Cypressvale Pty Ltd & Anor v Retail Shop Leases Tribunal [1994] QSC 187

IN THE SUPREME COURT OF QUEENSLAND Writ No. 312 of 1994 Brisbane Before Mr Justice Shepherdson [Cypressvale Pty Ltd & Anor v. Retail Shop Leases Tribunal] BETWEEN CYPRESSVALE PTY LTD First Applicant and FERNMEAD PTY LTD Second Applicant and RETAIL SHOP LEASES TRIBUNAL Respondent JUDGMENT - SHEPHERDSON J. Judgment delivered 25 July 1994 CATCHWORDS: COUNSEL: SOLICITORS: HEARING DATE: Administrative Law- Judicial Review Act 1991 Retail Shop Leases Tribunal - reasoned decision - failure to state adequate reasons in certain respects- s.18(2) Judicial Review Act and s.50 Retail Shop Leases Act apply - applicants must show denial of natural justice before review open - whether failure to state adequate reasons a denial of natural justice. Muir Q.C. & Batch Kreis Barry & Foote T I A for Michael A. Smith 16 June 1994 -- 1 of 22 -- ) IN THE SUPREME COURT OF QUEENSLAND BETWEEN CYPRESSVALE PTY LTD and FERNMEAD PTY LTD and RETAIL SHOP LEASES TRIBUNAL JUDGMENT - SHEPHERDSON I Judgment Delivered 25 July 1994 --- -~ ~-~---~--~ --~-----, No. 312 of 1994 First Applicant Second Applicant Respondent ) By this application the two abovenamed applicants seek a review under section 43 of the judicial Review Act 1991 of a decision dated 12 April 1994 of the abovenamed ) respondent Retail Shop Leases Tribunal. By way of an alternate claim a review under section 20 of the Judicial Review Act was also sought, but counsel for the applicants in effect conceded that review under section 20 was not open because the decision was not of an administrative character (see section 4 judicial Review Act). The respondent is constituted under the Retail Shop Leases Act 1984 and the decision dated 12 April 1994 is contained in a document entitled "Reasons for Decision" in disputes between the above applicants as tenants and Australian Mutual Provident Society as landlord. The applicants conducted restaurants in Pacific Fair Shopping Centre. -- 2 of 22 -- 2 By its decision the respondent decided that the first applicant was entitled to $60,000 total compensation from the Australian Mutual Provident Society ("the Society") and the second applicant was entitled to $50,400 total compensation from the Society. The application states that the Society was ordered to pay the applicants the above respective sums but this does not truly reflect what was said in the reasons for the decision. I should at this stage note the following matters:- 1. By order dated 31 May 1994 made in this application, Dowsett J. noted that the respondent should abide the order of the court and that the respondent be excused from attendance at any further hearing of the application, and further that the respondent should be given two days notice of any argument on the question of costs which might affect the respondent should such argument arise; 2. By a separate application no. 313 of 1994 the same above applicants have sought review under section 43 (and alternatively under section 20) of the same decision. In that application the Retail Shop Leases Tribunal is the first respondent and the Society is the second respondent; 3. The grounds in application no. 313/94 differ from those in application no. 312/94 although many are common to both; 4. The Society is not a party to application 312/94 - it is aware that application 312/94 was to be heard by me on 16 June 1994, because immediately before the hearing of application 312/94 began it appeared before me at a time when both applications 312/94 and 313/94 were being discussed; 5. In argument before me on application 312/94 the applicants have effectively limited their grounds for review to the claim of denial of natural justice based on alleged failure by the tribunal to give reasons or adequate reasons for certain findings. ( ( ( ( -- 3 of 22 -- -,- --~----- ------- ) ) 3 Effectively then the hearing of application 312/94 was conducted ex parte before me on 16 June 1994. The Retail Shop Leases Tribunal is constituted by section 28 of the Retail Shop Leases Act 1984. It consists of three persons appointed as members by Order-in-Council made on ·the recommendation of the Minister ("Minister" being defined in s. 4 of the Act). The Chairperson of the Tribunal is required by subsection 28(2) of the Act to have been either a Judge of the Supreme Court or District Court or a barrister or a solicitor of the Supreme Court of at least five years standing. The jurisdiction and functions of the Tribunal are established by sections 32 and 36 of the Act. Under section 32 its function includes hearing any dispute which is within its jurisdiction that is referred to it pursuant to the provisions of the Act. It must keep a written record of the proceedings before it and a record of the documents produced in respect of each dispute referred to it (subsection 