Plaintiff v Defendant

1 This proceeding has been brought pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"). The Plaintiff, CB Cold Storage Pty Ltd, is seeking to appeal from an order of the Victorian Civil and Administrative Tribunal ("the Tribunal" or "VCAT") constituted by Senior Member R. Walker made on 7 November 2016 bearing VCAT Reference No BP462/2016.

2 The Defendant, IMCC Group (Australia) Pty Ltd ("the Landlord"), is now the owner, the freehold reversioner, of a large refrigerated storage warehouse in North Laverton ("the Premise"). By a lease commencing on 1 September 2012 ("the Lease"), the Landlord's predecessor in title, Iankev Pty Ltd, leased the Premises to the Plaintiff, CB Cold Storage Pty Ltd ("the Tenant"), for a period of ten years. On 30 October 2013, the Landlord became the owner, and hence the freehold reversioner, of the Premises.

3 The Tenant asserted in the proceedings before the Tribunal, and does so in this application for leave to appeal and any appeal, that the Premises are retail premises within the meaning of the Retail Leases Act 2003 ("the Act"). The Landlord denies that the Premises are retail premises for the purposes of this legislation, both in the proceedings before the Tribunal and in the present proceedings.

4 On 18 April 2016, the Tenant brought proceedings in VCAT seeking to recover various sums that it had paid to the Landlord on the ground that, because the Premises are, it asserted, retail premises, those moneys are not payable. Certain other relief is also sought. On 19 August 2016, VCAT made orders for the determination of a preliminary issue, namely:

Are the subject Premises retail Premises under the Retail Leases Act 2003?

5 The preliminary issue came before Senior Member Walker in the Tribunal for hearing and determination on 26 October 2016. The Tribunal's answer to the question posed by way of preliminary issue was provided in the orders of 7 November 2016, the answer being "No". It is from this determination that the Plaintiff seeks leave to appeal and to establish the contrary position by way of appeal. The basis upon which the Plaintiff seeks to do so is set out in the draft Notice of Appeal, as finally revised during and at the conclusion of the hearing in these proceedings.

A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding -

(a) if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or

(b) in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.

It follows from these provisions that any appeal is dependent upon two important qualifications. First, that the appeal be on a question of law, and secondly, that the Court gives leave to appeal. The legislative policy underlying these provisions is that "VCAT decisions should not generally be disturbed where cases have been decided in that forum other than on questions of law and where there is something about the decision bearing upon the question of law which warrants a grant of leave to appeal."[1] It follows that "[t]his Court is not entitled to enter into the fact finding exercise which the legislature has deliberately entrusted to a specialist tribunal."[2]

7 The leave requirement under s 148(1) of the VCAT Act is designed to maintain this position. As Pagone J said in Commissioner of State Revenue v Frost:[3]

The requirement for leave under s 148(1) of the VCAT Act "is a safeguard that the appeal is on a pure question of law and that the grounds supporting the question of law articulated for determination by the Court do found the subject matter of the appeal".[4] It also confers a discretion about whether to grant leave[5] which an applicant must persuade the Court to exercise in its favour. What must be shown will depend upon the particular case bearing in mind the statutory criteria being a grant of leave and not special leave.[6] It will ordinarily be necessary (in addition to a clearly articulated question of law)[7] for an applicant to make out a prima facie case[8] and in an appropriate case it may be necessary for the applicant to show that the question upon which leave is sought has public or general importance.[9]

8 In considering an application of this nature, courts have been concerned to respect the role entrusted by the legislature to the particular tribunal and not, in effect, subvert this position by seeking out error. Thus, Kirby J in Roncevich v Repatriation Commission said:[10]

Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons.[11] The focus of attention is on the substance of the decision and whether it has addressed the "real issue" presented by the contest between the parties.

Similarly, in Vegas Nominees Pty Ltd v Werribee Sports & Community Club Inc, Ashley J said:[12]

This Court has said more than once that it should not examine briefly stated reasons by an expert Tribunal in an over-legalistic manner or by the over-zealous drawing of inferences in order to disclose some supposed error; although where unambiguous language is used, the user should be taken to mean what the words say. I should add that the Court is not entitled to interfere with the Tribunal's decision unless it is satisfied that there was in fact a vitiating error of law. It is not enough for the appellant to show that the Tribunal's reasons for its decision are so expressed as to suggest the possibility that it proceeded upon a wrong view of the law. In support of the several propositions that I have just stated I refer to Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works,[13] Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works[14] and Teston Investments Pty Ltd v Melbourne & Metropolitan Board of Works.[15]

Additionally, "[o]n appeal this Court must recognise the forensic realities of the way in which the case was put to the Tribunal. It is these realities to which a Tribunal must respond in its reasons."[16]

9 For the reasons which follow, I am satisfied that the Plaintiff has both established a question of law which warrants the grant of leave to appeal and, further, has been successful in this appeal. Were this simply an application for leave to appeal, I would, on the material to which reference has been made in these reasons, find that a sufficiently arguable case has been established on the part of the Plaintiff, as discussed in Secretary of the Department of Premier and Cabinet v Hulls.[17] Moreover, I am also satisfied that the application raises a question or questions which have public importance.[18]

10 The Further Amended Proposed Notice of Appeal seeks to identify the relevant question of law, the grounds of appeal and the orders sought, in the following terms:

Question of law

The question of law upon which the appeal is brought is as follows:

1. Are leased premises not "retail premises" for the purposes of s 4(1) of the Retail Leases Act 2003 where consumers of the service provided at the premises by the tenant use the service for their own business purpose?
2. Alternatively, did the Tribunal properly apply s 4(1) of the Retail Leases Act 2003 to the evidence before it in answering the preliminary question as it did.

