Shine v Queen Victoria Market Pty Ltd [2000] VSC 320

11. The stalls are operated by the plaintiffs and other stallholders pursuant to rules.

14. The objectives of the rules are stated in Rule 3, which reads:

"3. The objectives of these Rules are to - (a) provide for the regulation and government of the Market; (b) regulate the activities of persons in the Market; (c) regulate the sale of goods and services in the Market; (d) promote the viability of, and retail competition in, the Market for the benefit of members of the public, stallholders and lessees in the Market, and the Council; and (e) encourage a favourable environment for small business persons in the Market."

18. Rule 1.2 provides that the rules constitute a contract between the parties. The rule reads:

"1.2. By accepting the allocation of a stall, a person agrees to abide by these rules which: (a) are a contract between the market operator and the stallholder; and (b) apply whether or not the stallholder pays a licence fee in advance."

22. The defendant is now planning to redevelop shed I and wishes to transfer the plaintiffs' stalls from that shed to either M shed or A shed. To that end, it has already spent some $41,000 in redeveloping I shed, and estimates it will spend an additional sum of approximately $113 ,500 doing so.

25. The reason why the defendant takes the view that the plaintiffs' stalls should be transferred to other sites in the market is that, in its view, the plaintiffs' stalls will be incompatible with the stalls to be conducted in the revamped I shed, namely, organic fruit and vegetable stalls.

28. The defendant's views in that regard appear in a letter sent by it to the plaintiffs on or about 6 February last. The letter reads:

"Relocation of Stalls Thank-you for your letter of 24 January 2000 in relation to your relocation. We have given a great deal of consideration to the proposed I Shed layout prior to initiating any discussion with traders and believe that this is the best all around solution to a range of issues we have in that area. Organic and Biodynamic produce is in a state of expansion and growth and this is likely to continue as the public become more health conscious and concerns about genetically engineered food increase. We want to give more area over to organic and biodynamic fruit and vegetables and to raise its profile in the Market. There are also presentation and housekeeping problems associated with stalls backing onto the Therry Street Plaza as well as the issues we have previously raised with you in relation to your use. Unfortunately live poultry is a diminishing use and one which is at odds with modern customer expectations. The sale of live poultry is a confronting use, which offends many customers and we receive continual complaints about its placement in I Shed. Customers express concern about cleanliness, offending odours and indeed the effects on their health given your proximity to the food they are purchasing. I have raised these concerns with the Health Department and whilst they too have expressed some concern about feathers and bird manure in proximity to food, the real issue is one of public perception. The public do not believe that current arrangements are acceptable. This places QVM in a difficult situation. We recognise that your family has traded at the market for a long period and that livestock is a traditional market use. However we feel that we cannot continue to ignore customer pressures and we have therefore offered you the opportunity to relocate to an area of the market which is less likely to cause the problems we are currently experiencing. We believe that given the limited availability of live poultry for sale at other locations and that this is a highly specialised product, we can successfully relocate you to elsewhere in the Market. Whilst we want to work with you to find a mutually agreeable position, you will appreciate that your remaining in I Shed is not an option. Once you have had an opportunity to consider my the matter, I would be happy to discuss the issue again and to explore any other options you may have."

32. The defendant's reasons also appear in a Notice of Transfer of Stallholding given to the plaintiffs on or about 6 June 2000. The notice, so far as is relevant, reads:

"THE REASON FOR THE TRANSFER: The Market Operator has required you to transfer in accordance with the Rules for Stallholders, particularly clauses 4.1, 6.1 and 14.11. The reasons for the transfer relates to the redevelopment of I Shed which either incorporates or is designed to achieve various objectives, including the following: - the promotion of the organic and biodynamic produce; - change in stall layout to reduce the overall number of stalls; - stall number reduction to refine the organic/biodynamic produce lines and relocate inconsistent produce; - implement new Stall Standards to improve significantly presentation and cleanliness; - improve outlook from and to Therry Street; - address ongoing health concerns associated with cleanliness and housekeeping problems off-putting customers; - certain physical works including: * installation of awnings; * improved lighting; * connection of electricity to stalls; * asphalting works; * works associated with stall improvements (including potential cool room installation on new concrete pads) - facilitate the promotion of the Wine Market and its integration in relation to I shed."

36. The plaintiffs claim that relocation of their stalls to other sheds at the market would have a significant financial impact upon them.

39. The matter is dealt with in paragraph 13 of the first plaintiffs' affidavit of 28 July, the relevant aspects of which read:

"13. These features would be likely to have the accumulated effect of rendering our stalls non-commercially viable for the further reasons that: (a) the public's safety concerns about asbestos have been clearly expressed to us in a petition containing over 3,000 customer and visitor signatures; (b) car traffic on pedestrian avenues is an obvious discouragement to customer traffic and particularly the children who like to visit; (c) in winter the winds sweeping across the car park would cause injury and death to our young birds. In summer the direct sunlight would damage the eggs and also cause injury and death to our young birds; (d) the absence of stalls nearby would deprive our stalls of the critical mass of customer traffic that is essential to our business; (e) the location of shed M above a grave site is a significant discouragement to Asian clientele."

43. The reference to asbestos is a reference to the asbestos lining in the roof of shed M.

46. The question of the risk posed by that asbestos is dealt with in a report obtained by the defendant from Noel Arnold & Associates dated May 2000.

