Application for Re-opening of TH/2008/4 [2011] QIRC 15

CITATION: National Retail Association Limited, Union of Employers AND Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) and Another (B/2010/27) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 280 - procedures for reopening National Retail Association Limited, Union of Employers AND Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) and Another (B/2010/27) APPLICATION FOR RE-OPENING OF TH/2008/4 DEPUTY PRESIDENT SWAN DEPUTY PRESIDENT BLOOMFIELD COMMISSIONER FISHER 25 February 2011 DECISION Background [1] On 12 July 2010 the Commission as presently constituted released its Decision in relation to an application made by the National Retail Association Limited, Union of Employers (NRA) to amend the Trading Hours Order - Non-Exempt Shops Trading by Retail - State (the Order) in the Bargara and Mission Beach areas, respectively. For reasons which appear in the Trading Hours Decision1 the Commission dismissed the application as it related to each area. [2] On 19 August 2010 Mr Gary Black, Executive Director of NRA, applied to the Commission for a re-opening of the application insofar as it related to the Bargara area. In his affidavit accompanying the application to re-open, Mr Black swore as follows: "(a) The applicant believes that it would be both reasonable and equitable to re-open the proceedings in matter TH/2008/4 to enable the applicant to clarify particular matters arising from the reasoning of the Commission in its decision, and also to provide further relevant information. (b) The matters that would benefit, in our respectful submission, from further consideration are matters that are relevant to the operation of section 26 (a), (b), (c), (d) and (h) of the Trading (Allowable Hours) Act. (c) Section 26(h) requires the Commission to have regard to 'the view of any local government in whose area the order is likely to have an impact'. In paragraph 144 of its decision, the Commission indicated that: 'The Council has not expressed a view on this application.'. (d) The applicant acknowledges that it may not have presented the view of the local government to the Commission with sufficient clarity and understands that the Commission might reasonably have concluded that the relevant local government had not expressed a view on the application. (e) In fact the Bundaberg Regional Council has considered the NRA application and has arrived at a view in respect to the NRA application. Given the significance attached to the view of local government in trading hours matters, it is important that misunderstandings about the local government view not be allowed to fester and that the applicant be given the opportunity by way of re-opening to make further submissions on this matter. (f) The Bundaberg Regional Council passed the following resolution at its meeting on 7 October 2008: 'That the National Retail Association be advised that having regard for Bargara's identity as a tourism destination and the rapid growth in the township's resident population - Council support the Application before the Queensland Industrial Relations Commission to permit Seven (7) Day Trading for Non-Exempt Retailers within the areas defined in the Application.'. 1 TRADING HOURS - NON-EXEMPT SHOPS TRADING BY RETAIL - STATE (TH/2008/4) - Decision http://www.qirc.qld.gov.au. -- 1 of 5 -- 2 (g) Attached to this affidavit is an excerpt from the minutes of the Bundaberg Regional Council meeting of 7 October 2008. (h) In paragraph 122 of its decision the Commission, in referring to Section 26(d), states: 'In our view, Mr Barnes' evidence around questions concerning tourism and population growth is, within context, viewed as acceptable when supported by statistical evidence, however, when statistical material has not been provided, it is viewed as not being definitive on the point.'. (i) In paragraph 114 of its decision the Commission in referring to Section 26(c), states: 'The Full Bench notes that evidence as it purports to be representative of the growth of tourism within the area. However, Mr Barnes was unable to produce any specific documented evidence under this heading.'. (j) In paragraph 110 of its decision the Commission, in referring to Section 26(b), states: 'We note, however, that there was no documentary evidence put to the Commission by Mr Barns (sic) to support his claims. Consequently, the views expressed by the Full Bench on this point do not and could not constitute findings, but are for consideration only given Mr Barnes' status and elected role within the Bargara area.'. (k) The Applicant understands and appreciates the Commission's reluctance to make findings in circumstances where empirical evidence is not available. However the difficulty for the applicant is that, to the best of our knowledge, objective data in the areas referred to in the Commission's decision cannot be obtained from either the Australian Bureau of Statistics or Tourism Queensland. Consequently, to the best of our knowledge, the data or information that the Commission might otherwise reasonably require, is not able to be produced. (l) In the circumstances the Applicant requests, by way of re-opening, that it be given the opportunity to address the Commission further on the availability of tourism and population data and to seek direction from the Commission about what other means might be available to satisfy the Commission's requirements. (m) The Applicant believes that the proper resolution of considerations associated with tourism data and information is important because the Application in the first instance relied substantially on the tourism characteristics of the locality and that tourism characteristics are arguably the most important of the Section 26 factors for consideration. Additionally the Commission's decision does not recognise the tourism credentials of the Bargara region, as demonstrated by the following extracts from