Grounds of appeal

The grounds of appeal upon which the appellant relies in respect of both questions of law are as follows:

1 In circumstances where:

(a) the lease required that the tenant use the leased premises "solely for the purpose of conducting the business or businesses permitted under the lease" (clause 4(a)(ii) of the lease); and

(b) the permitted use of the premises under the lease was "Cold and cool storage warehouse and transport facility" (item 11 in the schedule to the lease); and

(c) the landlord accepted and the Tribunal found that the actual use of the leased premises by the tenant was in accordance with the terms of the lease (at [33] of the reasons); and

(d) the Tribunal found that the rented premises were "open to the public" (at [32] of the reasons); and

(e) the Tribunal found that the tenant's customers ranged from "large primary production enterprises to very small owner operated businesses" (at [68] of the reasons),

the Tribunal erred:

(a) in holding that customers that use a tenant's service for a "business or other purpose" are not "consumers" of the tenant's service (at [62], [65] and [68] of the reasons);

(b) in not holding that the customers referred to in (e) were the "ultimate consumers" of the tenant's service and therefore, having regard to (a) to (e), that the leased premises were "retail premises" within the meaning of s 4(1) of the Retail Leases Act 2003.

Orders sought

The Appellant [the Tenant, the plaintiff] seeks orders that:

1. The appeal be allowed.
2. Paragraph 1 of The the Order order dated 7 November 2016 be set aside.
3. Paragraph 1 of the order dated 16 December 2016 be set aside.
4. The preliminary issue in the VCAT proceeding "Are the subject premises retail premises under the Retail Leases Act 2003?" be determined "Yes".
5. The Respondents pay the Appellant's costs of and incidental to this proceeding.
6. Such further or other order as this Honourable Court deems appropriate.

11 The further amendments to the proposed notice of appeal, as indicated by the underlining in passages set out above, were made by agreement between the parties during and at the conclusion of the hearing in these proceedings; arising out of issues raised by the Defendants' senior counsel with respect to the question as framed in what is now paragraph one of the Further Amended Proposed Notice of Appeal. In my view, it is perfectly clear from the VCAT proceedings and the reasons delivered by Senior Member Walker that the question posed - pithily stated - is whether or not, in the context of the provisions of the Lease and the circumstances of this particular matter as found by VCAT or conceded by the parties, the Premises are retail premises for the purposes of the Act.

12 It is clear from the authorities that identification of a question of law not only enlivens the appeal, but constitutes the subject matter of the appeal itself.[19] Moreover, the Court, exercising jurisdiction under s 148 of the VCAT Act, exercises original, not appellate, jurisdiction and the appeal proceedings are in the nature of judicial review to correct errors of law.[20] Where leave is granted for an appeal under s 148 of the VCAT Act, the Court does not exercise a general appellate function,[21] nor does it rehear the merits of the application before the Tribunal.[22]

13 In the present proceedings, the critical factual matters and the construction and operation of the relevant terms of the Lease are not in controversy. Consequently, the issue is whether the question or questions of law set out in the Further Amended Proposed Notice of Appeal are properly to be regarded as raising questions of law and, if so, whether the question or questions is or are of public and general importance such that leave to appeal should be granted.

14 Turning now the particular aspects of the leave application and proposed appeal, the Defendant submits that the Plaintiff ought not be granted leave to appeal on the question or questions for a variety of reasons which are set out in some detail in its written submissions.[23] Summarising these submissions, two principal threads appear. The first of these threads is that the question of law as formulated prior to the further amendment of the proposed notice of appeal settled at the conclusion of the hearing of this proceeding is neither asked nor answered by the Tribunal, was an attempted reformulation of the question asked and answered by the Tribunal in a different way, and that it is substantially narrower and seeks to exclude reference to all of the relevant circumstances by focusing merely upon one circumstance only.

15 The second thread is that the question does not identify the facts which are relevant to its answer from the reasons given by the Tribunal or the evidence before the Tribunal. Particularly, in this respect, the Defendant admits that the Tribunal took into account all the evidence before it, none of which was contested, and identified with particularity the aspects of the evidence upon which the Tribunal reasoned and upon which it construed s 4(1) of the Act; the relevant provision with respect to both the preliminary question posed in VCAT and for the purposes of these proceedings.

16 In my view, the question of law as set out in the Proposed Notice of Appeal before its further amendment as set out in paragraph one of the further amended document does provide a coherent, comprehensive and helpful statement of the question of law relied upon and is, in my view, a fair and concise formulation of the issue before and determined by the Tribunal by way of the preliminary issue. True it is that the proposed question elaborates on the question formulated in the VCAT proceedings by way of preliminary issue. Nevertheless, it does not, in my view, do more than further assist an understanding of the nature of the preliminary issue determined by the Tribunal and does not pose a question which goes beyond the boundaries of the question answered by the Tribunal by way of preliminary issue. The addition of paragraph two to the formulation of the question of law as set out in the Further Amended Proposed Notice of Appeal does not, in my view, add anything to the question of law as set out in the preceding paragraph, paragraph one. It is, in my view, merely an alternative and more general way of stating the same question. In any event, it is, as indicated previously, quite clear that the appeal question - pithily stated - is whether the Premises are "retail premises" for the purposes of s 4(1) of the Act and, within the bounds of the nature of these proceedings under s 148, whether the Tribunal was in error in its determination of the preliminary issue.

17 Having criticised the question of law as set out in the Proposed Notice of Appeal - but prior to the addition of the second paragraph to the questions of law in the Proposed Notice of Appeal at the hearing of this proceeding - the Landlord submits that the question posed by the Tribunal and answered by it does give rise to a question of law within the meaning of s 148 of the VCAT Act. I take this submission to be clear reference to the preliminary issue question which the Tribunal addressed itself, as indicated previously. More generally, the Landlord submitted that a question of whether the Tribunal properly applied the provisions of the Act to the facts of the present case is a question of law.[24]

18 Following the more extended formulation of the question or questions of law in the Further Amended Proposed Notice of Appeal and for the preceding reasons, the proposition advanced in the Landlord's submissions appears to me to be entirely apposite and to support the position that the question or questions of law now advanced are properly regarded as question or questions of law for the purposes of s 148 of the VCAT Act. Nevertheless, reference was made by the Tenant in its submissions to a number of authorities which also support this position. In Hope v Council of the City of Bathurst, Mason J said that: "Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law".[25] The nature of a relevant question of law for the purposes of provisions of similar nature to s 148 of the VCAT Act was considered more recently and in more detail by the Court of Appeal in relation to the provisions of s 52(1) of the Accident Compensation Act 1985, which provides that:[26]

[A]ny person who was a party to proceedings before the County Court and at which a judgment or decision was given or made may appeal to the Court of Appeal on a question of law raised during those proceedings.

