Wy Trading Pty Ltd v Wang

REASONS FOR DECISION 1The Applicant is the lessee of premises located at 130 Botany Road, Alexandria, New South Wales ("the premises"). The Respondents are the owners and lessors of the premises. 2The subject lease agreement relating to the premises commenced on 14 September 2009 and terminated on 13 September 2012, and contains two option periods. There is said to be a dispute between the parties as to whether or not the Applicant has validly exercised its option to renew the lease, but that dispute is not the direct subject of this decision. 3The Application which was filed in these proceedings on 12 July 2012 seeks an interim order restraining the Respondents from attempting to re-take possession of the premises, a declaration that the Applicant is entitled to possession of the premises, an order that the Respondents pay the Applicant damages in the sum of $400,000, and other orders declaring the Applicant's entitlement to quiet enjoyment of the premises and restraining the Respondents from interfering with such quiet enjoyment. 4When these proceedings first came before the Tribunal for a Directions Hearing on 2 August 2012, the Respondents contended that the Tribunal did not have jurisdiction to hear or determine the subject dispute because the agreed and actual use of the premises pursuant to the lease is as a brothel; the Respondents submit that, because of this use, the premises are not a "retail shop" for the purposes of the Retail Leases Act 1994. At the Directions Hearing, the Respondents made an open offer to allow the Applicant quiet use and enjoyment of the premises until 13 September 2012 when the term of the lease ended; the proceedings were then adjourned for 7 days to enable the offer to be considered. 5On 9 August 2012, the proceedings had not resolved, Deputy President Higgins made orders for the filing and serving of submissions in relation to jurisdiction, and the parties agreed that this threshold issue would be dealt with on the papers pursuant to section 76 of the Administrative Decisions Tribunal Act. Both parties have since filed written submissions in compliance with the directions made. 6Section 72 of the Retail Leases Act 1994 gives the Tribunal jurisdiction to determine "retail tenancy claims". In turn, the phrase "retail tenancy claim" is defined in section 70 of the Retail Leases Act to include a claim in connection with a "retail tenancy dispute". Section 63 of the Act defines "retail tenancy dispute" to mean a dispute concerning the liabilities and obligations of a party or former party to a "retail shop lease or former lease". 7Section 3 of the Retail Leases Act defines "retail shop lease" to mean "any agreement under which a person grants or agrees to grant to another person for value a right of occupation of premises for the purpose of the use of the premises as a retail shop ..." The term "retail shop" is defined as follows: "Retail Shop means premises that: (a)Are used, or proposed to be used, for the carrying on of one or more of the businesses prescribed for the purposes of this paragraph [whether or not in a retail shopping centre] or (b)Are used, or proposed to be used, for the carrying on of any business [whether or not a business prescribed for the purposes of paragraph (a)] in a retail shopping centre. Note 1. Section 5 limits the retail shops to which this Act applies. Note 2. Clause 17 of Schedule 3 provides that the businesses specified in Schedule 1 are taken to be prescribed for the purposes of paragraph (a) of this definition until regulations prescribing businesses and repealing Schedule 1 are made." 8Schedule 1 of the Act is a very detailed and lengthy list setting out all manner of retail business premises which are prescribed to be "retail shop businesses". 9The list of businesses comprised within Schedule 1 was altered and enlarged in 2005 by the Retail Leases Amendment Bill 2005 which states the following: "Retail Shop Businesses - Schedule 1 [4], [6], [82], [90] and [93] The list of retail shop businesses in Schedule 1 to the Principal Act is replaced, so as to add new retail shop categories and remove others no longer needed as a result of being included in new categories. Provision is made for the listed businesses in Schedule 1 to be amended by regulations and eventually moved in to the regulations ..." 10The Respondents submit that this Tribunal does not have jurisdiction under s72 of the Retail Leases Act because brothels are not included within the businesses listed in Schedule 1 to which the Act applies. 11As recited above, the effect of s3 of the Retail Leases Act is to prescribe that the Act will only apply to a "retail shop" which involves one or more of the businesses set out within the list in Schedule 1. 12Despite the addition in 2005 of additional types of retail shop businesses to Schedule 1, brothels were not included. 13The Respondents submit that the Tribunal should apply the legal maxim of "expressio unius est exclusion alterius" when considering whether or not the Act gives the Tribunal jurisdiction to determine a dispute concerning a brothel. Application of this principle, it is argued, means that the quite precise nature of the list of retail shop businesses contained within Schedule 1 precludes a brothel from the Tribunal's jurisdiction. 14In support of their submissions, the Respondents point to the "literal approach" expounded by Higgins J in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd ("the engineers' case") [1920] 28 CLR 129 at 161-2: "The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable. Words limiting the power are not to be read into the statute if it can be construed without a limitation (per Bowen L.J. in R. v. Liverpool Justices[57] and see King v. Burrell [58]." 15The Respondents say that the proper approach to take is to find that if the legislature intended brothels to be included within the meaning of "retail shop" it would have listed such use in Schedule 1. 