32(1)(ba)). Questions of fact are decided by a majority of members constituting the Tribunal. ) Questions of law are decided by the chairperson alone (section 33). By section 38 of the ) Retail Shop Leases Act 1984, for the purpose of a Tribunal's exercise of its jurisdiction the prescribed provisions of the Commissions of Inquiry Act 1950 apply in relation to a Tribunal and those prescribed provisions are set out in subsection 38(2). In the present case each of the applicants held a retail shop lease (within the meaning of "retail shop lease" as defined in section 4 of the Retail Shop Leases Act) and claimed ·compensation from their landlord the Society relying on subsection 15(1)(a) of the Retail Shop Leases Act.. As is said in the decision of the Tribunal their claims were "for compensation for inhibition of access, inhibition or alteration of customer flow, and a significant disruption of trading or failure to terminate such disruption under section 15(a)(iii) a~d (iv)." -- 4 of 22 -- 4 In its reasons for decision dated 12 April 1994 the Tribunal made the following findings of fact:~ "1. The Fourth Period (this covers the period 12 October 1992 to late 1994.) ... As best we can, and not always following the same reasoning, we have concluded that 15% of the decline is pedestrian flow past both the claimants' businesses was due to the actions of the landlord in the section referred to in the Chairman's decision on section 15(a)(iii) and 85% due to the actions of the occupants of the new Arcade and its surroundings. 2.G. The final Award - Le Basin Restaurant (Fernmead Pty Ltd) We have set out the reasons and the factors which we have taken into account. We have looked at the figures prepared by both Mr Calabro and Miss Micalizzi. We have made a judgment in the manner which we have indicated. We have come to the conclusion that the compensation to which this claimant is entitled for the period from February 1990 to the 30th September 1991 is $24,000. We have decided that no compensation is payable for the period October 1991 to October 1992. For the period of October 1992 to November 1994, we believe that there has been a total loss of profit to this claimant in the sum of $176,000. The major portion of this is due to the actions of,new tenants in the Centre. From our findings, stated above, the claimant is entitled to 15% of $176,000, that is $26,400 making a total compensation of $50,400. ( ( Lakeside Restaurant (Cypressvale Pty Ltd) ( Adopting the above reasoning and figures, we have assessed compensation for the period to 30th September 1991 as $45,000 and for the period October 1992 to November 1994 as 15% of $100,000 i.e. $15,000 making a total of $60,000." ( Mr Muir Q.C. who appeared before me for the two applicants has submitted that:- (a) a denial of natural justice occurred in the course of the proceedings before the Tribunal; (b) that that denial of natural justice was the failure of the Tribunal to give its reasons for arriving at the above figure of 15% and the above figures of $24,000, $176,000, $45,000 and $100,000. -- 5 of 22 -- ) ) 5 To better understand these submissions it is necessary to note:- 1. By subsection 18(2) of the Judicial Review Act that Act does not affect the operation of a provision mentioned in schedule 1 to that Act. 2. Schedule 1 which is headed "STATUTORY PROVISIONS THAT CONTINUE TO PROVIDE FOR NON-REVIEW OF DECISIONS" lists "Retail Shop Leases Act 1984, section 50". 3. Section 50 of the Retail Shop Leases Act 1984 provides:- "50. The proceedings of a Tribunal and the finding or order of a Tribunal shall not be questioned in any proceedings whatever except proceedings based solely on 1 or both of the following grounds- (a) that the Tribunal had or has no jurisdiction or has exceeded its jurisdiction in the proceedings in question or in m.aking the finding or order in question; or (b) there has occurred a denial of natural justice in the course of the proceedings in question." The applicants rely primarily on s.50(b). There is in my view no doubt that in the present case the Tribunal was required to resolve a lis inter partes. As is said in "Judicial Review of Administrative Action" 3rd Edition by S.A. de Smith at p. 72:- ) "A typical lis inter partes culminates in a decision by a tribunal resolving any disputed questions of law or fact; the legal issues are determined by reference to principles and rules already in being. A tribunal or other deciding body is therefore likely to be held to be acting in a judicial capacity when, after investigation and deliberation, it determines an issue conclusively by the application of a pre-existing legal rule or other objective legal standard to the facts found by it. That interpreting, declaring and applying the law are characteristic hallmarks of the judicial function is too elementary a proposition to call for authoritative