In relation to these provisions, Maxwell P and Tate JA discussed the scope of the appeal thus available, as follows:[27]

1. In Transport Accident Commission v Hoffman,[28] the Full Court was concerned with the construction of s 52(1) of the AAT Act[29] and what was then the novel limitation of an appeal to a question of law. The Court said:

[A] right of appeal 'on a question of law' appears to be a novel concept. A right of appeal is a familiar concept but it is usually a right given to appeal 'from' or 'against' a decision. So here the right given is to appeal 'from a decision of the Tribunal'. The interpolation of the words 'on a question of law' seems clearly enough to show an intention to limit the right of appeal but it is not clear what limitation is intended.[30]

1. The Court took the view that the subsection should not be construed as limiting the right of appeal to an appeal from those decisions made by the Tribunal on questions of law. Such a construction would have been overly restrictive. Nor should it be read as so broad as to permit appeals from any decisions involving questions of law. This may have been considered inconsistent with the parliamentary intention because, on a wide view of what amounts to a question of law, this might include all, or almost all, decisions of the Tribunal.
2. Rather, the Court determined, s 52(1) of the AAT Act should be construed as conferring a right of appeal from those questions of law which had played a part, or ought to have played a part, in the decision; that is, as referred to in Green, an appeal was to be limited to questions of law that were involved in the decision from which the appeal was brought. The Court said, referring to s 52(1) of the AAT Act:[31]

It is not to be construed as limited to an appeal from a decision of the Tribunal on a question of law. Nor is it to be construed as granting an appeal from any decision which involves a question of law. The via media we think is to construe the section as granting a right of appeal from any decision of a Tribunal on a question of law which is involved in the Tribunal's decision.

1. In Green, the reasoning proceeded in three stages. First, by reading s 52(1) of the Act as including a reference to the 'decision' of the Court, there was a fixed and objective point of reference in relation to which an appeal could be brought, which the terms of the subsection had omitted to provide. Secondly, this made the judgment or decision the focal point in respect of an appeal. Thirdly, this construction allowed for the reasoning in Hoffman to apply. The right of appeal was not to be confined to judgments or decisions on questions of law because that would be overly restrictive. Nor was it to be read so broadly as to encompass an appeal from any judgment or decision which had itself involved a question of law. Rather, the questions of law on which an appeal could be brought were to be confined to those matters which were involved in the judgment or decision from which the appeal was brought. Thus, the focus was not so much on whether an issue had been raised at trial but whether the issue played a part, or should have played a part, in the judgment or decision.

19 In the present circumstances, the question or questions of law now raised are relevant to the relief sought, being an order setting aside the Tribunal's order determining that the Premises are not "retail premises" within the meaning of the Act. On the basis of the facts fully found, the Tribunal concluded that the Premises were not "retail premises"; critically, but apparently not solely, because the Tenant's customers used the Tenant's service for their own business purposes. Stated more broadly and more pithily, the substance of the question or questions of law raised in the Further Amended Proposed Notice of Appeal is, as I have indicated, simply whether the premises were "retail premises" under the Act. Moreover, this is, in effect, simply the question being raised in the second paragraph of the questions of law as set out in the Further Amended Proposed Notice of Appeal. Clearly, this question is one which was "involved" in the decision of the Tribunal and is the central and critical part of the Tribunal's reasoning process with respect to the application of these provisions of the Act to the facts as fully found. So, for these further reasons, in addition to the position put in the Landlord's submissions to which reference has been made, there is, in my view, no doubt that the question or questions of law are properly regarded as a question or questions of law for the purposes of s 148 of the VCAT Act.

20 There is a further issue in relation to the importance of the question or questions and, in this respect, the Defendant Landlord appears to raise some doubts, in general terms. However, it is clear, in my view, that the proper construction of the expression "retail premises" within the meaning of the Act in the context of the provisions of s 4(1) is a question of public and general importance because it determines whether or not tenants who use leased premises to provide services to persons or organisations that use the tenant's service for business purposes attract the benefit of this "ameliorating and remedial legislation".[32] In this respect, the effect of the Tribunal's reasoning is significant in that it would restrict significantly the number of tenants who would be protected by the Act; being, as it is, ameliorating and remedial legislation.[33] Quite apart from this aspect of the matter, there is the desirability of some commercial certainty insofar as that can be provided by considered judgments of this Court. As the authorities with respect to Victorian and other retail leases legislation indicate, the courts have, over many years, had an important role in this respect. Some of the authorities considered in the reasons which follow do, in my view, illustrate this position very clearly. Consequently, I reject any suggestion that the question raised in these proceedings is not one of significant public and general importance.

21 The Plaintiff submits that the Tribunal erred in two ways. First, in holding that customers that use a Tenant's service for a business purpose are not ultimate consumers of that service and, secondly, in not holding that the Tenant's customers were the ultimate consumers of the Tenant's service and therefore that the Premises were "retail premises" within the meaning of the Act.

22 The Defendant submitted to the contrary in a number of respects. One broad aspects of its submissions was that the language of s 4(1) of the Act was to be understood on the basis of the ordinary meaning of language and that, particularly, the word "retail" simply bore its ordinary English, dictionary, meaning. Thus, emphasis was placed on the statement by Nathan J in Wellington v Norwich Union Life Insurance Society Limited where his Honour said:[34]

The essential feature of retailing, is to my mind, the provision of an item or service to the ultimate consumer for fee or reward. The end user may be a member of the public, but not necessarily so. In support of this conclusion, I call in aid not only commonsense but the Macquarie Australian Dictionary which defines retail as being a sale to an ultimate consumer, usually in small quantities. When the verb is used in the transitive form, it is to sell directly to the consumer.

