Mr C. Northrop of Counsel, instructed by Rigby Cooke

1 This is the third major hearing relative to the tenancy of Westgate Battery Company Pty Ltd from GCA Pty Ltd at 71 Pier Street, Altona. On 12 August 2005 I published reasons in proceeding R147/2004 [2005] VCAT 1647 relative to a number of issues of dispute between the parties principally centring on the fitness and repair of the Pier Street premise.

2 On 4 October 2005 Senior Member Lothian published reasons for decision relative to a dispute between the parties as to the validity of a purported exercise of option to renew lease by Westgate.

3 Mrs Lothian declared:

1. It is found and declared that the applicant is not a party to exercise the option to renew the lease on 29 June 2005 and has failed to do so effectively and alternatively that the respondent is not obliged to renew the lease between the parties.

2. Costs are reserved and there is liberty to apply.

4 Mrs Lothian's determination related to issues raised by Westgate in its amended points of claim filed 29 August 2005. The background to Westgate's tenancy is to be found in my earlier reasons which background I incorporate by reference.

5 At paragraph 8 of the amended points of claim, Westgate asserted that by notice dated 29 June 2005 it renewed its lease for a further term of three years commencing 30 September 2005. Westgate sought a declaration to this effect. In its amended defence filed 7 September 2005 GCA admitted that the notice of 29 June 2005 had been served upon it. It denied that there had been an effective renewal of the lease asserting that Westgate had breached the following covenants in the lease:

(a) The covenant to pay rent without deduction monthly in advance on the 30th of each month.

(b) The obligation to pay or reimburse within seven days of request insurance premiums for policies taken out by GCA.

(c) The obligation to pay a security deposit of $2,000 and maintain it in that amount.

6 GCA said its obligation to renew the lease for a further term was conditional in accordance with Clause 12.1 of the relevant lease upon the following:

(i) There were no unremedied breaches of the lease by Westgate of which GCA had given Westgate written notice.

(ii) Westgate had not persistently committed breaches of the lease of which GCA had given notice during the term.

(iii) Westgate requested the renewal of not more than six months nor less than three months before the end of the term.

7 GCA asserted that by reason of these breaches it was not obliged to renew the lease. As to rental payments it asserted that Westgate had repeatedly failed to pay rent as required.

8 In its points of reply Westgate said that Section 27(2) of the Retail Leases Act 2003 restricted the circumstances in which GCA could refuse the exercise of Westgate's option to circumstances where:

(i) Westgate had not remedied any default under the lease about which GCA had given Westgate written notice or

(ii) Westgate had persistently defaulted under the lease throughout its term and GCA had given Westgate written notice of the defaults.

and that neither of these circumstances existed when Westgate gave its renewal notice.

9 As to the alleged failure to pay insurance premiums, Westgate said that by virtue of Section 20A of the Retail Tenancies Reform Act 1998 Westgate was under no obligation to reimburse the insurance premium in the absence of a written estimate of outgoings given to it one month before each of the relevant accounting periods which notice had not, it alleged, been given.

10 In her determination, Mrs Lothian held that Section 27(2) of the Retail Tenancies Act 2003 had no application to the renewal or purported renewal of Westgate's lease. She held that this provision applied only where a retail tenancies lease governed by the Retail Leases Act 2003 viz. one entered into after 1 May 2003 was up for renewal pursuant to the terms of an option. It was common ground between the parties that the lease containing the relevant option to renew is governed not by the 2003 Act but by the 1998 Act, hence Mrs Lothian concluded that Section 27(2) was irrelevant. She decided therefore that the rules governing the exercise of the option to renew were those laid down by the relevant clause in the lease viz. Clause 12.1, (the terms of which were summarised in GCA's defence referred to above) and the principles expounded by the Full Court of the Supreme Court of Victoria in Stillwell and Co Pty Ltd v Budget Rent A Car [1990] VicRp 52; [1990] VR 589. The Full Court there held that the preferred analysis of an option to renew a lease was that it constituted an irrevocable offer given by the landlord for value which could be effectively accepted only strictly in accordance with the terms of the option clause. Mrs Lothian held that there were no unremedied breaches of which GCA had given Westgate written notice as at 29 June 2005. She found that there were breaches existing as at that date but those of which notice had been given by GCA had been remedied.