the decision: Paragraph 97: 'Bargara is the largest township on the Coral Coast of Queensland and has attracted "tourism" status under the Trading Hours Order.' Paragraph 102: 'Bargara and its immediate surroundings are regarded as a tourist destination. There is an extensive range of tourist activities within the area.' Paragraph 104/105: 'The applicant stated that Bargara is the largest township on the Coral Coast region. Bargara offers an assortment of accommodation, dining facilities and activities catering for locals and tourists alike. Bargara is a starting point for tourists wishing to explore the area's aquatic life with reef trips, diving courses and the turtle sanctuary. Tourists are also drawn to the Woongarra Marine Park as well as a range of beaches in or around Bargara.' Paragraph 110: 'There is little doubt that the area in question is a tourist destination.' -- 2 of 5 -- 3 (n) In the circumstances outlined the applicant contends that it would be appropriate for the Commission to re-open the proceedings and allow the presentation of further submissions.". [3] The application for re-opening was mentioned before the Full Bench on 2 September 2010. On that occasion directions were issued for the filing of outlines of submissions in support of, and in opposition to, NRA's application, with the matter to be the subject of a hearing on Friday 3 December 2010. Submissions in support of the application for re-opening [4] In the course of its submissions NRA essentially restated the points made by Mr Black (above) in his application for re-opening. [5] However, NRA advanced three additional propositions, as follows: • section 320 of the Industrial Relations Act 1999 (the Act) provides that the Commission is not bound by technicalities, legal forms or rules of evidence and may inform itself on a matter it considers appropriate in the exercise of its jurisdiction; • it would be appropriate for the Commission to re-open this matter to admit the Council resolution of 7 October 2008 and have that resolution in mind in considering whether to amend its decision of 12 July 2010; and • Councillor Barnes' evidence, which was apparently discounted by the Commission on the basis it was personal evidence with a lack of supporting data, included available statistical data from Tourism Australia which Mr Barnes was personally aware of due to his position on the board of Bundaberg Region Tourism and as President of the Coral Coast Chamber of Commerce and Tourism. There is no other statistical data available for the specific area of Bargara. [6] NRA also repeated its request that it be given the opportunity, by way of re-opening, to address the Commission further on the availability of tourism and population data as well as to seek direction from the Full Bench about "what other means might be available to satisfy the Commission's requirements.". Submissions in opposition to the application for re-opening [7] Neumann and Turnour Lawyers, who appeared for the Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) (QRTSA), stated, by way of a preliminary issue, that s. 75 of the Industrial Relations (Tribunals) Rules 2000 required an application to re-open a matter pursuant to s. 280 of the Act to be in the non-Chapter 12 approved form. In this instance, the application was deficient in that it had been presented in accordance with Form 1A - Application in Existing Proceeding, whereas it should have been made utilising Form 1 - Application Starting a Proceeding. [8] Turning to the substance of the application, QRTSA acknowledged that there is provision under s. 280 of the Act for proceedings to be re-opened in certain circumstances but highlighted that NRA had failed to demonstrate a suitable basis upon which the Commission might contemplate re-opening the earlier proceedings. [9] QRTSA highlighted the decision of President Hall in Raymond Dibb v AVCO Financial Services Pty Ltd2 at 391 where his Honour said: "The correct approach is that taken by Moynihan, President in Re: Federated Engine Drivers' and Firemens' Association 126 QGIG 340 at 341, viz the applicant must show that 'some vital and relevant material which was not available at the hearing is now available'.". [10] On the basis of the President's decision in Dibb (ibid), QRTSA submitted that NRA had been unable to substantiate that the material it now sought to have the Commission consider was not available at the time of the hearing. [11] In this respect, QRTSA said the resolution of the Bundaberg Regional Council on 7 October 2008 pre-dated the hearing of NRA's application in the first instance. As such, the resolution was available well prior to the hearing. [12] Further, the transcript of proceedings shows that the Applicant attempted during the original proceedings, by way of an impromptu oral application during the examination-in-chief of Councillor Barnes, to have the Council resolution included in the record of proceedings. Such attempt was refused by the Full Bench. [13] In addition, the Bundaberg Regional Council did not formally involve itself as a participant in the original proceedings nor did it inform the Commission of its position in relation to NRA's application before the matter 2 Raymond Dibb v AVCO Financial Services (2000) 164 QGIG 390. -- 3 of 5 -- 4 concluded. In such circumstances it was correct for the Full Bench to record in its decision (at [144]) "The Council has not expressed a view on this application.". [14] All things considered, NRA had ample opportunity to bring the Regional Council's resolution before the Full Bench in the proper fashion but had failed to do so. [15] On the issue of the apparent discounting of Councillor Barnes' evidence, QRTSA noted that whilst NRA complained that the Commission had discounted Councillor Barnes' generic statements about the level of tourism and the like, it nonetheless acknowledged it would be unable to overcome that situation because