49. The letter of 30 June from Arnold & Associates to the defendant which accompanied the report contains the following paragraphs:

"Asbestos fibres are bound within the cement material of the asbestos cement sheeting. Weathering is caused by chemical and physical breakdown of the external cement surface by the action of sunlight, rain and lichen and moss infestation. Whilst this weathering goes on constantly, the majority of asbestos fibres are washed down the stormwater gutters and some are blown into the atmosphere. The immediate dilution of the fibre emissions in the air is such that at ground level there would be no significant difference in air quality from any other built-up city environment."

"Shed M is in reasonable condition and the asbestos cement roof does not pose a risk in its current condition to the stall operators and visitors to the market. Ongoing maintenance should be conducted to ensure that roof leaks are sealed and guttering is kept clear of debris until the time the roof is replaced."

55. At all events, the plaintiffs now seek an interlocutory injunction restraining the defendant from cancelling, transferring or interfering with the licences of the plaintiffs to operate their stalls in their current respective locations pending the hearing and determination of the action or further order.

58. It is the case for the plaintiffs that the Notice of Transfer of Stallholding constitutes a cancellation of their licences within the meaning of Rule 11 of the Rules thereby giving them a right to appeal to an independent person to determine their dispute with the defendant pursuant to the provisions of Rule 12.

"11. Cancellation of licence 11.1 The market operator may cancel a licence: (a) if it considers that there has been:

(i) a material misstatement or concealment of fact in relation to the application for a licence; or

(ii) a substantial failure to comply with these Rules, or any other law; or

(iii) a material mistake in relation to the grant of the licence; or

(iv) a material change of circumstances which has occurred since the grant of the licence; or

(b) at the request of the licensee; or

(c) where the licensee is persistently absent from the Market; or

(d) where the licensee has sold at the Market stolen or counterfeit goods.

11.2 The market operator must notify the licensee of the cancellation of the licence and the reasons for the cancellation.

11.3 Where the market operator has reason to believe that the licensee is entitled to a partial or total refund of the fee, the market operator must refund the licensee such partial or total amount.

12.1 Any person whose licence has been cancelled or not renewed by a decision of the market operator (other than a decision based solely on the non-payment of fees, rent, dues or other charges) may appeal to the appointed independent person to be appointed pursuant to Rule 12.2 by lodging a notice of appeal with the market operator within 14 days of the decision.

12.2 As soon as practicable after the receipt of any notice of appeal under Rule 12.1 an independent person must be appointed either:

12.2.1 by agreement between the Market Operator and the person who lodged the notice of appeal; or

12.2.2 if the parties fail to nominate an independent person or cannot agree on a nominated person, the matter must be referred to the Australian Centre for International Commercial Arbitration (the 'ACICA'). Where a referral is made, the Authorised Person under the Retail Tenancies Act 1986 at the ACICA must appoint an independent person (who may be a member of the Panel of Conciliators and Arbitrators appointed pursuant to Section 22D of the Retail Tenancies Act 1986) to consider and determine the appeal.

12.3 The independent person must consider and determine the appeal in accordance with the rules of natural justice.

12.4 If the independent person determines that the appeal should be upheld (whether in whole or in part), the determination shall be substituted for the decision under appeal.

12.5 The determination of the independent person appointed under Rule 12.2 shall bind the market operator."

76. On 25 July 2000 the plaintiffs gave to the defendant what they contend was an appropriate Notice of Appeal.

79. The first point to make about the Notice of Appeal is that it is clearly out of time, assuming that is, that it is correct to say that the defendant did in fact cancel the plaintiffs' licences.

82. It was argued by senior counsel for the plaintiffs that the 14 day time limit prescribed by Rule 12.1 could only run from the date upon which the cancellation of the licences became effective - in this case 30 June 2000, not the date upon which the defendant made the decision to cancel the licences as from that date. In that regard, he points to the opening words of Rule 12.1, namely:

86. I am not persuaded that that is the correct interpretation of the rule.

89. What the rule is talking about is a decision to cancel a licence. In my opinion, it is the date of that decision which is the relevant date even though the decision made is that the licence be cancelled at some future date.

92. However, the plaintiffs in this case face a much larger hurdle. In my opinion, the Notice of Transfer of Stallholding does not have the effect of cancelling the plaintiffs' licences. What it simply does is to transfer the licences from one area of the market to another.

95. That the defendant has power to transfer stallholders from one area of the market to another in certain circumstances is clear from the provisions of Rule 14.11 which reads:

"14.11 Stallholders may be temporarily or permanently transferred, or otherwise removed from their regular stallholdings in the event of redevelopment or building and maintenance works, promotions or other organised events which the market operator may from time to time deem necessary. No claim for payment or compensation may be made for such transfer, removal or relocation."

99. In the present case, and despite senior counsel for the plaintiffs' assertion to the contrary, the transfer of the licences in question is part of the redevelopment of I shed at the market. I consider that that much is clear from the content of the affidavit of Francis James Monaghan, sworn 31 July 2000, and Exhibits 2 and 3 to that affidavit.

102. Redevelopment means nothing more than to develop anew or again. Develop means to make or become bigger or fuller or more elaborate.

105. In my opinion, the defendant's proposals concerning I shed clearly amount to a redevelopment as the material filed on behalf of the defendant demonstrates.

108. I consider that there is no serious issue to be tried in this proceeding and on that ground alone I would refuse the plaintiffs' application.

111. But even if I had been satisfied that there was a serious issue to be tried in the proceeding, nevertheless, I would have refused the application.

114. If the plaintiffs were ultimately successful in the action, any loss suffered as a consequence of the move could be easily demonstrated and they would be adequately compensated by an appropriate award of damages.

117. The plaintiffs' application will be dismissed with costs to be taxed and paid by the plaintiffs.