11 Next Mrs Lothian found that Section 20A of the Retail Tenancies Reform Act provided an answer to the demand for reimbursement by GCA of an insurance premium which it had paid. She concluded that in the absence of the provision by GCA of a written estimate of outgoings in accordance with Section 20A there was no liability on Westgate to make the reimbursement. As to the security deposit, Mrs Lothian likewise declined to find that there had been a breach of lease by Westgate. There had been a number of demands by GCA on Westgate to pay the $2000 amount shown in the schedule as being the level of the security deposit. It appeared in the evidence before Mrs Lothian however that the initial security deposit had been paid by the previous tenant from whom Westgate had taken an assignment of lease. The amount of that security deposit had been taken by GCA to satisfy an unpaid rental obligation of the previous tenant. Mrs Lothian said at [49]:

If the landlord had made a written demand for $2000 to restore the deposit, the tenant would have been in breach of the lease on 29 June 2005, but the landlord did not do so. Because of lack of written notice, the failure to restore the security deposit is not a breach which prevents the tenant from exercising the option to renew the lease.

12 She found that the demands made by GCA gave the appearance that no security deposit at all had been paid, a position which was clearly incorrect.

13 Finally, Mrs Lothian found that there had been a persistent failure by Westgate to pay its rental on time. At [55] of her reasons Mrs Lothian said:

The landlord has not given notice of every breach of the obligation to pay rent, and the notices have not stated that the failure is 'persistent', but it is considered that the notices, even though only of three months consecutively, are sufficient to draw to the attention of the tenant the landlord's insistence that rent be paid on time, and are therefore sufficient to draw the tenant's attention to a persistent breach under the lease.

Had the S.27(2) of the 2003 Act applied, it is possible that the notices would not have been sufficient because, as Mr Hanak argued, 'written notice of the defaults' appears to be in all defaults relied upon, in the 2003 [scil Act] requires not just persistent defaulting, but persistent defaulting throughout the term of the lease.

15 Westgate had sought leave to appeal from Mrs Lothian's determination but that leave application had been stayed.

16 On 22 November 2005 the Retail Leases (Amendment) Act 2005 received Royal Assent. Section 42 of that Act inserted a new sub-section (3A) to the Retail Tenancies Reform Act as follows:

(3A) If a retail premises lease contains an option exercisable by the tenant to renew the lease for a further term, the only circumstances in which the option is not exercisable is if-

(a) The tenant has not remedied any default under the lease about which the landlord has given the tenant written notice; or

(b) The tenant has persistently defaulted onto the lease throughout its terms and the landlord has given the tenant written notice of the defaults.

17 It will be seen that this provision is to the same effect as Section 27(2) of the 2003 Act. It is also to the same effect as Section 18(5) of the Retail Tenancies Reform Act 1998 before it was amended by the Retail Leases Act 2003, Section 106 with effect from 1 November 2003.

18 Westgate commenced the present proceeding on 17 November 2005. This proceeding was issued before Royal assent was given to the 2005 Amendment Act. Paragraph 10 of an affidavit accompanying the application by Westgate's solicitor asserted that the 2005 Amendment Act had passed through all stages in the Parliament by 16 November 2005. The points of claim sought 'a declaration that Westgate has renewed the lease for a further term pursuant to [its notice dated 29 June 2005]'.

19 This proceeding was fixed for an early hearing on the basis that the evidence to be considered would be the witness statements filed in R147/2004, all exhibits and a transcript of the hearing before Mrs Lothian.

20 When the matter came on before me, Mr Northrop who appeared for GCA sought to tender a bundle of the tax invoices issued by GCA's managing agents to Westgate during the term of the lease. Mr Hanak on behalf of Westgate objected to my receiving this additional evidence on a number of grounds. I stated that should it be necessary to do so, I would rule in my final determination as to whether that additional evidence should be received.

21 In the most unusual circumstances attending this proceeding the respondent's major submission was that the proceeding should not be entertained at all. Necessarily the applicant's leading contentions were designed to meet this attack. In the circumstances it is convenient to turn first therefore to the respondent's arguments.

22 Mr Northrop on behalf of GCA contended that the doctrine of res judicata barred the bringing of the present application. He said that the doctrine here applied 'in its purest form'.

The cause of action relied upon, namely the renewal of the lease based on a notice dated 29 June 2005, is identical [to the cause of action considered and determined by Mrs Lothian in R147/2004].