there was no objective data available to support the contentions of Councillor Barnes. QRTSA said that whilst this fact might be inconvenient for NRA it simply served to reinforce the Commission's reluctance to apply any significant weight to the evidence of Councillor Barnes. Further, applying the earlier "discretion" test of President Hall (citing President Moynihan) there was no new material available, on the Applicant's own admission, for the Commission to consider in terms of re-opening the earlier proceedings. [16] Finally, QRTSA submitted it would be impossible for NRA to properly argue that the public interest would be served by the re-opening of the present matter. Firm grounds were needed to support the extraordinary measure of re-opening proceedings because many businesses within Bargara had received and acted upon the final determination of the Commission given in July 2010. Simply put, NRA had failed to demonstrate any reasonable basis upon which the matter might be re-opened. Submissions of NRA in reply [17] At the outset NRA conceded that it had made its application for re-opening using the wrong Form and asked the Commission to exercise its discretionary powers to accept the application in the Form lodged (see s. 274(1) and s. 273(2)(b) of the Act). [18] As to the substance of its application for re-opening, NRA reflected the view that an Applicant in a re-opening application must show "some vital and relevant material which was not available at the hearing is now available", stating that that was not the sole consideration. In other proceedings President de Jersey (QNU v Aged Care Queensland Inc3 ), citing Walsh J in Witten v Lombard Aust Ltd4, and Bloomfield C (in BCC v ARTBU5 ) both highlighted that the power to re-open proceedings was discretionary. [19] In the former decision, President de Jersey said: "Section 46 of the Act accords an unfettered discretion to reopen. Had the legislature intended to limit the exercise of that discretion in any particular way, it could have done so, but has not.". [20] Relying on these decisions, as well as its earlier submissions, NRA submitted that it would be appropriate, in all of the circumstances, for the Full Bench to re-open the proceedings to allow the presentation of further material and submissions. Conclusion [21] While the relevant authorities make it clear that the power to re-open a proceeding is clearly discretionary the same authorities also make it clear that the discretion must not be exercised lightly or without good reason. In this case NRA's application to re-open seems, with respect to that organisation, to be a case of "a party wise in hindsight and enlightened by failure" seeking to retrieve its position (see decision of Moynihan P in Re: Federated Engine Drivers' and Firemens' Association6). [22] NRA had ample opportunity to introduce the resolution of the Bundaberg Regional Council as part of the evidence it was required to prepare prior to the commencement of proceedings. Councillor Barnes, who appeared in his personal capacity as a member of the Board of Bundaberg Region Tourism and President of the Coral Coast Chamber of Commerce and Tourism, was NRA's witness. Despite also being the Councillor who moved the resolution that Council support NRA's application at the Bundaberg Regional Council meeting on 7 October 2008 neither he, nor NRA, sought to include any reference to it in his evidence. [23] In our view it would be contrary to the public interest to re-open proceedings to allow that oversight to be corrected, especially in circumstances where the Full Bench ruled against Mr Moore's late oral application to tender the resolution during his examination-in-chief of Councillor Barnes (see Transcript page 5-19 to 20). 3 Queensland Nurses' Union of Employees v Aged Care Queensland Inc (1996) 152 QGIG 1857. 4 Witten v Lombard Aust Ltd (1968) 88 WN (Pt 1) NSW 405 at 411. 5 Brisbane City Council v Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (2002) 171 QGIG 104. 6 Re: Federated Engine Drivers' and Firemens' Association (1987) 126 QGIG 340. -- 4 of 5 -- 5 [24] Similarly, there is no basis upon which the matter might be a re-opened for the purposes of hearing new submissions, or receiving evidence, about the generic data canvassed by Councillor Barnes during the course of his evidence. Ample opportunity was provided to Mr Moore to present and/or deal with all statistical and other data relevant to the issue of tourism numbers during the course of the proceedings. If there is a shortage of applicable data then re-opening proceedings to hear about such shortage will serve no useful purpose. [25] Finally, it is trite to state that it is up to an Applicant to prove its case by producing sufficient evidence and argument to satisfy a Tribunal or a Court of the merits of its application. If an Applicant is dissatisfied with the approach and/or reasoning of a Tribunal or a Court it may pursue the matter by way of appeal. However, it is not appropriate for an Applicant to seek to re-open proceedings in order to advance additional material or arguments in support of a re-consideration of an unsuccessful application when, by reasonable endeavour and care, it could have produced that material or those arguments in the first instance. [26] For the foregoing reasons we refuse NRA's application to re-open proceedings in Matter No. TH/2008/4. Accordingly, we dismiss Matter No. B/2010/27. [27] The Commission determines and orders accordingly. D.A. SWAN, Deputy President. A.L. BLOOMFIELD, Deputy President. G.K. FISHER, Commissioner. Hearing Details: 2010 2 September 3 December Released: 25 February 2011 Appearances: Mr J. Moore for National Retail Association Limited, Union of Employers. Mr J. Huang of Neumann Turnour Lawyers for Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers). Ms L. Hogg of Sciaccas Lawyers for Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees. -- 5 of 5 --