16In response to these submissions, the Applicant points to a number of authorities relating to the maxim "expressio unius est exclusio alterius" which are summarised and reviewed by the authors of Pearce and Geddes "Statutory Interpretation in Australia" 6th Edition at 4.28: "...the application of the expressio unius approach will be largely one of impression. Factors affecting the question will include the precision in the drafting of the legislation and the similarity of the subject matter in the provisions being considered (see DFCT v Lincoln Industrial Cleaners Pty Ltd [1975] 7 ALR 118; Lyford v Commonwealth Bank of Australia [1995] FCA 1261; [1995] 130 ALR 267 at 270, citing the comment above). Probably, also, it will be relevant to consider whether the Act in which the provisions occur has been amended extensively as this increases the risk of provisions being inconsistent unintentionally. Because of these problems with respect to its use, the 'expressio unius est exclusio alterius' rule is applied by the Courts with extreme caution. When it is followed, it is used more often as a bolster to a predetermined interpretation than as a rule that produces a result in itself ...". 17The Applicant says that caution should therefore be used when seeking to apply the expressio maxim. The Tribunal accepts this submission. The maxim is an important principle to be applied, but the Tribunal must also approach this issue by considering the actual text of the provisions of the Retail Leases Act as recited above and the descriptions of the businesses listed in Schedule 1, the context within which Schedule 1 and its listed businesses appears, and the overall purpose of the legislation. 18Consideration must be given to the fact that there exists a quite lengthy and explicit list of businesses contained within Schedule 1, yet the Parliament did not expressly include "brothels" within this list as one of the businesses prescribed for the purposes of section 3 of the Retail Leases Act. 19Upon this point, the Applicant submits that the Tribunal should take an expansive approach to interpretation of the term "amusement and entertainment services" which is a type of business listed in Schedule 1; it contends that it is reasonable to conclude that Parliament contemplated that a brothel would fall within this description of business. 20The Tribunal should not speculate upon what Parliament may have intended when it inserted the term "amusement and entertainment services" within Schedule 1. The words used within the Act must be interpreted according to their natural and ordinary meaning as far as is reasonably possible. An authoritative guideline is contained within the judgment of Hamilton J in Woods v Woods [2001] NSWSC 1108: "27 It has been said that the purpose of the exercise of statutory interpretation is to determine the intent of the legislature. As to the nature of this exercise Chief Justice Spigelman has recently said extra curially ((Address to the Government Lawyers' Convention 'The Poet's Rich Resource: Issues in Statutory Interpretation' 7 August 2001): The task of the courts is to interpret the words used by the parliament. It is not to divine the intent of the parliament [State v Zuma (1995) 4 BCLR 401 at 402; Matadeen v Pointu [1998] UKPC 9; [1999] 1 AC 98 at 108]. In an era where a purposive approach to interpretation is emphasised, and indeed required by statute [Interpretation Act 1987 (NSW) s33; Acts Interpretation Act 1091 (Cth) s15AA.], the distinction between interpretation and divination is not always observed. The courts must determine what parliament meant by the words it used. The courts do not determine what parliament intended to say [Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 459; Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 236G; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] UKHL 2; [1975] AC 591 at 613G and 645C-D]. The statutory enactment of the 'purposive' approach, directs a court to prefer a construction that promotes the purpose or object of an Act, over a construction that does not promote that purpose or object. The choice is rarely of that kind. Usually the issue is whether to adopt a construction that more completely or to a greater degree 'promotes' the 'purpose or object'. That choice calls for a finer judgment than the 'purposive' approach required by statute. ....... The concept of attributing an intention to a legislature poses a number of problems [see for example Bennion Statutory Interpretation (3rd ed) London, 1997 at Ch VIII]. Indeed, there may not have been any actual intention at all. The words of a statute may represent a compromise between contending positions, where the actual working out of the application of the statue is, in practice, left to courts precisely because those responsible for the legislation are not able to agree on what the position should be. In a sense, each group is prepared to take its chances in court. [See eg Brennan v Comcare (1994) 50 FCR 555 at 573 per Gummow J.]" 21The term "amusement and entertainment services" was inserted by the 2005 amendments to the Act. Does this term mean and include a "brothel"? The Applicant submits that it does; it points to definitions contained within the Oxford dictionaries, where the term "entertainment" is defined to mean "the action of providing or being provided with amusement or enjoyment" and in turn, the term "amusement" which is defined to be "the provision or enjoyment or entertainment ... something that causes laughter or provides entertainment". 