23 The orders made by Mrs Lothian, he submitted, caused this cause of action to merge in the adjudication. He referred to Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 531-2; Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, 597; Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502. He said that if the declaration sought in the present proceeding were made it would mean that there would be conflicting orders of the Tribunal 'one of the fundamental concerns informing this area of the law'.

24 Further, Mr Northrop contended that the dispute between the parties as to the validity of Westgate's actual or purported exercise of option to renew its tenancy had been determined in the previous proceeding, hence there was no dispute between the parties and the Tribunal had no jurisdiction under Part 10 of the Retail Leases Act because no dispute remained unresolved.

25 Next Mr Northrop submitted that the previous term of Westgate's lease with GCA had expired prior to the enactment of the 2005 Amendment Act. At that stage according to Mrs Lothian's determination, Westgate was a tenant from month to month in accordance with the overholding provision of the expired lease. He continued:

A tenancy from month to month is not a retail premises lease because it is not for a period of at least a year. When the changes effected by the 2005 Act came into effect, there was not retail premises lease between the parties upon which the change could operate.

26 Next, Mr Northrop placed reliance upon Section 14(2) of the Interpretation of Legislation Act 1984:

(b) expires, lapses or otherwise ceases to have effect -

the repeal, amendment, expiry, lapsing or ceasing to have effect of that Act or provision shall not, unless the contrary intention expressly appears -

(c) revive anything not in force or existing at the time at which the repeal, amendment, expiry, lapsing or ceasing to have effect becomes operative;

(d) affect the previous operation of that Act or provision or anything duly done or suffered under that Act or provision;

(e) affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision;

(f) affect any penalty, forfeiture or punishment incurred in respect of an offence committed against that Act or provision; or

(g) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as is mentioned in paragraphs (e) and (f) -

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if that Act or provision had not been repealed or amended or had not expired, lapsed or otherwise ceased to have effect.

27 Mr Northrop said that he placed particular reliance upon paragraphs (e) and (g). He said that:

If the tenant has a right to renew the lease it is based on the notice dated 29 June 2005. The right is to be determined by the state of law as it existed at that date. There is no express indication in the 2005 Act that the changes to the 1998 Act are to revive rights which had ceased to exist prior to the changes.

28 Mr Northrop said that even in the absence of the doctrine of res judicata there was an issue estoppel. Mrs Lothian had determined at [57] of her determination that there had been persistent breach of the lease by the tenant failing to pay rent on time 'of which the landlord has given the tenant notice' therefore he said the doctrine of issue estoppel would preclude Westgate 'from contending that there have not been persistent breaches of the lease throughout its term of which [Westgate] was given notice'. He referred to Clancy v Santoro [1999] 3 VR 783, 793 ff.

29 Mr Northop said that a valid exercise of the option to renew by Westgate required strict compliance with the option clause in the lease, namely Clause 12.1 'the doctrine of waiver does not apply and if at the time of the exercise there is an existing breach for which an action would lie, the tenant cannot accept the offer of a new lease'. He referred to B.S. Stillwell & Co Pty Ltd v Budget Rent A Car System Pty Ltd [1990] VicRp 52; [1990] VR 589, 594; Finch v Underwood (1876) 2 ChD 310. The entitlement of a tenant to renewal he said 'is to be assessed at the time of its exercise'. He referred to MacDonald v Robins [1954] HCA 5; (1954) 90 CLR 515, 519 per Dixon CJ. He said a number breaches of the lease existed as at 29 June. There had been a failure to pay insurance (despite what Mrs Lothian had held in her determination) Mr Northrop said that Section 20A of the Retail Tenancies Reform Act 1998 as inserted by Section 106 of the 2003 Act had no application. He said 'no estimate was required until a month prior to the commencement of the next accounting period after 1 November 2003 [the commencing date of Section 20A]'. The insurance premium in question related to a period commencing 17 March 2004 'which is well prior to one month before the commencement of the first accounting period after 1 November 2003'. Therefore he said Westgate's obligation to pay the insurance premium had crystallised before the relevant date for the purposes of Section 20A. He said there was also a breach of the security deposit clause. The original security deposit had been exhausted to meet a rental default of the previous tenant which had assigned the lease to Westgate. GCA had demanded payment of the security deposit on a number of occasions but the amount had not been paid. Finally he said there had been a failure to pay the rent punctually and in accordance with the terms of the lease. In addition to the three demands for compliance with this covenant placed before Mrs Lothian, Mr Northrop relied upon the bundle of tax invoices which he tendered as further evidence in this proceeding on behalf of his client. Each of these tax invoices had provision for and many contained references to arrears of rental.

