Shop Distributive & Allied Employees Association of NSW & Anor v Director-General, NSW Department of Commerce & Anor

Shop Distributive and Allied Employees Association of New South Wales (First plaintiff) PARTIES : Shop Distributive and Allied Employees Association, New South Wales Branch (Second plaintiff) Director-General, New South Wales Department of Commerce (First defendant) Peter J Davis (Second defendant)

Mr G Inatey SC with Mr M Robinson (Plaintiffs) COUNSEL : Mr J W J Stevenson SC with Ms C C Spruce (First defendant) Mr R M Goot AM SC with Mr D Priestley (Second defendant)

Taylor & Scott Lawyers (Plaintiffs) SOLICITORS : I V Knight (First defendant) Lander & Rogers Lawyers (Second defendant)

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

30150/08 - SHOP DISTRIBUTIVE & ALLIED EMPLOYEES ASSOCIATION OF NEW SOUTH WALES & ANOR v DIRECTOR GENERAL, NEW SOUTH WALES DEPARTMENT OF COMMERCE & ANOR

1 HIS HONOUR: On 3 November 2008 the second defendant made application to the first defendant for exemption to allow Bunnings to trade on Boxing Day and Easter Sunday. The application was made under the Shop Trading Act 2008 (the Act). The application was for exemption in respect of Easter Sunday and Boxing Day for "all Bunnings locations in New South Wales operating now and in the future". The delegate of the first defendant approved the application to open on Boxing Day, refused the application to open on Easter Sunday and imposed the condition, amongst others, that "the decision is to be reviewed in June 2009". It is evident, therefore, that in effect the only approval given was for exemption on Boxing Day 2008, although it is unclear whether in respect of Boxing Day 2009 a further application is required or the first defendant, pursuant to his undoubted powers in the Act intends to review the position. 2 The application referred to a list of stores contained in an annexure which was, it seems, at first accidentally omitted and forwarded after enquiry from the department was forwarded. That list refers to stores by suburban location or in respect of country towns by the country town itself, for example, Albury, Gosford, Orange, Wollongong and so on. 3 Detailed submissions were made by the second defendant in support of the application. Following public advertisement of the application, objections were received from the plaintiffs and from two members of the public. The plaintiffs' submission is extensive and detailed. It criticised the information contained in the application as inadequate or inaccurate and further information was provided which, it was submitted, would lead the first defendant to refuse exemptions. The application was determined on 12 December 2008. 4 Proceedings were commenced by the plaintiffs in this Court on 18 December 2008 seeking to have the decision of the first defendant's delegate declared unlawful or otherwise set aside, and further ancillary relief. There are two substantive grounds put forward in support of the summons. The first is that the application sought exemption in respect of Bunnings locations "operating now and in the future," which in respect of Boxing Day was granted. It is conceded that, for obvious reasons, no application can be made under the Act as to future, unspecified retail operations, a fortiori that no exemption could be granted for such operations. This is so self evident that it is unnecessary to further consider it. It is argued for the plaintiffs that the decision to grant exemption for Boxing Day in terms of the application cannot be severed so that the whole decision must fail. 5 Section 32 of the Interpretation Act 1987 applies to decisions of the kind made here. "Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made (1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made. (2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made: (a) it shall be a valid provision to the extent to which it is not in excess of that power, and (b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected. (3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made." 6 It seems to me that the exemption is capable of being read distributively so that, in so far as it applies to the stores in existence at the time of the application and as listed in the annexure it is a valid order. To use the language of Justice Basten in Director of Public Prosecutions v Yigit [2008] NSWCA 226 at [26] (citing Peters v The Attorney-General New South Wales (1989) 16 NSWLR 24, at 41 to 42 (McHugh J, Kirby P agreeing). - " The principle of severance applies in relation to discrete elements of an instrument which can be excised without altering the meaning and effect of the remaining provisions and without creating an instrument which might not have been made if the maker had appreciated the proper limits of his or her power." 7 In this case there is nothing in the conditions or description of the exemption which is altered if the excess material is severed, and I do not doubt that if the delegate of the first defendant had appreciated the proper limits of her power she would have nevertheless granted the exemption for the listed stores and omitted to exempt any stores not then in existence. Accordingly, the first contention put by the plaintiffs fails. 8 The second contention is somewhat less easy to determine. Section 10(3)(c) of the Act requires that in determining whether to exempt a shop the Director General must take into account, "the likely effect of the proposed exemption on the local economy, tourism and other businesses in the area". What is denoted by the word, "area" in this requirement is uncertain, although I do not think this is accidental. The relevant area will differ according to the nature of the business and, broadly speaking, the urban context in which it is carried on. It is submitted on behalf of the plaintiffs that it is impossible to "take into account" the required matters unless the actual address of the relevant shop in each location is known and, not surprisingly, this argument focused on the third matter required to be considered, namely, other businesses.

9 The application dealt with this relevant matter in the following way - "Other businesses would benefit from Bunnings being open on Boxing Day and Easter Sunday, particularly where they are located in close proximity to a Bunnings store. Furthermore, we believe that being able to promote that we are open on these days would encourage consumers to visit other businesses as well as Bunnings. At present in many instances we believe consumers presume that where larger retailers such as Bunnings are not trading, no other business is trading and as such they do not go shopping. Rather than hurt small retailers, extended and unrestricted trading has in fact resulted in the highest growth in the number of small retailers of any state in the 1997 - 2006 period, with growth in Victoria being just under 6.5%. The ability for Bunnings to trade on Easter Sunday and Boxing Day will, we believe, have an important positive impact on New South Wales economic activity, as many of our store locations are surrounded by smaller/local retailers."

