MARKET CITY PROPERTIES PTY LTD v SYDNEY MARKET AUTHORITY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL EQUITY DIVISION MASON P, MEAGHER and POWELL JJA 25 February 1997, 25 February 1997 [1997] NSWCA 196 Interpretation of instruments — Deed in form of licence between Sydney Market Authority (SMA) and appellant regulating use and occupation of Paddy's Market site — dispute as to whether the appellant is entitled under the Licence to conduct a market at the site on weekdays — powers and functions of SMA regulated by Sydney Market Authority Act 1968 (the Act) — dispute as to meaning of 'public market' in Licence with reference to the term 'public market' in the Act — whether 'public market' confined to a market at which some farm produce sold — statutory construction of term with reference to legislature background of powers and functions of SMA Words and Phrases — "public market" Sydney Market Authority Act 1968, s3, s11(1), s15(7) Associated Newspapers Ltd v Wavish (1956) 96 CLR 526; applied. Mason P Ex tempore Sydney Market authority, to which I shall refer as "SMA", is a statutory corporation constituted under the Sydney Market Authority Act 1968. S11(1) provides that it may within the County of Cumberland provide, maintain, control and manage public markets for the sale or disposal of farm produce and other merchandise. For the purposes of and subject to the Act SMA is authorised to perform a wide range of powers and functions set out in s11(2). They include the power set out in para(e) thereof, namely, granting "to wholesalers, merchants, producers of farm produce and vendors of any kind of merchandise and to other persons a right to use and occupy for the sale and disposal of farm produce and other merchandise or for any purpose approved by the Authority, any portion or portions of a public market'. A public market is defined rather unsatisfactorily in s3 of the Act to mean: "public market provided, maintained, controlled and managed by the Authority or any part of any such market". As the opening words of s3(1) make plain, the definitions therein apply "except in so far as the context or subject matter otherwise indicates or requires". One such exception is found in s15 of the Act which limits the rights of the public to use land within the County of Cumberland "as and for the purposes of a public market" without the written permission of the SMA; and in subs7 gives "public market" a special definition for the purpose of s15 itself. S15(7) provides: "(7) In this section: 'public market' means any place where a number of wholesalers, merchants, auctioneers or other persons congregate for the purpose of selling or disposing of farm produce to the public". 2 UNREPORTED JUDGMENTS SMA conducts markets at Flemington and in the Haymarket. It provides and maintains markets known as Paddy's Markets at the Flemington site on Fridays and Sundays and at the Haymarket site on Saturdays and Sundays. Paddy's Markets consist of a large number of stalls operated by stallholders selling numerous types of merchandise to the public. The stallholders pay fees to SMA to occupy a space, and to promote the market. SMA provides administrative and other services to ensure the proper conduct of the market. SMA's right to occupy the market site is regulated by a deed dated 10 December 1993. The appellant, referred to by its former name Rockvale Pty Ltd, is the other party to the Deed, it holding its occupancy rights from the Darling Harbour Authority. The Deed has annexed to it a form of registrable sublease from the appellant as sublessor to the SMA as sublessee being for a term of 25 years commencing 11 December 1993. Despite this, the Deed itself modifies the sublease by treating it as a License (sic) with the parties being respectively the Licensor, the appellant and Licensee, SMA. I shall refer hereafter to the Deed (with annexure) as the License and set out terms of the sublease as modified by the Deed. The litigation concerns a dispute between the parties as to whether the appellant is entitled under the Licenses to conduct a market at the site on weekdays. Cl4(1) licenses the premises to SMA for the purpose of using them "as a Public Market" during stipulated hours on Saturdays and Sundays. Cl4(3) of the Licence provides that the appellant will not, during the term of its Head Lease "use or permit to be used the Licensed Premises as a Public Market" without the written consent of SMA. The License stipulates in cll.1: that unless the contrary intention appears: public market shall have the meaning set forth in the Act". C111(4) of the license should also be mentioned. It provides that "the Licensor shall consult with the Licensee and