Davis v Department of Commerce & anor [2009] NSWADT 61

CITATION: Davis v Department of Commerce & anor [2009] NSWADT 61

DIVISION: General Division

APPLICANT Peter Davis PARTIES: RESPONDENT Department of Commerce Shop Distributive & Allied Employees Association, NSW Branch

FILE NUMBER: 093034

HEARING DATES: 19 March 2009

SUBMISSIONS CLOSED: 19 March 2009

DATE OF DECISION: 25 March 2009

BEFORE: Handley R - Deputy President

CATCHWORDS: Shop Trading Act – refusal of exemption for trading on Easter Sunday

Shop Trading Act 2008 LEGISLATION CITED : Shops and Industries Act 1962 Interpretation Act 1987 Shop Trading Reform Act 1996 (Vic)

Shop Distributive and Allied Employees Association, NSW v Director General, NSW Department of Commerce – 30150/08, unreported, NSW Supreme Court, 23 December 2008 CASES CITED: Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 Geaghan v D'Aubert [2002] NSWCA 260

APPLICANT RM Goot SC with D Priestley, counsel

REPRESENTATION: 1st RESPONDENT CC Spruce, counsel

2nd RESPONDENT M Robinson, counsel

ORDERS: The decision under review is affirmed.

REASONS FOR DECISION 1 This matter involves an application by Peter Davis, on behalf of Bunnings Group Ltd trading as Bunnings Warehouse ('Bunnings'), for a review of a decision of the Director General of the Department of Commerce ('the Department') made under the Shop Trading Act 2008 ('the ST Act') not to grant an exemption allowing Bunnings to trade on Easter Sunday. Background 2 Peter Davis is the Chief Operating Officer and a Director of Bunnings. On 3 November 2008, Mr Davis, acting on behalf of Bunnings, applied to the Department for an exemption under the ST Act to permit Bunnings to trade in NSW on Boxing Day and Easter Sunday. On 12 December 2008, a delegate of the Director General decided, first, to grant an exemption until 30 June 2009 to allow Bunnings to trade on Boxing Day in all existing and future Bunnings Warehouse locations (other than those Bunnings Warehouse shops operating in areas with an existing exemption), subject to a condition that any Bunnings Warehouse covered by the order could only trade between 9 am and 5 pm on Boxing Day. The delegate informed Mr Davis that on the expiry of the exemption in June 2009, the NSW Office of Industrial Relations would carry out a review of the exemption. Second, the delegate decided to refuse the application for an exemption in respect of Easter Sunday. 3 On 18 December 2008, the Shop Distributive and Allied Employees Association, NSW, commenced proceedings in the Supreme Court to have the Department's decision declared unlawful or otherwise set aside, and for further ancillary relief. Following a hearing on 22 and 23 December 2008, Adams J dismissed the summons: Shop Distributive and Allied Employees Association, NSW v Director General, NSW Department of Commerce – 30150/08, unreported, NSW Supreme Court, 23 December 2008 ('SDA v Commerce'). 4 By letter dated 9 January 2009, Mr Davis sought an internal review of the decision dated 12 December 2008 to refuse an exemption for Easter Sunday. On 30 January 2009, the Department confirmed the decision. On 12 February 2009, Mr Davis filed an application with the Tribunal for a review of that decision. On 27 February 2009, the President of the Tribunal, O'Connor DCJ, conducted a Directions Hearing at which he gave directions for the exchange of documents between the parties and ordered that the Shop Distributive and Allied Employees Association, NSW, and the federal Shop Distributive and Allied Employees Association (referred to jointly hereafter as 'the SDA') be joined as the second respondent in these proceedings. The Legislation 5 The ST Act took effect on 1 July 2008, repealing the previously applicable Shops and Industries Act 1962 ('the 1962 Act'). Section 4 of the ST Act states: 4 Shops to be closed on restricted trading days (1) All shops must be kept closed at the following times: