New South Wales Supreme Court CITATION : Shop Distributive and Allied Employees Association of NSW & Anor v Director-General, NSW Department of Commerce & Anor [2008] NSWSC 1417 HEARING DATE(S) : 22 December 2008 JURISDICTION : Administrative Law JUDGMENT OF : Adams J at 1 EX TEMPORE JUDGMENT DATE : 22 December 2008 DECISION : 1 Summons dismissed 2 The plaintiffs to pay the defendants' costs except for the costs thrown away by the invalidity of the delegation of Mr Jones. LEGISLATION CITED : Shop Trading Act 2008 ss 4, 8, 10 CATEGORY : Principal judgment CASES CITED : SAAP and Anor v The Administration for Immigration, Multi-Cultural and Indigenous Affairs and Anor (2005) 228 CLR 294 Shop Distributivde and Allied Employees Association of New South Wales (First plaintiff) PARTIES : Shop Distributive and Allied Employees Association, New South Wales Branch (Second plaintiff) Director-General, New South Wales Department of Commerce (First defendant) Michael Iraninejad (Second defendant) FILE NUMBER(S) : SC 30148/08 Mr G Inatey SC with Mr M A Robinson (Plaintiffs) COUNSEL : Mr J Stevenson SC with Ms C Spruce (First defendant) Mr J P Gormly SC (Second defendant) Taylor & Scott Lawyers (Plaintiffs) SOLICITORS : I V Knight (First defendant) Carroll & O'Dea (Second defendant) THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J MONDAY 22 DECEMBER 2008 30148/08 - SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION OF NEW SOUTH WALES & ANOR v DIRECTOR-GENERAL, DEPARTMENT OF COMMERCE & ANOR JUDGMENT 1 HIS HONOUR: The Shop Trading Act 2008 provides a regime by which the Director-General of the Department of Commerce can exempt retail businesses from the requirement of the Act that they be closed on restricted trading days. The Act itself provides for exemptions of particular kinds of shop (s 8) and in Schedule 1 specifies certain other exempt shops, identified by the character of the goods available for sale. Other retail premises must be closed on Good Friday, Easter Sunday, before 1pm on Anzac Day, Christmas Day and Boxing Day unless they are exempted under the statutory procedure (s 4). 2 The Act gives the Director-General power to exempt a shop from a requirement that it be kept closed by making orders to that effect, published in the Gazette. Such an order must be made either on an application by a person or can be made at the Director-General's discretion, I think, at his or her own instigation (s 10). Applications for exemptions must be made in the manner approved by the Director-General, accompanied, as one would expect, by an application fee. 3 The Director-General established a protocol relating to these applications. This document is available on the Internet and may be downloaded. After making some reference to the statutory regime, the protocol states, so far as applications are concerned: "1. retailer application: an application for an exemption for a single shop or a series of shops trading under a single business name or within a single shopping precinct (including a shopping centre or retail mall); or 2. regional application: an application for an exemption covering more than one shop in one or more defined geographic locations; or 3. special event application: an application for an exemption covering a one or more nominated restricted trading days, in one or more defined geographic locations, to coincide with a nominated business, social or community event." 4 On 16 October 2008 the second defendant made application in the prescribed form, seeking an indefinite exemption for retail trading on Boxing Day and Easter Sunday; in the context, actually, Boxing Day 2008 and Easter Sunday 2009. The form used was a "regional" application but it is clear that the second defendant intended to seek exemption only for the Broadway Shopping Centre, of which he was the retail manager. The correct form was "retail" application. In accordance with the Act, notice of the application was given to the public by way of the Internet, and the application itself could be seen by anyone who wished to do so by manipulating the relevant page. 5 The plaintiffs comprise a union that represents a significant number of staff employed in the retail industry. It is not contested that a number of the plaintiffs' members work at the Broadway Shopping Centre in shops which are not otherwise covered by the statutory exemptions, and accordingly would be affected by any exemption given by the first defendant. 6 Pursuant to what they saw as their obligations towards their members, the plaintiffs commented on the application for exemption, bringing to the Director-General's attention a number of entirely proper considerations which, it was submitted, demonstrated that the application failed to deal with several relevant issues and otherwise was inadequate to enable the Director-General to make a proper decision about granting the exemptions sought. The implication of the submission was that if the matters to which the Act requires the Director-General to direct his attention were properly assessed, the application should be rejected. 7 The submission makes the point that the second defendant had made his application by using the wrong form; namely, that which sought "regional" exemption as distinct from a "retail" exemption. In the result, a Mr Jones, who it was apparently then thought was appropriately authorised, gave the exemption applicable only to June 2009 and therefore covering Boxing Day 2008 and Easter Sunday 2009. It later appeared that Mr Jones was not authorised and the Director-General on 18 December gave the same exemption. 