consider the reasonable requests or requirements of the Licensee in relation to or in connection with the efficient operation of the Licensed Premises as a Public Market". Hodgson set forth these and other relevant provisions of the License in further detail. He declared that: "on the true construction of cl4.3 of the licence annexed to the deed dated 11 December 1993, the words 'public market' mean a public market of which any kind of merchandise, whether or not including farm produce, is sold". In its Notice of Appeal the appellant seeks to set aside this declaration and to substitute for it one or other of two alternative declarations being either: A. A declaration that on the true construction of cl4.3 of the License, the words public market mean a "public market" which at least includes the sale of farm produce, or alternatively: B. A declaration that on the true construction that 4.3 of the License, the words "public market" mean a public market as defined in s15(7) of the Act". The effect of the declaration made by Hodgson J is that the restraint that cl4.3 of the License imposes on the appellant, that is from using or permitting to be used the licensed premises during weekdays as a public market without the written consent of the SMA, extends to use for selling merchandise other than farm produce, even where no farm produce is sold at all. The effect of either of the alternative declarations sought by the appellant would, if made, limit the restraint of cl4.3 so that it had no application unless some part of any public market conducted by the appellant during weekdays URMARKET CITY PROPERTIES PTY LTD v SYDNEY MARKET AUTHORITY (Mason P) 3 involved the sale of farm produce. ("Farm produce" is defined in s3(1) of the Act to mean vegetables, potatoes and other edible roots and tubers, fruit, eggs, poultry, honey and such other commodities as the Governor may, by regulation, declare to be farm produce. The appellant appears to accept that this definition is available for the purposes of the License although exactly how this comes about is a little unclear.) The appellant's principal argument proceeds thus: The appellant accepts that the evident intent of the parties in cl4.1 and cl4.3 was to permit the use of the premises by SMA on the weekends for the sale of farm products and other merchandise and to constrain the use of the premises by the appellant during the week days for that purpose. In other words its purpose is to be read as furthering the statutory functions of the SMA but no more. (So much may be conceded for the purpose of argument.) Since, the argument continues, the SMA has no power under the Act to conduct a market dealing only in "other merchandise", cl4.3 [and presumably the other clauses in the licence referring to a "Public Market", must be read as confined to a market in which some, at least, of the produce sold is farm produce. Put simply, the argument is that the SMA cannot conduct a market dealing only in other merchandise in the sense that merchandise does not include any "farm produce" as defined in the Act. I have already set out the presently relevant sections of the Act. Them is an initial difficulty with applying the statutory definition of "public market" in s3 to cl4.3. This is because it speaks of a "public market" provided et cetera by the authority, (ie the SMA). It is difficult to see how this could apply to cl4.3 which serves to deny to the appellant the right to do something. On this basis one is left to choose between discarding the definition altogether in its application to cl4.3, (that is, relying on the contrary intention proviso in the opening words of cll.1 of the License) or being left with the rump of the definition which would unhelpfully inform the reader that "public market means public market". On either basis the definition would provide no ground for reading cl4.3 as the appellant would wish it to be read. The appellant seeks to escape this consequence by arguing in effect that s11 prohibits the SMA from providing et cetera a market dealing with "other merchandise'. I cannot accept this conclusion for three reasons. 