30 Hence, Mr Northrop submitted that even if the 2005 Act applied and this proceeding were competent, the result would be the same as the one reached by Mrs Lothian viz. that the purported exercise of option was ineffective.

31 Mr Hanak on behalf of the applicant referred to the famous analysis of Sir Owen Dixon in Blair and Curran [1939] HCA 23; (1939) 62 CLR 464, 532 where His Honour distinguished between res judicata and issue estoppel. He said that since Westgate's application was refused 'there was no merger of the claim in the judgment. If the doctrine of res judicata operates, it does so as an estoppel only.' He referred to Macquarie Bank Limited v National Mutual Life Association of Australia Limited (1996) 40 NSWLR 543, 556-7. He noted that the doctrine of res judicata was supplemented not only by the doctrine of issue estoppel but also by the so called Anshun principle. He referred to Port of Melbourne Authority Pty Ltd v Anschun Pty Ltd (1981) 174 CLR 598; Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100 and the Macquarie Bank case (1996) 40 NSWLR 543, 558 and 589 per Clarke JA.

32 As to res judicata he said that this doctrine had no application in the present circumstance because the cause of action advanced in this proceeding was not the same one as the cause of action determined in the earlier proceeding. He referred to Blair v Curran and continued:

For this purpose, the expression "cause of action" encompasses both the facts a party must prove and the right to which that party is entitled as a result of these facts.

33 He referred to Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (1993) 115 ALR 337, 388 and Anshun (1981) 174 CLR 589, 610-11 per Brennan J as he then was.

34 The cause of action determined in the earlier proceeding by Mrs Lothian, he said, has to be identified by reference to the pleadings. He referred to Clauses 8 and 9 of the amended points of claim and paragraphs 8 to 14 of GCA's amended points of defence. In its points of reply he said Westgate raised and contended for the application of the Retail Leases Act 2003. There had been no pleaded contention that the Retail Tenancies Reform Act 1998 had any application to the validity of the purported exercise of option. Since what is now Section 18(3A) of the 1998 Act had not been enacted by Parliament when Mrs Lothian published her determination it was unsurprising that she had not purported to consider what effect that provision would have or whether it applied to this fact situation.

35 Mr Hanak said that the present proceeding was brought by Westgate to vindicate a statutory right created by Section 18(3A) of the Retail Tenancies Reform Act which by virtue of its retrospectivity was regarded as having existed 'on and from 15 April 2003'. This right, he said, was separate and distinct from and displaced the Common Law or equitable right arising from the contract between the parties to renew the lease. He referred to the judgment of Hayne J then a judge of the Supreme Court of Victoria in Commonwealth Bank of Australia v Figgins Holdings Pty Ltd [1994] VicRp 72; [1994] 2 VR 505, 512-3. The situation therefore stood in contrast to the Common Law or equitable position unregulated by statute considered by the Full Court in the B.S. Stillwell case. He said that given that Mrs Lothian was not considering the application as a Section 18(3A) of the 1998 Act, she did not make the findings of fact necessary to consider the effect of that sub-section.

36 As to issue estoppel Mr Hanak said that it did not apply to the determination as a whole but only with regard to particular issues. It applied only to those issues which were fundamental to the determination. He referred to Spencer Bower, Turner and Handley Res Judicata (3rd Ed 1996) paragraphs 182 and 201; Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 532. An issue estoppel would arise only where a determination could not stand without the determination of the particular issue. A practical means of applying that test was, he said, to ask whether it would be possible for a dissatisfied party to appeal against the relevant finding. He referred to Murphy v Abi Saab (1995) 37 NSWLR 280, 288. Mr Hanak said that the fundamental issues raised by the present proceeding, namely the application of Section 18(3A) of the 1998 Act and whether GCA gave Westgate 'written notice of the persistent defaults throughout the term of the lease' had not been determined by Mrs Lothian.

