their allocation - of a store at the Epping Market.**

(2) Pursuant to Order 50.07 of the Rules of Court and s 66 of the Civil Procedure Act 2010, that part of the proceeding relating to the issue as to what information and documents as to the new proposed tenancies at the Epping Market and the proposed open tender process are reasonably necessary for the Plaintiffs to make a commercial decision as to whether to execute the Agreement for Lease and the Lease in each case, or whether to submit to the proposed open tender process, and the further issue as to the timing of the provision of such information and documents, is referred to mediation.

(3) The following further orders are made as to the mediation:

(a) The mediator shall be a person who is a senior legal practitioner with experience in commercial law;

(b) The mediation is to be convened as soon as possible on an urgent basis with a view to being concluded by 17 June 2013 when the mediator is to report to the Court as to the outcome of the mediation;

(c) The parties are directed to confer as soon as possible with a view to agreeing upon what further mediation orders (if any) should be made, and upon such agreement being achieved the further mediation orders may be made by consent 'on the papers';

(d) If no agreement can be reached on the further mediation orders or as to the conduct of the mediation, the parties are granted liberty to apply before the Hon. Justice Vickery to settle the further mediation orders or otherwise make directions as to the conduct of the mediation.

(4) The Plaintiffs' summons dated 22 May 2013 for interlocutory orders be adjourned sine die to a date to be fixed.

(5) The proceeding be referred to the Hon. Justice Davies for further management.

[1] Melbourne Market Authority Act 1977 (Vic) ss 4 - 7.

[2] Melbourne Market Authority Act 1977 (Vic) ss 8.

[3] [2006] HCA 46; (2006) 227 CLR 57.

[5] [1968] HCA 1; (1968) 118 CLR 618.

[6] ABC v O'Neill [2006] HCA 46; (2006) 227 CLR 57, 65 (citations omitted).

[7] [2006] HCA 46; (2006) 227 CLR 57.

[8] (2006) 15 VR 65; (2006) V ConvR 54-722; [2006] VSCA 89 [84].

[10] [1985] FCA 19; (1985) 5 FCR 464, 472.

[11] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57, [65].

[12] Bradto [2006] VSCA 89; (2006) 15 VR 65, [35].

[13] [2002] VSC 301.

[14] [2004] VSC 248.

[15] Bradto [2006] VSCA 89; (2006) 15 VR 65, [35].

[16] [2012] QSC 117.

[17] (2001) 208 CLR 199, 217.

[18] [2006] HCA 46; (2006) 227 CLR 57, [54].

[19] Devine v Emu Park Historical Museum Society Inc [2012] QSC 117 [16]-[17].

[20] Melbourne Market Authority Act 1977 (Vic) ss 21.

[21] Melbourne Market Authority Act 1977 (Vic) ss 7.

[22] [2003] FCAFC 78; [2003] 129 FCR 64 (Dowsett J).

[23] Competition and Consumer Act 2010 s 232.

[24] Competition and Consumer Act 2010 ss 21 - 22.

[25] [2007] HCA 33; (2007) 233 CLR 307.

[26] Ibid [105]-[107] (citations omitted).

[27] Competition and Consumer Act 2010 s 21.

[28] Competition and Consumer Act 2010 s 21.

[29] Competition and Consumer Act 2010 s 22.

[30] Competition and Consumer Act 2010 22.

[31] Competition and Consumer Act 2010 s 21.

[32] [2009] FCA 17; (2009) 253 ALR 324.

[34] [2013] FCA 47; (2013) ATPR 42-429.

[35] [2009] FCA 17; (2009) 253 ALR 324.

[36] [2013] FCA 47, [9]-[10].