1. If the word "and" in farm produce and other merchandise in s11 is purely conjunctive, it would prevent the SMA from conducting a market dealing exclusively with farm produce. Yet the appellant accepts that this could not be right. Yet, if s11(1) cannot be read as imposing upon the SMA the duty to be involved in "other merchandise", then I cannot see how it can be read as imposing a duty to be involved in "farm produce". In my opinion the word "and" in sll(1) must be read as having a dispersive affect similar to that discussed in Associated Newspapers Ltd v Wavish (1956) 96 CLR 526 and exemplified in the very definition of "public market" in s3. Once s11(1) does not support the appellant's argument, I find it difficult to see what else in the Act does. 2. The appellant's appeal to sll(1) also encounters the barrier that the interpretation appears to run counter to the legislative history of the Act. Having encountered a barrier I do not think it overcomes it. Prior to 1985 the primary focus of the SMA's functions was farm produce. Indeed, this appears to have been its exclusive focus save for ancillary powers found in s11(2)(i) and s11(2)qj). The long and short titles to the original Act attested to this as did s11(1) which is the cornerstone of the SMA's charter. 4 UNREPORTED JUDGMENTS In 1985 the Act was renamed the Sydney Market Authority Act and s11(1) was amended to its present form. References to "other merchandise" were inserted in key provisions, notably sll(1) and s11(2)(e) and s11(2)(h). The minister's second reading speech in the Assembly stated: "Some doubt exists as to the authority's power to participate in the promotion of its retail markets, principally the Sunday Paddy's Market at Flemington, where no farm produce is sold. (I will emphasise those last six words). As its retail market activities account for some 27 percent of the Authority's income, the Authority should have a clear power to promote this important activity. The extension of its current promotion power to include the promotion of other merchandise as well as farm produce is a commercially sound decision." In the Council, the minister explained that s11(2)(h) is an extension to make it clear "that the Authority can support promotion and permit the use of market premises by retailers of merchandise other than farm produce". Accepting that a minister's speech cannot control the meaning of otherwise clear words, I conclude nevertheless, that these statements support the conclusion that the word 'and' in s11(1) should be read as I have indicated. In any event I can find nothing in the Act as it stood after 1985 that supports the argument that would confine the SMA's powers in such a way as to require it to include some form of farm produce in the public markets which it conducts or it controls. 3. My third reason for rejecting the appellant's argument lies in the fact that cl1.1 of the License attempts to define public market and relevantly no more. The appellant accepts that the definition is inapt for cl4.3 in that such clause is not addressing an activity of the SMA. Yet is seems to me that the consequence must be that it is not legitimate to put the SMA notionally back into the definition in order to have a springboard for the argument based on the interpretation of s11 and the balance of the Act. Again it is pertinent to observe that the definition of "public market" in s3 is silent as to the products sold. The appellant's alternative argument is attractive but only for its ingenuity. The contention is that unlike cl4.1, cl4.3 picks up the definition in s15(7) and having done so confines the scope of cl4.3 to farm produce. It is put that cl4.1 relates to what the SMA can do and accordingly the meaning of public market in s3 is applicable; whereas cl4.3 relates to what others, more particularly the appellant, cannot do and the latter meaning (ie s15(7)) is applicable. I would reject this argument for two reasons. When cll.1 of the License says that unless the contrary intention appears "Public Market" shall have the meaning set forth in the Act it infers that there is a single meaning, yet the appellants alternative argument denies this. Secondly, the definition in s15(7) is clearly confined in its operation to s15 itself. This suggests that it is not picked up by cll.1 of the License. The suggestion is reinforced when it is recognised that sI5 enacts a statutory prohibition capable of being lifted by permission of the SMA. That prohibition operates according to its terms which are a detailed regime. By contrast, cl4.3 operates as a specific and unconditional prohibition save for the power of the SMA to give consent. I cannot see how cl4.3 should be read as operating in the same field as s15. If that is so it is a further reason for rejection of the s15(7) definition. Accordingly, I propose that the appeal should be dismissed with costs. Meagher JA I agree. Powell JA I also agree. Mason P The orders of the court shall be as proposed. URMARKET CITY PROPERTIES PTY LTD v SYDNEY MARKET AUTHORITY (Mason P) 5 Appeal dismissed with costs Counsel for the appellant: P Hely QC and J T Gleeson Solicitors for the appellant: Sly & Weigall Counsel for the respondent: W W Taylor QC Solicitors for the respondent: Thorntons