8 The plaintiffs commenced proceedings in this Court on 16 December complaining about the exemption granted by Mr Jones alleging that the Act had not been complied with and that therefore the exemption was void. To some extent events overtook that application by virtue of the acceptance by the Director-General that Mr Jones did not hold the proper delegation and the summons was amended on 8 December to cover both. 9 The plaintiffs mount three arguments of which the first two are the most significant. The first argument is this. The "manner approved by the Director-General" for the making of applications pursuant to s 11 of the Act distinguished, as is evident, between a regional exemption and a retail exemption. It is unarguable that the application made by the second defendant should have been a retail application, which directly refers to shopping centres such as that of which he is the manager and in respect of which he sought exemption. Fairly read, the application that he lodged, although it is headed "Regional Exemption" and although in that part of the form identifying the area of exemption he specified a postcode and the name "Broadway", the only fair way in which that document could be read is to interpret it as an application for a retail exemption, the reader appreciating that for some reason or another the wrong form was used. The information supplied with that application is information that would have been relevant only to a retail exemption. The published notice by the Department exposing the fact that this application had been made stated in the column headed "Location of Exemptions" "Broadway Shopping Centre, corner Broadway and Bay Street, Glebe". It did not refer either to the postcode or to Broadway as the locality, I think for obvious reasons. 10 The plaintiffs argue, however, that the regime in the Act is one that requires strict adherence to the letter both of the Act and to the administrative arrangements which the Act authorised the Director-General to make. It seems to me that such an argument seeks the triumph of form over substance. I do not accept that, rightly read, the Act requires the Director-General to be bound by the particular form in which an application is made providing its substance is clear and the public would understand what it is that is being sought. 11 It is true that the owner of a shop in the Broadway area might think it unnecessary to make an exemption application if he or she were minded to do so because one was already underway by the hand of the second defendant and that this mistaken view, induced by the second defendant's wrong use of the form, could result in some unfairness, but I think that any person who read both the advertisement and the application itself would immediately see that indeed, although the wrong form had been used, the application related only to the Broadway Shopping Centre. 12 I have been referred to the decision of the High Court of Australia in SAAP and Anor v The Administration for Immigration, Multi-Cultural and Indigenous Affairs and Anor (2005) 228 CLR 294, in particular at pages 321 and 323. I mean no disrespect to the High Court by not setting out those passages and contenting myself simply with the observation that in my view, the legislation there considered is so dissimilar both in terms and in context to the present legislation that their Honours' observations are of no assistance in interpreting the Act. 13 Accordingly, I am unpersuaded by the first contention made by the plaintiffs. 14 The second contention concerns the application of the requirement of s 10(3) of the Act that the Director-General must take into account certain specified matters. One of those is "the likely effect of the proposed exemption on employees of, or persons working in, a shop". In this respect the plaintiffs rightly point to the wages that might be received by employees who work on the otherwise restricted days. 15 The second defendant had said in his application that "the shopping centre employees would be entitled to double the pay rates", noting also that the employees would be employed "mainly under the Retail Industry State Award". The plaintiffs' submission to the Department did not take issue with either of these statements except that in relation to the first it was pointed out that the pay rate was not double, it was time and a half on Easter Sunday. In fact the award, as it happens, provides that for Boxing Day the pay rate is double time and a half, so that the information conveyed by the second defendant understated somewhat the applicable pay. 16 The Director-General in stating his reasons for allowing the exemption observed in relation to: "The likely effect on shop employees is addressed in para (d). The applicant asserts that the employees would be entitled to double the pay rates [sic]. The SDA objects that under the relevant industrial instrument, Easter Sunday would be paid at only time and a half. Issues about voluntary work had been noted earlier in this brief." 