Nathan J then considered a number of United States and United Kingdom authorities with respect to the meaning of retailing and then turned to some Australasian authorities which elaborate the concept of the supply of services in this context.[35] In my view, this relatively early authority with respect to the operation of the predecessor provisions to s 4(1) of the Act (in 1991, the Retail Tenancies Act 1986 having commenced only approximately five years earlier) indicates that, in this legislative context, words such as "retail" have received considerable judicial attention and it is really simplistic and unhelpful now to suggest that the proper interpretation of these critical provisions of the Act is merely a matter of applying dictionary definitions.[36] This position is reinforced as a result of the consideration of the authorities to which I now turn.

23 For the reasons which follow, the first error of law made by the Tribunal is to be found in paragraph 62 of the reasons, as follows:[37]

In all of these cases the goods or services are rendered to persons variously described as members of the public or the ultimate consumer. The term "consumer" is nowhere defined in dictionary definitions are unhelpful [sic] but in the sense in which it has been used in the cases I think it means the person who uses the goods or services to satisfy his own personal needs rather than for some business or other purpose.

24 To place paragraph 62 in some context, it is helpful to set out some of the preceding discussion:[38]

1. The phrase "...the retail provision of services..." is not defined in the Act and those words have no special meaning. The words bear their ordinary meaning as English words and the word "retail" in the section must be taken to bear the meaning that it is commonly understood to have.
2. The word retail is defined in the Macquarie Dictionary as:

n. 1. the sale of commodities to household or ultimate consumers, usually in small quantities (opposed to wholesale), adj. 2. Pertaining to, connected with, or engaged on sale at retail.

1. In the concise Oxford dictionary it is defined as:

sale of goods in small quantities at a time and usually not for resale.

1. In the Collins Dictionary and Thesaurus it is defined as:

n. 1. The sale of goods individually or in small quantities to consumers.

1. In applying the definition the courts and the tribunal have looked to various indicia of "retail", such as "ultimate consumer" and "open to the public" and these have been found to provide a valuable guide. However no indicium can be substituted for the words of the Act. In each case it is a mixed question of fact and law whether the predominant use of the premises under the lease is such that the Act applies. The question must be answered afresh each time.
2. In Maunsell v Olins [1974] 3 WLR 835, Lord Reid said, concerning reliance upon rules of construction of legislation, (at p.837):

They are not rules in the ordinary sense of having some binding force. They are our servants not our masters. They are aids to construction, presumptions or pointers. Not infrequently one 'rule' points in the one direction, another in a different direction. In each case we must look at all relevant circumstances, and decide as a matter of judgement what weight to attach to any particular 'rule'.

1. The indicia regarded as significant for decisive are not the same in all cases. In Swanson Street Pty Ltd v Harbut Pty Ltd, premises to which the public could resort for the purpose of having particular wants supplied and services rendered to them were considered to be retail premises. In Fitzroy Dental Pty Ltd v Metropole Management Pty Ltd premises used for conferences, albeit on an occasional basis are considered to be retail premises, notwithstanding that they were not constantly open to the public. In Wellington v Norwich Union Life Insurance Society Ltd Nathan J considered that the term "retail" applied to the provision of an item or service to the ultimate consumer for fee or reward. In FP Shine (Vic) Pty Ltd v Gothic logs Pty Ltd [1994] 1VR 194 the retail characteristics, which Ashley J found were the provision of services to members of the public wishing to avail themselves of the services in return for payment of money. In Turpin v Middlesbrough the premises were "buildings to which the public can resort for the purpose of having particular wants supplied and services rendered to them".

The Tribunal had previously made reference to a number of other authorities by way of a general review,[39] some of which were cases in relation to the provision of services, and others with respect to the sale of goods. In general terms, these authorities are referred to from a variety of perspectives; including the issue whether there was retail provision of goods or services, the question being whether their provision was to members of the public,[40] whether the extent of retail activity was sufficient,[41] and with respect to the requirement in the retail leases legislation that the premises be used with respect to retailing "under the terms of the lease relating to them".[42] Finally, reference is made to Stringer v Gilandos Pty Ltd,[43] in which I held that serviced apartments were retail premises but added a note of caution that characterisations of this general nature depended upon the particular circumstances.[44] None of these cases do, in my view, support the discussion which follows in the Tribunal's reasons which leads to the conclusion expressed in paragraph 62 of its reasons. There is no issue here in relation to the extent to which the Premises are or are not used for the provision of services, whatever their character, and there is no issue in relation to their provision "under the terms of the Lease".

25 Under the provisions of the Lease, the Tenant covenants with respect to use of the Premises in a number of respects. The critical provisions of present relevance are those contained in paragraph 4(a)(i) of the Lease, as follows:

Not use or permit to be used the Demised Premises or any part thereof for any purpose other than as set out in Item 11 of the reference schedule or for any residential purpose whether temporarily or permanent or as retail Premises (as defined in the Retail Tenancies Reform Act 1998) nor permit or suffer any storage space forming part of the Demised Premises to be used for any purpose other than storage.

Item 11 of the reference schedule to the Lease provides for use of premises as: "Cold and cool storage warehouse and transport facility". It was accepted that the reference to the 1998 legislation could be taken, for present purposes, to be a reference to the Retail Leases Act 2003, the Act, and that the relevant effect of this part of the use covenant is simply to constrain the permitted use to that specified in Item 11 of the reference schedule.

