WOOLWORTHS LTD v CAMPBELLS CASH and CARRY PTY LTD [No 2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER, COLE and BEAZLEY JJA 22 October 1996, 22 November 1996 [1996] NSWCA 563 DEVELOPMENT CONSENTS — nature of Court orders — uncertainty of terms of consents Sheller JA The Court delivered judgment in this appeal on 19 September 1996. At the end of my judgment, with which Beazley JA agreed, I indicated that the appellant was entitled to injunctive relief but left open to the respondent the opportunity to formulate an undertaking to the Court not to sell goods from the four premises on which the respondent carried on its business to ordinary members of the public. Cole JA who reached a different conclusion about the meaning of the development consents obtained for the premises, proposed orders which, inter alia, restrained the respondent from using the premises otherwise than for the particular purposes found in the consents, which were described in his Honour's proposed orders. The respondent proffered undertakings which were not acceptable to the appellant. On 22 October 1996 the Court heard argument about the undertakings proffered and the orders that should be made. Following that further written material was put before the Court. The main point of contention was whether the Court's orders should expressly describe the nature of the goods that could be sold from the premises in question. The respondent submitted that for some time goods had been sold from some of the premises which at least arguably might fall outside the terms of the consents but that this had not been a matter in issue in the Land and Environment Court or on this appeal. The respondent also expressed concern about undertakings or orders, such as those the appellant proposed, which referred to sales "only in bulk quantities", because of the uncertainty involved in the use of such words. In the Land and Environment Court, Bignold J said in his reasons for judgment that essentially the breach alleged by the appellant was retail selling and that each of the four proceedings raised the same principal issues, namely: "1. Whether, in addition to legitimate wholesaling activities, the respondent's trading operations include an element of retail selling (which is) (i) neither incidental or ancillary to the wholesaling activities; (ii) nor is de minimis; and 2. If such retailing selling is being undertaken (and it is common ground that retail selling is prohibited), whether the Court in the exercise of its discretion, should restrain the retail selling." Bignold J went on to say that there was a subsidiary issue raised as to whether Campbell's activities involved goods or products which fell outside the scope of "groceries". However this was a relatively minor issue and Woolworths recognised that if this was the only breach that it could establish it would be appropriate to allow Campbells the opportunity to seek the requisite consents to 2 UNREPORTED JUDGMENTS extend the range of goods and products in which it might trade from the stores. Liverpool Council did not complain of the extended range of goods but Parramatta Council did. Bignold J did not decide this minor issue and this Court was not asked to consider it. In my opinion the declarations and orders that the Court should make should not go beyond the issues argued on the appeal. The appellant has no finding that the respondent on any of the four premises had sold goods other than those the consents allowed. Even if this had been demonstrated, there was no material upon the basis of which this Court could exercise a discretion to grant injunctive relief based on such a finding. The relief sought in the Court below as described in Bignold J's judgment was to restrain retail selling. In my opinion a declaration should be made describing the bounds of the consents so far as relevant to the issues in this case. By this I intend that if in future disputes arise as to whether particular sales of particular classes of goods fall within the consents or any one of them and the disputes give rise to issues not considered in these proceedings those issues can be considered untrammelled by the orders made in this case. In my opinion the injunctive relief should be limited to retail selling. If and to the extent the parties wish further to limit or to enlarge the scope of the injunctive relief as a result of future acts or variations of consents the orders should give liberty to them to apply to the Land and Environment Court to vary or discharge the injunction accordingly. In my opinion, the Court should make the following orders and declarations in each of the four proceedings: 1. Appeal allowed; 2. Set aside O1 made by Bannon J on 26 May 1993; 3. Declare that the development consent in respect of the respondent's premises permits sales therefrom to retailers and other merchants and also in bulk quantity to industrial institutional and commercial users and prohibits sales to ultimate consumers who are ordinary members of the public or professional people whether or not they are members of buying groups or employed by the same employer; 4. Order that the first respondent be restrained from making or offering to make from the premises sales to ultimate consumers who are ordinary members of the public or professional people whether or not they are members of buying groups or employed by the same employer; 5. The respondent to pay the appellant's costs of the proceedings in the Land and Environment Court and of this appeal but to have a certificate under the Suitors Fund Act 1951 if so qualified. 6. Liberty to the appellant and the respondent to apply to the Land and Environment court to vary or discharge O4. Cole JA In my view the orders of the Court should be those that I proposed in my reasons for judgment dated 19 September 1996 for the reasons there given. Beazley JA I agree with Sheller JA. 1. Appeal allowed; 2. Set aside Ol made by Bannon J on 26 May 1993; 3. Declare that the development consent in respect of the respondent's premises permits sales therefrom to retailers and other merchants and also in bulk quantity to industrial institutional and commercial users and prohibits sales to ultimate consumers who are ordinary members of the WRJOLWORTHS LTD v CAMPBELLS CASH and CARRY PTY LTD [No 2] (Beazley JAB public or professional people whether or not they are members of buying groups or employed by the same employer; 4. Order that the first respondent be restrained from making or offering to make from the premises sales to ultimate consumers who are ordinary 5 members of the public or professional people whether or not they are members of buying groups or employed by the same employer; 5. The respondent to pay the appellant's costs of the proceedings in the Land and Environment Court and of this appeal but to have a certificate under the Suitors Fund Act 1951 if so qualified. 10 6. Liberty to the appellant and the respondent to apply to the Land and Environment court to vary or discharge O4. Counsel for the Appellant: PD McClellan QC/JT Gleeson 15 Solicitors for the Appellant: Clayton Utz Counsel for the Respondent: RA Conti QC/NH Hemmings QC Solicitors for the Respondent: Allen Allen and Hemsley