17 The recommendation which was accepted by the Director-General was as follows: "That the application by Mirvac Retail Sub SPV Pty Ltd and Perron Investments Pty Ltd to open the Broadway Shopping Centre on the restricted days of Boxing Day and Easter Sunday be granted, with a restriction placed within the Order limiting the hours of opening from no earlier than 9 am and no later than 5 pm on Boxing Day, and opening no earlier than 10 am and no later than 4 pm on Easter Sunday, subject to the following: (i) the decision is to be reviewed in June 2009; (ii) after Easter 2009, OIR inspectors will inspect all shops in the complex and interview the shopkeepers and employees concerned in relation to trading practices on Boxing Day and Easter Sunday; and (iii) as part of (ii) will seek information from shopkeepers in relation to payment of appropriate rates of pay under relevant industrial instruments and the obligations under section 13 of the Act – the results of which are to be published on the Office's website prior to the action in (iv); (iv) the Office is to conduct an additional period of public comment prior to the review of the order in June 2009; (v) the Order operates in relation to the hours specified for each trading day." 18 Mr Inatey SC (who has said everything that could be said on behalf of his clients, the plaintiffs) submits that paragraph 3 of the recommendation should be read as the Director-General deferring consideration of "the likely effect of the proposed exemption on employees of or persons working in the shop" until the information from the shopkeepers to be obtained after Easter 2009 is to become available. 19 It will be seen that the information in relation to "appropriate rates of pay" is to be procured as part of a general inspection that was recommended to occur after Easter 2009 involving interviewing shopkeepers and employees. It is obvious enough that the Director-General was anxious to obtain detailed information about the impact of what happened on Boxing Day 2008 and Easter Day 2009 and of potential impact upon both workers and employers to give him a better context in which to consider applications of the kind made here. I would not read that opinion (that is, that further information is necessary) as suggesting that he otherwise did not consider, to the extent that he believed he had adequate information, the likely effect to which s 10(3)(d) refers. On the contrary, I think that it indicates that he did consider that matter, but also considered that there were some uncertainties about that likely effect of the exemption and wished to have further information in respect to it to inform his consideration of future applications. 20 There was some uncertainty about the actual wage rates payable since, on the one hand, as I pointed out, it seems that the second defendant and the plaintiffs agreed that so far as Boxing Day was concerned double time was the appropriate rate whereas the award provides for double time and a half. The mere fact that there was this difference does not mean that the Director-General did not have adequate information in his mind to consider the likely effect of the proposed exemption to which the statute directed his attention. 21 I am not prepared to infer, as Mr Inatey SC urged, that the difference in wage rates to which explicitly or implicitly the application referred and the decision that further information would be obtained as specified in the recommendation means that the Director-General did not give any or adequate attention to the requirements of s 10(3). Accordingly, I reject the second contention. 22 The third contention is that the Director-General took into account the inaccurate statement by the applicant that the rates were double time, whereas they were in fact double time and a half. Even assuming, as the argument commenced that I think was later amended, that the correct pay for Boxing Day was time and a half and that therefore the applicant had mistakenly exaggerated the pay rate, it does not follow simply because such a fact is in an application that therefore the Director-General was misled by it. 23 In this case, as it happened, the document which correctly stated the rate was referred to in the application, namely the State Award. It is unclear whether the Director-General referred to the State Award since the paragraph which I have cited above does not do so and it seems that the Director-General accepted that double pay was the correct rate since it appears the SDA (which one would have expected to know this matter directly as a result of its industrial responsibilities) did not suggest that it was mistaken except as to Easter Sunday. This qualification would have demonstrated to the Director-General that the SDA had in fact considered the correct rate and accepted what the application stated. 24 It is not every mistaken fact in an application which, even if accepted as true by a decision maker, vitiates the decision. In this case the mistake was conservative in its effect since it understated, it appears, the applicable wage rate, so that if the Director-General thought that pay rate did not lead to an inappropriate reward for workers who chose to work on Boxing Day, a fortiori the decision would have been the same had the pay rate been greater. 25 It is fortunately not always the case that bureaucratic decisions are devoid of commonsense and a commonsense attitude must be taken, I think, by judges in my position who are being asked to second-guess on limited materials a decision which on its face seems to be quite sensibly arrived at. There is nothing in the material which I have been shown that suggests that the Director-General in any way misdirected himself as to the relevant considerations, failed to consider relevant considerations or took into account anything but relevant considerations. In my view, he acted as he was entitled to act and accordingly, the summons must be dismissed. 26 The plaintiffs will pay the defendants' costs except for the costs thrown away by the invalidity of the delegation of Mr Jones. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.