26 In relation to use and use under the terms of the Lease, the Defendant made some particular reference to the decision in Humphries & Cooke Pty Ltd v Essendon Airport Ltd.[45] It is true that the permitted use provisions as provided for in Item 11 do not make any reference to retailing or, for that matter, wholesaling. Similarly, in Humphries v Cooke Pty Ltd, the Tribunal Member said that "There is nothing at all about the retail provision of goods and services to anyone" in relation to a lease of an aircraft hangar used to accommodate an aircraft that was in turn used to carry the tenant's staff and materials to various locations for the purposes of the tenant's business. It is, however, clear from this decision and other authorities with respect to s 4(1) of the Act that the particular circumstances surrounding a lease and use of the premises are relevant, and indeed critical, in relation to the application or otherwise of these provisions. Indeed, this is a proposition which was strongly advanced by the Defendant during the hearing in these proceedings.

27 Turning then to the particular circumstances of these proceedings, it is clear that the Plaintiff, as Tenant, provided only services. The proposition contained in paragraph 62 of the Tribunal's reasons that the "cases" exclude from the meaning of "consumer" a person who uses a service for a business or a purpose other than for personal needs is simply not supported by the authorities. The authorities do, in my view, expressly support the proposition that "consumers" can be persons who use a service for business or a purpose other than for personal needs.

28 In Wellington v Norwich Union Life Insurance Society Limited,[46] Nathan J considered whether the office of a patent attorney was a "retail premises" for the purposes of a predecessor to the Act, namely, the Retail Tenancies Act 1986. The provisions of this earlier legislation are relevantly the same as the provisions of the 2003 legislation, the Act, which is now under consideration. The evidence in that case established that the clients of the patent attorneys were large foreign-owned chemical companies that used the advice provided by the patent attorneys in the course of their own commercial dealings. The court held that the premises were retail premises and, in reaching that conclusion, Nathan J held that a person, including a large company, could be an ultimate consumer.[47] Moreover, the fact that an ultimate consumer may use the product of the service provided to it in the course of its own commercial dealings does not deprive the ultimate consumer of that character for the purposes of the Act.[48] A perhaps unusual feature of Wellington v Norwich Union Life Insurance Society Limited was that the service, the advice, provided by the patent attorneys passed through the hands of an intermediary to the ultimate consumer. As to this aspect of that case, I made the following observations in Fitzroy Dental Pty Ltd v Metropole Management Pty Ltd:[49]

1. ... The fact that the advice of the patent attorneys may pass through the hands of an intermediary to the ultimate consumer or end user was not regarded as significant, provided it came into the hands of that person in a form that could not be amended and hence remained the product of the intellect of the deliverer. More generally, this highlights and emphasises the importance of characterising the nature of the "service" that is being provided. Thus, in the context of Wellington, it would follow that if the position was that the patent attorneys provided advice to, for example, a solicitor who would, in turn, provide advice to his or her client, the ultimate consumer, using the patent attorney's advice merely as an "input" in his or her advice, wholly or partially with additions and modifications on the basis of his or her professional opinion, the position would be different. In those circumstances the patent attorney's advice could not, in a relevant sense, be said to pass through the hands of an intermediary to the ultimate consumer. It does not, however, follow that in these circumstances the solicitor may not be regarded as the "ultimate consumer" of the service for the purposes of his or her own practice; as is likely to be the case with other "inputs" for the practice such as, for example, legal research services, stationary and office supplies.
2. Subject to the proper characterisation of the "service" that is being provided the authorities do indicate strong support for the "ultimate consumer" test as the touchstone of retailing.[50] The cases tend to be concerned with whether or not goods are being sold by retail and although the same characterisation issues as apply to services do exist, they tend not to be focused upon as the position is likely to be more obvious with goods. Thus a sale of "widget type A" from premises by A to B who, in turn, "converts" the good "widget type A" to "widget type B for sale to C would not involve the sale of "widget type A" to C as the ultimate consumer of that type of good. Depending on the nature of the goods involved these transactions may involve sale by wholesale to B and a retail sale to C - or, alternatively, two retail sales of different goods, "widget type A" to B and "widget type B" to C.[51]
3. It follows, in my view, from the application of the "ultimate consumer" test and the authorities to which reference has been made, particularly Wellingtons case,[52] that the fact that a good or a service is provided to a person who uses the good or service as an "input" in that person's business for the purpose of producing or providing a different good or service to another person does not detract from the possible characterisation of the first person (and perhaps also the second person, depending on all the circumstances) as the "ultimate consumer" of the original good or service.

29 Turning now to some of the particular features of Fitzroy Dental Pty Ltd v Metropole Management Pty Ltd,[53] a case where the issue was whether the use of premises as a function and conference centre, with ancillary services, meant that those premises were properly characterized as "retail premises" under the Act. As indicated in the passages from the judgment in Fitzroy Dental set out previously, the proper approach to this question is to precisely identify and characterize the "service" that is being provided at the premises - and, of course, in conformity with the terms of the Lease, hence the requirements of s 4(1) of the Act in this respect. The importance of this characterisation is made very clear in the application of this process in the circumstances in Fitzroy Dental; as is made particularly clear in the following parts of the judgment:[54]

1. In the present circumstances I am of the opinion that the evidence establishes that the Premises are used, under the terms of the Lease and in actual fact, for the provision of a conference centre with an ancillary café/restaurant which are provided, on a commercial basis, to a person, persons, or some corporate or other entity which uses the space and any attendant services provided at the Premises, such as café/restaurant facilities, for the purposes of a conference or function. It appears from the evidence that third parties attend conferences or functions for the purpose of education, training, general edification or enjoyment - or a combination of these things. Thus the attendees, the third parties, receive a service which is both different in nature and extent from that which is provided to the conference or function promoter or organiser. They do not receive the space, the whole of the Premises, to utilise for the provision of a conference or function, whether for profit or other reasons, indirectly commercial - such as business promotion or employee or contractor training - or for social purposes. The service the attendees, the third parties receive, involves enjoyment of the "space", the Premises, and its services, but it includes more than this alone - and, in any event, their enjoyment of the "space", the Premises, is constrained by the extent to which it is enjoyed by other attendees, third parties. The conference or function provider, on the other hand, enjoys the whole space for his, her or its particular purposes.
2. Consequently it follows, in my view, that by analogy with the authorities considered the conference or function provider is properly characterised as an "ultimate consumer" of the services provided to him, her or it at the Premises by the tenant of the Premises. These services are, in turn, an "input" into the different services provided to attendees at the conference or function but, for the preceding reasons, these are to be characterised as services of a different nature.[55] Thus there are two transactions involving the retail provision of services - first the provision of services to the conference or function provider or organiser and then the provision of different services to the attendee; though the retail characterisation of the second transaction may be affected if it is gratuitous, an issue to which I now turn.