support." Although the Tribunal's reasons mentioned that the hearing of the disputes between the above two applicants and the Society was lengthy, it is apparent that the two disputes were heard together and it is not in issue in this court that each party was legally ------ ----------- -- 6 of 22 -- 6 represented and each party called witnesses including witnesses with accounting qualifications giving evidence relating to alleged financial loss. When hearing and determining the dispute the respondent Tribunal was in my view a judicial or at the least a quasi judicial body. The legislative provisions of the Retail Shop Leases Act to which I have already referred clearly indicate this. As such, the Tribunal was obliged to give reasons for its decision delivered on 12 April 1994. A reading of the quite lengthy decision shows clearly that the Tribunal was well aware of that obligation. However, it is necessary to look more closely at cases concerning this obligation and the extent to which a judicial or quasi judicial body is obliged to comply with that obligation. This is because of the basis on which Mr Muir submitted that a denial of natural justice occurred in the proceedings before the Tribunal. In Pettitt v. Dunkley (1971) 1 NSWLR 376, a judgment of the New South Wales Court of Appeal, Asprey 1.A. said (at p.382):- "In my respectful opinion the authorities to which I have referred and the other . decisions which are therein mentioned establish that where in a trial without :. a jury there are real and relevant issues of fact which are necessarily posed for judicial decision, or where there are substantial principles of law relevant to the determination of the case dependent for their application upon findings of fact in contention between the parties, and the mere recording of a verdict for one side or the other leaves an appellate tribunal in doubt as to how those various factual issues or principles have been resolved, then, in the absence of some strong compelling reason, the case is such that the judge's findings of fact and his reasons are essential for the purpose of enabling a proper understanding of the basis upon which the verdict entered has been reached, and the judge has a duty, as part of the exercise of his judicial office, to state the findings and . the reasons for his decision adequately for that purpose. If he decides in such a case not to do so, he has made an error in that he has not properly fulfilled . the function which the law calls upon him as a judicial person to exercise and such a decision on his part constitutes an error of law." In the same case Moffitt 1.A. with whose reasons Manning 1.A. agreed, in speaking of a situation where there were mixed questions of law and fact, said (at p.390):- "A difficulty ... arises in a case ... where there is such a mixed question of fact and law that any or particular questions of law understandably are not raised and perhaps cannot by reasonable foresight be perceived, unless and until the ( ( ( ( -- 7 of 22 -- ) ) 7 facts are found in a particular way. It is possible that the questions of law may only arise if a number of facts are found in a way which is quite unexpected. If the usual and proper course is adopted in such a case, the basis of the decision will appear, so that if there is an error of law it will appear directly or by inference. In this way litigants' rights to have the case determined in accordance with law and to appeal if it is not, are preserved. It is against this background that the judicial duty to give reasons must be examined in order to determine when error arises in giving no reasons. It is neither possible nor desirable precisely to define the area of that duty. However, at least, if a case involves mixed questions of fact and law and it is such that once the facts are determined in a particular way or ways its resolution will involve some considerations of law, it is the duty of the judge, unless there are exceptional circumstances, to give some indication of the basis of his decision. The purpose of so doing, of course, is directed to indicating his decision on the law either directly or by inference from the facts he has found. To some extent, because the requirement to give reasons depends on the nature and circumstances of the case, it is properly within the decis,ion and discretion of the trial Judge to determine whether reasons ought to be given. However, as in other cases of judicial discretion, it may be possible for an appellate court to conclude from the mere circumstances of the case or any reason assigned that the decision to give no reasons proceeded on some error in principle as to the duty involved." Pettitt v. Dunkley which was a case where a trial judge gave no reasons for his verdict, has been widely applied. One such decision was Soulemezis v. Dudley (Holdings) ) Pty Ltd (1987) 10 NSWLR 