Coffee Club v Clipway Pty Ltd [1996] RSLT 19

[1996] QRSLT 19 RETAIL SHOP LEASES ACT 1994 In the matter of Dispute No. 67 of 1995 COFFEE CLUB - Claimant - and - CLIPWAY PTY LIMITED - Respondent MONETARY JURISDICTION OF THE TRIBUNAL REASONS FOR DECISION Given on 29 March 1996 in Brisbane -- 1 of 6 -- Coffee Club-v-Clipway Ruling - Page 2 When this dispute came before the Tribunal on 4th March 1996 I received preliminary submissions from Counsel for the parties and written submissions from Counsel for the complainant Lessee as to the extent of the Tribunal's monetary jurisdiction in disputes concerning "existing retail shop leases", as defined in Section 5 of the Retail Shop Leases Act 1994 ("the 1994 Act"), and, after reading the written submissions, I received further oral submissions from Counsel for the parties. Counsel for the lessee submitted that the Tribunal's monetary jurisdiction is unlimited when the Tribunal deals with a dispute concerning an "existing retail shop lease" and that the lease before the Tribunal is an "existing retail shop lease" as defined. That submission had to be successful if the Tribunal were to proceed with the hearing of the dispute, because the amount claimed, in excess of one million dollars, is far outside the limit imposed by Section 109.(1)(c) of the 1994 Act on the Tribunal's jurisdiction, namely the monetary limit of a District Court which, at the relevant time was, and is, $200,000. It is quite clear that the lease, the subject of this dispute, is an "existing retail shop lease" as defined. I so ruled. The significance of that fact, in the submissions of Counsel for the Lessee, is that Section 14.(1) of 1994 Act provides, so far as is relevant, that the implied conditions in part 3 of the Retail Shop Leases Act 1984 ("the 1984 Act") to continue to apply to an existing retail shop lease notwithstanding the substitution of the 1994 Act for the earlier Act. One of the conditions implied in all retail shop leases by the 1984 Act is a condition that the Lessor will pay to the Lessee compensation under certain circumstances, and that a dispute as to the amount of the compensation is -- 2 of 6 -- Coffee Club-v-Clipway Ruling - Page 3 referable to mediation under the 1984 Act, and if mediation is unsuccessful then to the Tribunal constituted under that Act, without limit as to monetary jurisdiction. It is noted that Section 14.(1) of the 1994 Act does not specifically continue the sections of the 1984 Act which constituted the Tribunal and conferred jurisdiction on it. Those parts of both the 1984 Act and the 1994 Act which set up the respective Retail Shop Lease Tribunals are clearly procedural, in that they prescribe the procedure to be followed by a party claiming, inter alia, compensation under the implied conditions implied into retail shop leases by the respective Acts. The substitution of the procedures laid down in the 1994 Act for those previously laid down by the 1984 Act does not affect the substantive rights of either a lessor or a lessee. While it is the ordinary rule that in the absence of some clear statement to the contrary an Act will not be assumed to have retrospective operation (see for example Wilson -v- Moss (1909) 8 C.L.R. 146 cited by Counsel for the Lessor), that assumption (with certain presently irrelevant exceptions) does not apply to a procedural statute - see Maxwell v. Murphy (1957) 96 C.L.R. 261 where Dixon C.J. announced the general rule in a passage at page 267 and Fullagar J. at page 286 dealt with the distinction between procedural and other statutes. For examples see the third edition of D.C. Pearce and R.S. Geddes "Statutory Interpretation in Australia" at pages 189 and 190. -- 3 of 6 -- Coffee Club-v-Clipway Ruling - Page 4 Those sections of the 1994 Act setting up the Tribunal and conferring jurisdiction upon it are procedural and have retrospective operation restricting the Tribunal's monetary jurisdiction. Section 15.(1) (c) of the 1984 Act does not extend the jurisdiction in monetary amount of a Tribunal constituted under the 1994 Act. The latter Tribunal has a specific function appearing in Section 108 of the 1994 Act namely "to hear retail tenancy disputes that are within a Tribunal's jurisdiction and it is appointed to hear." The term "retail tenancy dispute" is defined in the 1994 Act to mean "any dispute under or about a retail shop lease, or about the use or occupation of a leased shop under a retail shop lease, regardless of when the lease was entered into". Thus the dispute before the Tribunal on 4 March 1994 was a "retail tenancy dispute", but it was not necessarily within the Tribunal's jurisdiction. As mentioned above, Section 109.(1)(c) of the 1994 Act expressly deprived the Tribunal of jurisdiction, because the amount or damages in dispute was more than the monetary limit. The 1994 Act, by its procedural provision containing the extent of the Tribunal's monetary jurisdiction, does not affect any substantive rights, because a party to such a dispute is not deprived of its entitlement to proceed in some other forum where a Tribunal refuses to hear a dispute because it is of the opinion that the dispute is not within its jurisdiction - see Section 94.(1)(d). In this instance the tenant was empowered to pursue a claim for compensation exceeding the amount of the Tribunal's jurisdiction in the Supreme Court of Queensland or some other appropriate forum. -- 4 of 6 -- Coffee Club-v-Clipway Ruling - Page 5 Counsel for the Lessee submitted that Sections 20.(1)(b) and (c) of the Acts Interpretation Act 1954 operated to preserve the entitlement of the lessee to payment of compensation in accordance with the provisions of the 1984 Act. Clearly that submission is correct. He submitted further that Section 20.(2) of that Act enabled the lessee to enforce a right as if the 1984 Act had not been repealed or amended or expired. So far as that submission is limited to the entitlement of the lessee in this case to pursue and enforce a claim for compensation under the condition implied by the 1984 Act, it is correct. But neither submission touches upon the procedure involved in pursuing a claim. Simply, the lessee may pursue his claim, but not in the Retail Shop Lease Tribunal under the 1994 Act. That Tribunal, being constituted under that Act, has only the jurisdiction conferred upon it by the 1994 Act. Following my ruling that the Tribunal had no jurisdiction to hear dispute No. 67 of 1995, Counsel for the lessee submitted that the Tribunal has power to hear that dispute in conjunction with three further disputes (which had been lodged and referred to mediation without settlement) and that the Tribunal in hearing all four disputes together could order the payment of compensation up to the maximum amount of $200,000 in each dispute. It was submitted that each claim making up the dispute in Dispute No. 67 of 1995 could be treated separately and that the Tribunal could award up to $200,000 compensation in respect of each such claim. I ruled that Dispute No. 67 of 1995, being instituted by the filing of one Notice of Dispute, is only one dispute and that the maximum sum the Tribunal could award by way of compensation for all claims in that dispute is $200,000. -- 5 of 6 -- Coffee Club-v-Clipway Ruling - Page 6 Further, I held that Dispute No. 67 of 1995 really combined the disputes referred to in the separate Notices and that therefore the Tribunal would not hear it and the other three disputes together. Alternatively, if Dispute No. 67 of 1995 were withdrawn, then the Tribunal would hear the other disputes separately but would rule that the statements of evidence in respect of each separate dispute be filed and served on the Lessor and that the Lessor would be given time to reply; while if Dispute No. 67 were amended by reducing the total sum claimed to $200,000 and the other disputes withdrawn, the Tribunal would hear Dispute No. 67 of 1995. (Sgd) Chairman -- 6 of 6 --