37 Further, he said that even if the doctrine did apply it included an exception for special circumstances. He referred to a decision of the House of Lords in Arnold v National Westminster Bank PLC [1991] 2 AC 93, 104-5, 107, 109. Whilst the Arnold's case doctrine of special circumstances could not apply to res judicata, Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502, 509, he said there was no reason why the doctrine could not be applied as an exception to issue estoppel. Mr Hanak conceded that some Australian authority doubted the correctness of Arnold's case. He referred to the judgment of Briggs v Hall (unreported) 8 November 1994 (Batt J) BC 9401392; O'Toole v Charles David Pty Ltd (1991) 171 CLR 232, 259 per Brennan J (as he then was). The special exception doctrine was, he said, applied by Eames J (as he then was) in Petrie v Linsley (unreported 16 May 1995) VC 950 3356. On appeal [1998] 1 VR 427, 441, 449 Hayne JA (as he then was) expressed no opinion but Callaway JA doubted the correctness of the doctrine. Mr Hanak said that the doctrine was applied by Gillard J in the Supreme Court Trial Division in Kingston City Council v Monash City Council [2001] VSC 41, [107] - [108] and [127].

38 Mr Hanak said that the special circumstances in the present case flowed from the fact that Section 18(3A) was inserted to cover a legislative error. The same provision had appeared in the 1998 in its original form and appeared in the 2003 Act, hence the inference was open that its omission from the revised version of the 1998 Act was a simple mistake which was retrospectively corrected by Parliament in the 2005 Act. He said that if leave to appeal were granted in the earlier proceeding it would be unlikely that the Supreme Court on appeal would apply the 2005 Act. He referred to Clean Ocean Foundation Inc v Environment Protection Authority [2003] VSC 335 [19] - [20]. Westgate would suffer significant prejudice if the legislative error leading to what he said was the wrong decision by Mrs Lothian were not corrected.

39 Mr Hanak said there could be no question of the application of Anshun estoppel against Westgate. A sub-section not enacted by Parliament at the time of the final hearing in the earlier proceeding could not reasonably have been relied upon. In any event if Anshun estoppel could be applied there would be a special circumstances exception. He referred to Stuart v Sanderson (2000) 175 ALR 61, 688-9; Port of Melbourne Authority v Anshun Pty Ltd (No. 2) [1981] VicRp 9; [1981] VR 81, 89; BC v Minister of Immigration [2002] FCAFC 221 [30]; cf Spencer Bower, Turner and Handley Res Judicata (3rd Ed 1996) 381.

40 Mr Hanak said no effective reliance could be placed on Section 14 of the Interpretation of Legislation Act:

This section operates "subject to contrary intention". The retrospective nature of the 2005 Act is evidence to the contrary intention. The introduction to the Retail Leases Act of a further provision to be inserted into S.105 of that Act immediately prior to its commencement, demonstrates that the Parliament intended that amendment to affect the "previous operation" of the Retail Leases Act.

41 Argument before me seemed to concentrate upon the issue of whether Mrs Lothian's earlier determination constituted a res judicata. Where as, here, we are dealing with a Tribunal determination purporting to resolve a dispute between private corporate individuals based upon the application of the law to particular circumstances in the past, there is no reason to think that since this was a Tribunal as distinct from a Court determination it is any the less capable of creating a res judicata, A Lambidis v Commissioner of Police (1995) 37 NSWLR 320. Where however the Tribunal determination is an administrative review of the exercise of a statutory discretion such as to grant or refuse a planning permit Cook v Faithland Inc (1993) 79 LGERA 308 it would seem there would be no res judicata. The question whether in this case a res judicata has been created which would bar the bringing of the present proceeding would seem to depend upon whether the claim by Westgate here is based on the same cause of action as its claim in the previous proceeding. To decide in a particular case whether the same cause of action is being invoked in a new proceeding as has already been determined in a previous one can be difficult. This is testified to by a fact that the relatively straightforward question whether the determination of a property claim arising out of a traffic accident creates a res judicata affecting a purported subsequent claim for personal injuries arising out of the same accident has set the English, Victorian and New South Wales Courts of Appeal at sixes and sevens amongst themselves and the one court with another over a period of more than a century. Brunsden v Humphrey (1884) 14 QBD 141; Linsley v Petrie [1998] 1 VR 427; Tiufino v Warland [2000] NSWCA 110; (2000) 50 NSWLR 104. Mr Hanak's submission is that what his client seeks to vindicate in this proceeding is a new separate statutory entitlement to renew its lease based upon the retrospective effect of the 2005 Act - A New Subject Matter and A New Cause of Action. In contrast Mr Northrop lays emphasis upon the fact that both proceedings call into question the validity of a purported renewal of the same lease pursuant to the same option reserved in the lease and by virtue of the same notice. He concludes therefore that the same cause of action is being invoked.