10 In response the plaintiffs submitted to the Director General as follows - "(vii) Bunnings claims that "[o]ther businesses would benefit from Bunnings being open on Boxing Day and Easter Sunday". This is a blanket statement which is most certainly deficient and misleading. Bunnings stock a large range of merchandise including home hardware, outdoor and leisure products, garden and nursery products, tools, and electrical and lighting products. If the trading exemptions sought were to be granted, other businesses that sell any of these categories of merchandise that are proximately located to a Bunnings store would in fact be put at a competitive disadvantage. On the one hand, special shops that are presently entitled to trade on all restricted days would now have to directly complete with Bunnings. Affected businesses would include nurseries and petrol stations. These shops sell gardening products and gas cylinders, merchandise also stocked by Bunnings. On the other hand, those businesses currently restricted from trading on restricted days (notably competitor hardware stores) will now lose sales that they may other have taken, but for Bunnings being allowed to trade on the restricted days."

11 It will be seen that neither the second defendant, on the one hand, or the plaintiffs, on the other, descended into considering any particular address, although I should add that in respect of shops in what might be called State border locations particular considerations were said to apply. It seems that the plaintiffs had not then perceived the difficulty now presented to me as fatal to the propriety of the grant of the exemption, namely that the information provided in the application was, because of its lack of geographical specificity, inadequate to permit any proper consideration of section 10(3)(c). 12 It seems to me that this argument fails. Given the wide character of the discretion and the multiplicity of circumstances in which a shop may carry on business and be permitted to operate on an exempted day, the Director General was entitled to take a broad view as to what is conveyed by the phrase "businesses in the area" so that his or her delegate was entitled to exercise a realistic and commonsense judgment of the likely effect on other businesses which did not necessitate a knowledge of what precisely were the businesses in the immediate vicinity of the shop and the way in which they might precisely be affected. Broadly speaking, commonsense suggests that the presence of potential customers attracted by the open Bunnings store would be advantageous to other nearby businesses. It could also be that other hardware stores nearby which were also open could be adversely affected but, since they either had or would need to get an exemption also, it is difficult to see the basis upon which they might be given competitive preference over Bunnings. Such considerations as these are not or only very slightly affected by location and, if the Director General or his delegate were to consider that assessing an application in this way was sufficient then - providing it was a conscientious decision - I am unable to accept that it would be self-evidently a failure to comply with the Act. In short, s 10(3)(c) focuses on general matters as to which a general understanding of the factual context would be sufficient, the identification of particular suburbs of Sydney, and of particular country towns would be sufficient to my mind for the Director General, or his delegate, to properly consider the requirements of the paragraph if he or she thought it appropriate to do so in the particular case. If the decision maker thought that further information was necessary, then of course the decision maker would be obliged to obtain it. 13 The plaintiffs have been unable to identify any particular matter which, had it been known, might have led to a different outcome or might have been at least influential in the ultimate decision. I do not accept that there is evidence that the delegate considered the application as a whole and paid, as seems to be submitted, no attention to the geographical locations which were identified by the list which was later supplied - after all, that list was supplied following an inquiry from the department. I am not prepared to conclude that the decision maker did not have adequate information upon which to consider all the statutory requirements set out in section 10(3), still less to conclude that she did not give adequate consideration to the matters in s 10(3)(c). It may be that another decision maker would have wanted further information or that further information might have been useful (although counsel appearing for the plaintiffs was unable to satisfactorily articulate any such utility) but that does not establish that the present decision was made on inadequate grounds or involved a failure to properly consider the statutory requirements. 14 It is important to note that I am not deciding whether or not the exemption should have been granted. I am simply deciding whether on the material available an adequate consideration of a statutory criteria was possible. I am content to do this on the application provided on the one hand and the objection on the other, as indeed, have been the parties. But it is obvious that the Department has available a great deal of commercial information about undertakings such as that of the second defendant in this State, and it is reasonable to suppose that that general information would be available to the decision maker. I simply mention this so that it is not assumed that I am acting altogether in some kind of artificial world framed by the written application on the one hand and the objection on the other. However, dealing with the matter on the basis of those two documents, it is plain to me that there was indeed adequate material for the purpose of permitting a proper decision to be made. 15 A question was raised by the second defendant as to the standing of the plaintiffs to bring these proceedings. In the result it is not necessary for me to come to a final conclusion on that matter, but it seems to me on the face of it that the Union, having members undoubtedly effected by whether an exemption be granted or not, has a sufficient special interest in the proper determination of the question to give it standing in proceedings of this kind. Section 13 of the Act makes it clear that any exempted shop can be staffed only by persons who have "freely elected to work on that day". There are of course many more ways than a direct order to influence a worker to work when he or she might prefer not to and, in the nature of things, the statutory requirement of voluntariness must be difficult to police. In this respect, unions serve a very important public interest in ensuring on their members' behalf that provisions such as section 13 are complied with by employers. This duty, primarily to its members but also in the public interest, seems to me to give it standing in proceedings such as these. That said, I am not expressing a concluded view on the matter. 16 It follows that the summons must be dismissed.

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