22The above broad definition is somewhat tautological, but the Applicant says that the term "brothel" falls within its bounds, because it is a service providing amusement or entertainment; it also submits that Parliament could reasonably have intended that the term 'brothel' was to be covered within the term 'amusement and entertainment services´ and that it therefore considered that there was no need to elaborate further. In further support of this proposition, the Applicant also submits that 'brothel' may not have been a term that Parliament wanted to use in a statute when it was already covered by other language. 23At stated above, it is not the task of this Tribunal to seek to guess as to what Parliament's intention could have been. The term "amusement and entertainment services" may certainly be capable of covering a wide area of activities whereby amusement or entertainment are provided. However, the mere fact that someone who attends a brothel may derive some "amusement" or "entertainment" should not divert attention from what is really involved in the use of premises as a brothel. 24The suggestion that it is reasonable to conclude that Parliament may have been somewhat reluctant to use the word "brothel" within its legislation cannot be accepted; use of this word by Parliament can be seen at least as early as over a hundred years ago within the Crimes Act 1990 and also within more modern legislation such as the Environmental Planning and Assessment Act 1979, just to give two examples. 25Use of dictionary definitions will usually assist to some extent in determining the textual meaning of a term used within legislation, but not the context within which the term is used. Further, as stated above, the Tribunal must also consider the overall purpose of the Retail Leases Act when considering whether a brothel is to be considered as retail shop premises for the purposes of the Act. 26The Oxford dictionary defines "brothel" to mean "a house where men visit prostitutes" and the term "prostitute" is defined to mean "a person, typically a woman, who engages in sexual activity for payment". These definitions, in the Tribunal's view, coincide with the common and usual understanding within the community as to what a "brothel" is; it is a place where people, usually men, visit and pay other people at that place, usually women, to engage in sexual activity. 27The context provided by the Retail Lease Act is that it deals with goods or services which are being sold or supplied at premises. The service supplied and sold at a brothel is sexual activity; whether the customer receiving this service is amused or entertained is coincidental, and is not an essential component of the service. 28The quite specific retail activity of a brothel is not listed within Schedule 1 and is not covered by the term "amusement and entertainment services". The purpose of the legislation is to regulate relationships between lessors and lessees in certain defined types of commercial retail settings, and there is nothing to indicate that the wide approach urged by the Applicant to consideration of the term "amusement and entertainment services" would accord with this purpose. Accordingly, the Tribunal does not have jurisdiction to determine the subject application nor to determine any other dispute between the parties arising out of the subject lease. For these reasons, the Tribunal cannot make the orders sought within the original Application, nor can it make an order to restrain the Respondents from entering the premises or interfering with the Applicant's business, as sought within the letter from the Applicant's solicitor to the Tribunal dated 11 September 2012. 29The Respondents seek an order for costs pursuant to section 88 of the Administrative Decisions Act 1997. This section provides that the parties are to bear their own costs of the proceedings unless the Tribunal is satisfied, having regard to the matters set out within the section, that it is fair in the circumstances to make a costs order in favour of one party. 30One of the reasons why the Respondents contend that their costs should be paid by the Applicant is because at the first Directions Hearing they made an open offer to allow the Applicant to remain at the premises without disturbance until the termination of the lease on 13 September 2012 and the Applicant did not take this offer up. This argument does not, in the Tribunal's view, support the application for costs because all that was being offered by the Applicant was the exclusive possession and quiet enjoyment of the premises which the Applicant should otherwise have expected to receive under the terms of the lease. 31The Respondents submit that another reason why the Applicant should pay costs is because it has conducted these proceedings vexatiously, but there is simply no evidence at all before the Tribunal to support this contention. 32Alternatively, the Respondents submit that the Applicant has "unreasonably prolonged the proceedings in this matter" but, again, there is simply no evidence to support this contention; in fact, the proceedings have only been the subject of two Directions Hearings within a short period of time, followed by written submissions, and have now been determined within a matter of weeks after commencement. 33Finally, the Respondents say that they should receive the benefit of an order for costs because the Applicant "has made a claim that has no tenable basis in law as the Tribunal does not have jurisdiction in this matter"; the finding now made after consideration of submissions that this Tribunal lacks jurisdiction does not, of itself, mean that the Applicant's contentions have been untenable. Indeed, to the contrary, determination of this matter has required careful consideration of applicable authorities and principles to be applied in statutory interpretation. The argument that the Applicant's claim is untenable, simply because there has been an ultimate finding that the Tribunal lacks jurisdiction, must fail. 34The Tribunal is therefore not satisfied that there is any reason to justify departure from the statutory presumption that each party should bear its own costs of the proceedings.