42 Nevertheless, there is in my view a logically anterior question which is whether in the circumstances the retrospective amendment effected by 2005 Act can apply to the present dispute which has already been the subject of a resolution by a Tribunal of competent jurisdiction.

43 Giving the new sub-section a commencement date on 15 April 2003 (see Section 2(4) and 42 of the 2005 Amendment Act) no doubt in a general sense rebuts the presumption against giving retrospective effect to amendments to substantive as distinct from procedural law deriving from the Common Law and Section 14 of the Interpretation of Legislation Act. Section 14(2) of the Interpretation of Legislation Act 1984 however contains a number of presumptions. There are five presumptions set out in lettered paragraphs (c) to (g) and a further presumption in the closing paragraph beginning 'in any such investigation, legal proceeding ...'. It by no means follows that the rebuttal of one or more of these presumptions entails the rebuttal of all.

44 In Henderson v Read [1993] VicRp 37; [1993] 1 VR 537 Mr Henderson had been charged with offences relating to his blood alcohol level under the Road Safety Act 1986. When the matter came on for hearing in the Magistrates Court, Mr Henderson's Counsel submitted that there was no case to answer because, he submitted, the requirement necessary to render the certificate proving the result of the breath test to which Mr Henderson had been subjected had not been satisfied so the certificate was not admissible in evidence. The Magistrate reserved his decision. Meanwhile, a judge of the County Court upheld a similar submission in a case known as Curmi v Matthews. Parliament enacted the Road Safety (Drivers) Act 1991 which amongst other things purported retrospectively to validate certificates back to a date prior to Mr Henderson's breath test. When the matter came back on for hearing some 15 months after the Magistrate had reserved he concluded that the no case submission must necessarily be rejected in light of the retrospective legislation. On appeal Nathan J held that despite the retrospective nature of the 1991 Act, Mr Henderson had an accrued right to have his no case submission disposed of in accordance with the laws as it stood when the submission was made. He reached this conclusion despite the fact that the transitional provisions of the 1991 Act specifically provided that Curmi's case itself was not affected. The transitional provision Section 22(4) also provided that the retrospective provision did not affect the rights of any person in a proceeding determined in the Magistrates Court on or before 24 April 1991. His Honour said that any change in the law to divest Mr Henderson of his right to have his no case submission determined in accordance with the laws that then existed 'would have compelled expression in actual terms or so pellucidly to be beyond question'. [1993] VicRp 37; [1993] 1 VR 537, 545. His Honour reached this conclusion despite the fact that there were as previously noted express transitional provisions which dealt with case and a no doubt large number of proceedings in the Magistrates Court but by their terms did not extend to Mr Henderson's case because his case had not been as at the relevant date.

45 By way of contrast in Bawn Pty Ltd v Metropolitan Meat Industry Board (1970) 92 WN 823 the Metropolitan Meat Industry Board had retained and sold certain offal and meat being part of animals belonging to Bawn Pty Ltd which had been slaughtered by the Board. The High Court held that a Board by-law which purported to authorise this retention was void and of no effect. C.J. Burland Pty Ltd v Metropolitan Meat Industry Board [1968] HCA 77; (1968) 120 CLR 400. The New South Wales Parliament enacted the Meat Industry (Amendment) Act 1968 which provided that all parts of any animals which had been retained by the Board prior to 10 December 1968 became its property and were deemed to have been lawfully retained by the Board on 10 December 1968 Bawn Pty Ltd sued the Board for conversion. The New South Wales Court of Appeal, Sugerman P, Asprey and Mason JJA held that Parliament had shown a clear intention to take away Bawn's existing cause of action and that its claim for conversion must fail. Bawn Pty Ltd relied upon a dictum of Sir George Jessel MR in the case In re Suche and Co Limited (1875) 1 ChD 48, 50 where the learned Master of the Rolls stated:

It is a general rule that when the legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to depending actions, do not affect them.