The fallacy of conflating service provision at the relevant premises to third parties to the Lease - i.e. the consumers - with the activities or service provision by those third parties and simply treating the services provided at the relevant premises as an "input" in the third party's business arrangements is emphasised in the preceding discussion in Fitzroy Dental, particularly at paragraph 39 and with reference to paragraph 18, including the discussion with respect to Wellington v Norwich Union Life Insurance Society Limited.[56] And, repeating the passage for the purpose of emphasis and coherency in the point being made, it also follows from this analysis that: [57]

... The fact that a good or a service is provided to a person who uses the good or service as an "input" in that person's business for the purpose of producing or providing a different good or service to another person does not detract from the possible characterisation of the first person ... as the "ultimate consumer" of the original good or service.

30 Reference was also made to the judgment of the Full Court of the Federal Court of Australia in Collector of Customs v Chemark Services Pty Ltd.[58] In that case, the Court had to determine how to classify imported goods under the Customs Tariff Act 1987. The goods imported were 80 drums, each containing 250 kilograms (206 litres), of a fumigant called metham sodium solution used by professional horticulturalists. The Court had to decide whether the import was "put up in forms or packings for retail sale or as preparations". It found that the drums were for retail sale and, particularly relevantly for present purposes, said:[59]

The weight of authority seems to us to support a conclusion that the words "retail sale" have generally acquired a specialised meaning of a sale to an ultimate consumer. We do not think that the usage of the term limits such consumers to ordinary members of the public. The fact that in the present case almost all of the goods imported by the respondent were directly sold to professional horticulturalists and not ordinary gardeners as ultimate consumers is in our opinion irrelevant. Professionals can still be described as ultimate consumers.

31 For the preceding reasons, I am of the opinion that the Tribunal erred in holding that customers that used a tenant's service for a business purpose are not ultimate consumers of the service. The service was, in conformity with the permitted use provisions of the Lease, to which reference has been made, provided to those persons - whether corporations or individuals - at the Premises and in terms of that particular service "ultimately consumed" by those persons as and when the goods stored at the Premises were removed. In my view, the Defendant's submissions that these circumstances did not involve "consumption" of the services provided by the Plaintiff at the Premises should not be accepted; both on the basis of the authorities already considered and the clear analogy in this context in the use of the word "consumption", with "use" or other synonyms which might be thought appropriate with respect to the provision of services.[60] Moreover, as the services were "consumed" at the Premises, there was nothing for the recipients of these services to "resupply".[61]

32 Finally, it should be observed that it does not follow that this analysis, on the basis of the provisions of the Act and the authorities, is at odds with general principles of statutory interpretation because it may leave the word "retail" with respect to "services" in s 4(1) of the Act with little work - or little active work - to do. That it may be difficult to contemplate circumstances where the provision of services would be other than "retail" is no basis for an interpretation of these provisions of the Act at odds with the considerations discussed in these reasons and in the authorities which, in my view, indicate strongly the applicability of the "ultimate consumer" test with respect to the provision of "services"; where the nature of such services is precisely analysed. Additionally, this is consistent with the principles of statutory interpretation that words used in legislation are presumed to be used consistently.[62] Though this presumption is rebuttable, there seems little doubt that the word "retail" as used in s 4(1) of the Act is intended to bear the same meaning with respect to both goods and services.

33 Concluding this discussion reference should be made to submissions on the part of the Defendant which would apply a different approach to the interpretation of the word "retail" with respect to services in s 4(1) of the Act on the basis, broadly speaking, that this would give the word "retail" a meaning - work to do - with respect to the provision of "services". The approach advanced would consider how the premises were used by "invitees" - the tenant's customers or service users - and on this basis, it appears, characterise the services as "retail" or not depending on whether the "invitee" was a wholesaler or, put another way, whether the services are "domestic or are they business".[63] It follows the Defendant submits, that the "ultimate consumer" test has no application to services.[64] The problem with these submissions and this advocating a different approach to the meaning of the word "retail" with respect to services is that there is no basis for it in the language of s 4(1) of the Act. Rather, the language of these provisions requires, in my view, a consistent approach with respect to the meaning of "retail" as applied to both goods and services; a position which is also consistent with the general presumption that words in a statute are used consistently. This different approach is also inconsistent with both authorities, a number of which have been considered in detail, and also the language of these provisions of the Act.[65] For these reasons I reject these submissions and, in particular, reaffirm the "ultimate consumer" test with respect to both goods and services.

34 For the preceding reasons, the Tribunal erred in not holding that the Plaintiff's customers were the "ultimate consumers" of the service provided by the Plaintiff as Tenant, namely, cold and cool storage services and whatever extent use of the premises as a transport facility; uses in accordance with and as provided for under the terms of the Lease. Consequently, the premises were "retail premises" within the meaning of the Act.

35 The Tribunal decided that the Plaintiff's customers were not the "ultimate consumers" of the service provided by the Plaintiff as Tenant because they used that service for a business purpose. Whilst the Tribunal did not state expressly that this was its reasoning, it is clearly to be inferred from the finding by the Tribunal that a customer will not be an "ultimate consumer" of a service if it uses the service for a business purpose.[66] As discussed in the preceding reasons, the authorities simply do not support that proposition. Consequently, the Tribunal erred in not holding that the Plaintiff's customers were "ultimate consumers" of the service which the Plaintiff, as Tenant, was providing.