247, also a decision of the Court of Appeal of New South Wales ) concerning an appeal from the Compensation Court of New South Wales. At p.258 of that decision Kirby P. in speaking on this topic of judicial duty to give reasons said, after referring to Pettitt v. Dunkley said:- "Many other explanations for and justification of the judicial duty to state reasons have been advanced. For example, J. Rawls in his Theory of Justice (1972) at 133 has suggested that the requirement that judges give reasoned decisions which can be debated, attacked and defended amounts to an important constraint on the judiciary's exercise of power; see also D.L. Shapiro "In Defence of Judicial Candour" (1987) 100 Harvard L Rev 731 at 737. This is a consideration of particular importance in the instant case because of the fact that appeals are limited to questions of law. That does not exempt the judge from logical and reasoned decisions on questions of fact, duly justified where they have been contested. On the contrary because the judge is in this respect the final arbiter, and is not a juror, the duty to expose his or her reasons, however briefly, is enhanced, not diminished." -- 8 of 22 -- 8 In deference to Mr Muir's argument I mention also a decision of the Full Court of the Supreme Court of South Australia- T v. Medical Board (S.A.) (1992) 58 SASR 382 in which the Court concluded that the Medical Practitioners Disciplinary Tribunal constituted under the Medical Practitioners Act 1983 erred in law by not providing adequate reasons for its decision. (see Matheson J. at pp.394-5 and Olsson J. at pp. 408-9) The questions before me are whether in either of the above two passages from the reasons of the Tribunal, the Tribunal made an error of law by failing to state its findings and reasons for those findings adequately for the purposes of its decision and more importantly whether, if there be such errors or error of law a denial of natural justice has occurred. In my view, the present case being one of judicial review in which there are limited grounds for review, (see section 50 Retail Shop Leases Act) and one where failure to adequately state reasons for findings of fact may result in an error of law, the above quoted remarks of Kirby P. from Soulemezis are important. Those remarks are supported by what was said by Mahoney J .A. and McHugh J .A. at pp.269 and 279 respectively of the same case. I shall mention only what Mahoney J .A. said (at p. 269) when his Honour commented upon part of the reasons for judgment of Gibbs C.J. in Public Service Board of New South Wales v. Osmond (1986) 159 CLR 656 at 666-667:- "First the reasons given must be sufficient, where there is a right of appeal, to allow that right to be exercised. Secondly, the giving of reasons is not limited to cases where there is a right of appeal: there are reasons in the nature of the judicial process which may require that reasons be given as an incident of the decision in question. And, thirdly, the giving of reasons is a normal but not a universal incident of the judicial process: there are some cases, or kinds of cases, where they need not be given. Insofar as it may be relevant for me to do so, I would agree with each of these and see them as applicable in determining what reasoning of fact a Judge is under pain of error of law, required to set forth in his judgment." ( ( ( ( -- 9 of 22 -- 9 I turn now to the two aspects of the reasons in which, on Mr Muir's submissions, the Tribunal erred in law and brought about a denial of natural justice sufficient to justify a review by this Court. 1. The 15% Finding This part of the reasons should not be examined in isolation from the rest of the reasons. The reasons are structured. Part A headed "The Nature of the Claims" largely concerned the Chairman of the Tribunal dealing with "certain legal issues raised during and at the end of this lengthy hearing". Before turning to these it is important to bear in mind that as the reasons for decision ) said, the applicants' claims were for compensation for inhibition of access, inhibition or alteration of customer flow and a significant disruption of trading or failure to terminate such disruption under subsection 15(a)(iii) and (iv). The statute in question (subsection 15(a)(iii)) specifically mentioned "the flow of customers to any retail shop or retail shops" in a retail shopping centre. ) Two of the "certain legal issues" referred in Part A were:- ) said:- (a) "2. (How) The words "inhibits or alters the flow of customers" are to be interpreted." (b) "4. Future increases in pedestrian flow." In dealing with the second of these particular matters, the Tribunal in its reasons "Can the Tribunal take into account increased flow of potential customers in the future? This relates to the almost certain opening of Target and Toys -R- Us in late 1994 in the premises