46 The Court in Bown held that Sir George's dicta went too far. The Court approved the approach of Lord Evershed MR in Hutchinson v Jauncey [1950] 1 KB 574, 579 where his Lordship said:

... it seems to me that, if the necessary intendment of the Act is to affect pending causes of action, then this Court will give effect to the intention of the legislature even though there is no express reference to pending actions.

47 Mr Hanak submitted that Henderson v Read provided no useful guidance in the present proceeding for a number of reasons. First, he said that the amendment in Henderson v Read was regarded by Nathan J as a procedural one, whereas the retrospective amendment here was clearly a change to the substantive law. Further, he said that coming from the criminal context and entailing a criminal defendant's right to have a no case submission dealt with in a particular way the decision provided no guidance for the purposes of the present dispute.

48 Neither Counsel suggested that the Parliamentary debates on the 2005 amendment would shed any light on these matters. There is nothing in the Second Reading Speech which deals with the issue I have to consider.

49 Leaving to one side the question of 'pending actions' in the sense of proceedings already commenced in the Tribunal or perhaps matters that have been brought in accordance with Part 10 of the Retail Leases Act before the Small Business Commissioner the retrospective operation given to Section 42 of the 2005 Act would be pointless and achieve nothing if it did not move the 'goal posts' for landlords and tenants retrospectively. So to conclude, however, does not rebut all of the presumptions established by Section 14(2) of the Interpretation of Legislation Act. For instance, the retrospective operation of the Act would in my view, enable a tenant whose actions would have led to an effective renewal of his lease in accordance with Section 18(3A) had it been in force in June 2005 to have the benefit of that regime and an effective renewal of lease even although the sub-section was not in force in June 2005 and had not even been passed by Parliament at that stage. There is no reason to think that a proceeding in this Tribunal would not be a 'legal proceeding' for the purposes of Section 14(2)(g) of the Interpretation of Legislation Act. Whether it would amount to 'affecting' a legal proceeding where the legal proceeding is pending and undetermined and the substantive rules by which it is to be determined are changed, I need not consider. In my view it clearly would amount to 'affecting' a legal proceeding where the proceeding had been completed and determined and other than by the appeal process, the result of that proceeding was either directly or indirectly reversed. This is in substance what Westgate is seeking to achieve here. To adapt the words of Nathan J this result can be achieved only when it is 'pellucidly clear'. Whilst the 2005 Act does not have a transitional provision such as the amending act considered by Nathan J preserving the outcome of proceedings previously determined, to regard the amendments affected by the 2005 Act as potentially having that affect could create legal chaos. The 2005 Act consists of a miscellany of amendments many of them retrospective. Some according to eminent commentators such as Dr Croft SC have been made in response to decisions of this Tribunal. Are all these decisions on issues such as for instance the landlord's obligation to repair and its extent which are retrospectively re-visited in the statute to be laid open to a re-determination by fresh proceedings? The present case albeit not in a criminal context is a stronger one against Westgate than was Henderson's case. In Henderson the proceeding remained undetermined when the retrospective statutory amendment was passed by Parliament and received Royal Assent. In Westgate's case it had received an adverse determination which was authenticated and published prior to any legislative action.

50 If the stay on Westgate's leave to appeal application is removed and the Supreme Court grants leave, it will be a matter for the Supreme Court to determine upon the hearing of that appeal whether the new Section 18(3A) is to be given effect to or not. The speech of Lord Denning in Attorney-General v Vernazza [1960] AC 965, 977 and the determination of the House in that case indicate that where a clear legislative intention is shown the law may be effectively changed between primary determination and the hearing of an appeal. In Vernazza's case after the decision at trial, a legislative amendment gave the High Court of Justice in England more extensive powers to deal with a vexatious litigant, which Mr Vernazza had been declared to be, than had been exercisable by the Court at the time of the trial. The House of Lords held that the Court of Appeal was entitled, if it saw fit to exercise those more extensive powers when it heard the appeal. As to what the situation would be for an appeal from No. R147/2004 I need express no opinion.

51 Since I have concluded that Section 18(3A) of the Retail Tenancies Reform Act 1998 the provision upon which this proceeding relies, does not and cannot apply to the present dispute, this proceeding must fail. It is unnecessary for me to express any views on the interesting points which have been argued relative to res judicata and issue estoppel.