36 If the Tribunal had correctly found that the Plaintiff's customers were the ultimate consumers of the Plaintiff's service, it would also have found that the Premises were "retail premises" within the meaning of the Act because:

(a) the Tribunal was satisfied of all other matters necessary to support a conclusion that the Premises were "retail premises"; and

(b) the Tribunal made no other findings that could support a conclusion that the Premises were not "retail premises".

37 The other matters of which the Tribunal was satisfied were as follows:

(a) that the Lease required that the Tenant use the leased Premises "solely for the purpose of conducting the business or businesses permitted under the lease" (clause 4(a)(ii) of the Lease and [11] of the reasons);

(b) that the permitted use of the Premises under the Lease was "Cold and cool storage warehouse and transport facility" (Item 11 in the schedule to the lease and [11] of the reasons);

(c) that the actual use of the leased Premises by the Tenant was in accordance with the terms of the Lease (at [33] of the reasons);

(d) that the leased Premises were "open to the public" (at [32] of the reasons); and

(e) that the Tenant's customers ranged from "large primary production enterprises to very small owner operated businesses" (at [68] of the reasons).

No other finding was made by the Tribunal which could support a conclusion that the Premises were not "retail premises" under the Act. This analysis, and particularly, that contained in this and the preceding two paragraphs, and which was advocated by the Plaintiff, does not involve any re-opening of findings made by the Tribunal as to the facts - and is not a circumstance where a party in the Plaintiff's position would be required to demonstrate that there was no evidence to support the Tribunal's findings.[67]

38 For the preceding reasons, the Tribunal should have found that the Plaintiff's customers were "ultimate consumers" of the Plaintiff's, the Tenant's services and that the Premises were "retail premises" within the meaning of the Act.

39 For the preceding reasons, orders will be made that:

(2) Paragraph one of the Order of the Tribunal dated 7 November 2016 be set aside.

(3) Paragraph one of the Order of the Tribunal dated 16 December 2016 be set aside.

(4) The preliminary issue in the Tribunal proceeding, "Are the subject retail premises under the Retail Leases Act 2003?" be determined "Yes".

40 The parties are to bring in formal orders for authentication as indicated in the preceding paragraph. I reserve the question of costs and will hear the parties further in relation to that issue.

41 Finally, I should note that I do not propose to make any order remitting the further disposition of the matters the subject of this appeal to the Tribunal. This is because this appeal purely raises questions of law with respect to the application of the relevant provisions of the Act in circumstances where the relevant facts have been fully found by the Tribunal in the proceedings from which this appeal arises.

[1] Commissioner of State Revenue v Frost (2011) 83 ATR 832 at 834 [5] citing Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335-6 and Myers v Medical Practitioners Board (Vic) [2007] VSCA 163; (2007) 18 VR 48 at 55 [28].

[2] Boucher v Dandenong Ranges Steiner School Inc [2005] VSC 400; (2005) 145 LGERA 21 citing Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1 and Whitehorse City Council v Golden Ridge Investments Pty Ltd [2005] VSCA 198.

[3] (2011) 83 ATR 832 at 833-4 [3].

[4] Commissioner of State Revenue v STIC Australia Pty Ltd [2010] VSC 608; (2010) 81 ATR 682 at 687 [10].

[5] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331; Al-Hakim v Monash University (Unreported, Victorian Supreme Court of Appeal, 28 March 2003); Myers v Medical Practitioners Board (Vic) [2007] VSCA 163; (2007) 18 VR 48.

[6] See Morris v R [1987] HCA 50; (1987) 163 CLR 454 at 475.

[7] Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 at 333 [21].

[8] Morris v R [1987] HCA 50; (1987) 163 CLR 454 at 475; Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335.

[9] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335-6; Commissioner of State Revenue v Challenger Property Nominees Pty Ltd [2006] VSC 203; (2006) 63 ATR 65 at 69 [20], 77 [65] ("Challenger").

[10] [2005] HCA 40; (2005) 222 CLR 115 at 136 [64].

[11] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575, 597. Cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 348 [74].

[12] (Unreported, Supreme Court of Victoria, Ashley J, 21 December 1994) [13].

[13] (1971) 38 LGRA 6 at 18.

[14] (1980) 44 LGRA 65 at 67-8.

[15] (1985) 62 LGRA 346 at 349-50.

[16] The Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442 [59].

[17] [1999] VSCA 117; [1999] 3 VR 331.

[18] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335-6 [11].

[19] Cosmopolitan Hotel (Vic) v Crown Melbourne Ltd [2014] VSCA 353 [163].

[20] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49; (2001) 207 CLR 72 at [15]; Commissioner of State Revenue (Vic) v STIC Australia Pty Ltd [2010] VSC 608 at [9].

[21] Ovidio Carrideo Nominee Pty Ltd v The Dog Depot [2006] VSCA 6 at [59].

[22] Spilkin v Rosenberg [2011] VSCA 128 at [42].

[23] The Defendants' Submission (18 January 2017), [8].

[24] The Defendant's Submission (18 January 2017), [10]; reference referring to Commissioner of State Revenue v Antonio Arrigo [2016] VSCA 339 [44]-[48].

[25] [1980] HCA 16; (1980) 144 CLR 1 at 7.

[26] McVey v GJ & LJ Smith Pty Ltd & VWA (2012) 37 VR 433 at 445 [50].

[27] McVey v GJ & LJ Smith Pty Ltd & VWA (2012) 37 VR 433 at 439 [20]-[23] (emphasis in original).

[28] [1989] VicRp 18; [1989] VR 197 ("Hoffman").

[30] Hoffman [1989] VicRp 18; [1989] VR 197, 198.

[31] Hoffman [1989] VicRp 18; [1989] VR 197, 199.

[32] Fitzroy Dental Pty Ltd v Metropole Management Pty Ltd [2013] VSC 344, [42].

[33] See Peppercorn Nominees Pty Ltd v Loizou & Dimanno (1997) V ConvR 54-560.

[34] [1991] VicRp 27; [1991] 1 VR 333 at 336.

[35] Wellington v Norwich Union Life Insurance Society Limited [1991] VicRp 27; [1991] 1 VR 333 at 336-337.

[36] Cf the circumstances of ElecNet (Aust) Pty Ltd v Commissioner of Taxation [2016] HCA 51, [85].

[37] See C_B Cold Storage Pty Ltd v IMCC Group (Australia) Pty Ltd_ [2016] VCAT 1866, [62] at RWR 13 of the Affidavit of Richard William Ralph sworn on 12 December 2016 ("Ralph Affidavit").

[38] C_B Cold Storage Pty Ltd v IMCC Group (Australia) Pty Ltd_ [2016] VCAT 1866, [55]-[61].

[39] C_B Cold Storage Pty Ltd v IMCC Group (Australia) Pty Ltd_ [2016] VCAT 1866, [45]-[53].

[40] FP Shine (Vic) Pty Ltd v Gothic Lodge Pty Ltd [1994] VicRp 11; [1994] 1 VR 194; Cambridge Coordinates Proprietary Limited v Vikings Press Proprietary Limited [2001] V ConvR 58-553; Humphries & Cooke Proprietary Limited v Essendon Airport Ltd [2001] VCAT 2439; Melbourne Gourmet Foods v Lawther [2016] VCAT 160; and Segment Woods Pty Ltd v Brockbridge [2009] VCC 1531.

[41] Melbourne Gourmet Foods v Lawther [2016] VCAT 160 and, perhaps, Humphries & Cooke Proprietary Limited v Essendon Airport Ltd [2001] VCAT 2439.

[42] Humphries & Cooke Proprietary Limited v Essendon Airport Ltd [2001] VCAT 2439; Sofos v Coburn [1992] V ConvR 54-439.

[43] [2012] VSC 361.

[44] See Stringer v Gilandos Pty Ltd [2012] V ConvR 54-818, [68].

[45] [2001] VCAT 2439, particularly at [31]:

... Here the purpose of this hangar is storage and in my view it does not enjoy the necessary use which the definition requires to render it retail premises. If I were wrong in that there is another element of the definition which in my view is sufficient in itself to exclude these premises from the purview of the definition. The premises to be within the definition must be used in the relevant manner, not merely used simpliciter but so used "under the terms of the lease relating to them". The permitted use which we find expressed in the present lease is "aircraft hangar". There is nothing at all about the retail provision of goods and services to anyone. ... (emphasis in original).

[46] [1991] VicRp 27; [1991] 1 VR 333.

[47] Wellington v Norwich Union Life Insurance Society Limited [1991] VicRp 27; [1991] 1 VR 333 at 334-336.

[48] Wellington v Norwich Union Life Insurance Society Limited [1991] VicRp 27; [1991] 1 VR 333 at 337.

[49] [2013] VSC 344, [16]-[18].

[50] See, for example, Wellington v Norwich Union Life Insurance Society Limited [1991] VicRp 27; [1991] 1 VR 333, at 336; Sofos v Coburn (1992) V ConvR 54,439, at 65,150; and Hitech Pathology Pty Ltd v Bankberg Pty Ltd (1999) V ConvR 58-536, at 68,169; Collector of Customs v Chemark Services Pty Ltd [1993] FCA 291; (1993) 42 FCR 585; Plummer and Adams v Needham [1954] WALawRp 3; (1954) 56 WALR 1; Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244. See also Bradbrook, Croft and Hay, Commercial Tenancy Law (3rd ed, LexisNexis, 2009), at 701-708, [23.18]; and Croft, Hay and Virgona, Retail Leases Victoria (LexisNexis, Looseleaf), at [30,055] and [180,055].

[51] As to the distinction between wholesale and retail, see Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244; and see Actionco Pty Ltd v Pioneer Plasterboard Pty Ltd [2002] ACTSC 92; (2002) 170 FLR 403. See also Croft, Hay and Virgona, Retail Leases Victoria (LexisNexis, Looseleaf), at [30,055] where these cases are discussed in detail.

[52] Wellington v Norwich Union Life Insurance Society Limited [1991] VicRp 27; [1991] 1 VR 333.

[53] [2013] VSC 344.

[54] Fitzroy Dental Pty Ltd v Metropole Management Pty Ltd [2013] VSC 344, [38]-[39].

[55] As to the characterisation of "inputs" enshrining "ultimate consumption" see Fitzroy Dental Pty Ltd v Metropole Management Pty Ltd [2013] VSC 344, [16]-[19] and Wellington v Norwich Union Life Insurance Society Limited [1991] VicRp 27; [1991] 1 VR 333.

[56] [1991] VicRp 27; [1991] 1 VR 333.

[57] Fitzroy Dental Pty Ltd v Metropole Management Pty Ltd [2013] VSC 344, [18].

[58] [1993] FCA 291; (1993) 42 FCR 585.

[59] Collector of Customs v Chemark Services Pty Ltd [1993] FCA 291; (1993) 42 FCR 585 at 591, [24].

[60] Cf Outline of Defendant's Oral Submissions (31 January 2017), [11]-[13].

[61] Cf Outline of Defendant's Oral Submissions (31 January 2017), [14].

[62] Pearce and Geddes, Statutory Interpretation in Australia 8th Edition, LexisNexis Butterworths [4.6]-[4.7].

[65] Noting also in this respect, Power Rental Op Co Australia, LLC v Forge Group Power Pty Ltd (in liq) (receivers and managers appointed) [2017] NSWCA 8 (6 February 2017), particularly at [92]:

It is not permissible for a court, by a process of statutory interpretation, in effect to substitute its own view of what should be the preferable ambit of legislation or to take it upon itself to re-write legislation in a way that corrects what is thought to be an inadvertent consequence of infelicitous language in a statute...

[66] CB Cold Storage Pty Ltd v IMCC Group (Australia) Pty Ltd [2016] VCAT 1866, [62].

[67] Cf Outline of Defendant's Oral Submissions (31 January 2017), [16]; and the reference to Pin Oak Holdings Pty Ltd v Risi Pty Ltd [2016] VSC 773, [21].