previously occupied by McDonnell and East. The contention is that the flow of potential customers past the two claimants' restaurants will increase substantially. The claimants contend that this is a fortuitous event such as an increase in population, an increase in tourist trade, or an improvement in the economic climate, and it is something for which the respondent landlord cannot claim a benefit. They compare it to a decrease in flow brought about by the converse events or the decline of a large trader. -- 10 of 22 -- 10 There is evidence that the respondent landlord will have to make and is making substantial structural alterations to the existing McDonnell and East building by way of partitioning, internal lifts and steps, other major internal changes, new entrances and exits and external escalators. The Chairman's ruling follows what he has said above with regard to setting off benefits of expansion. The Tribunal must look at the facts. It is open to the Tribunal to find that at least part of the increase of flow is due to the landlords actions in the physical sense of building changes and alterations. If the Tribunal does this aspect into consideration, it must examine what the flow would have been if the respondent had not commenced its program of extensions and refurbishment over the years." In making the above rulings the Chairman (or Chairperson as he is called in the Act) was deciding questions of law before the Tribunal (s. 33(2) Retail Shop Leases Act). Part B of the reasons sets out the relevant "History" of Pacific Fair Shopping Centre ("The Centre") from its opening in May 1977 to the date of the hearing before the Tribunal which appears to have been in early 1994. Part C of the reasons is headed "Future Probabilities" and it commences:- "The Tribunal finds that it is highly likely that two new businesses will open in the premises previously occupied by McDonnell and East. These businesses are Target Stores and a store called "Toys -R- Us"." Part D is headed "The Trading Experience" and Part E is headed "The Redevelopment". In Part E the Trih\.mal divided the redevelopment into certain stages which as it said corresponded to the periods which the Tribunal examined for the purposes of assessing any compensation. Those periods were:- 1. From February 1989 to February 1990 when the bridge over the Tallebudgera Creek was constructed and minor earth works and other minor works were performed within The Centre. 2. From February 1990 until 23 September 1991 during which time major earth works were commenced in respect of a new Myer Building, the rear road to the K Mart was closed and a new expanded Myer store was opened on 23 September 1991. Of this period the Tribunal said (in Part E):- ( ( ( ( -- 11 of 22 -- ) 11 "We accept that during this period there was major construction throughout the Centre and there was interference which caused compensable loss to the claimants. We deal with this more fully below." 3. From 23 September 1991 when Myer opened to 12 October 1992 when the area known as "The Arcade" opened. I do not repeat all the findings which the Tribunal made in Part E in respect of this period but I do note that the Tribunal's findings include the following:- "The claimants allege that the attractiveness of the new Arcade and the creation of other features to which we refer briefly below has caused a substantial change in customer flow passed their businesses. Among the other factors alleged are the situation and opening of a wide California Avenue leading directly from the north west car park and causing pedestrians to walk directly from carparks to Oxley Square ... ". Other matters are ·mentioned which I see no need to repeat but I simply .comment that the Tribunal at this stage obviously had in mind the allegations of the applicants as to matters which it was said caused· a substantial change in customer flow past their businesses. 4. The period from 12 October 1992 whenThe Arcade opened and other changes 5. had been completed until late 1994, when the Tribunal contemplated the opening of the Target store and Toys -R- Us. The period subsequent to late 1994. Part F is headed "The Assessments". The Tribunal began Part F by saying:- "We attempted to look at the various periods and the effect which changes for which the respondent is liable had on the business of the two claimants." The Tribunal then proceeded to examine each period and it was during the Tribunal's examination of the fourth period the 15% statement was made. It is necessary I think to look at that statement in its context, and I now set out all that was said in dealing with "The Fourth Period". -- 12 of 22 -- 12 "We accept that when The Arcade and Tallebudgera Way opened there was a substantial falling off of pedestrian flow past both complainants' restaurants. This was due in part to the attractions and convenience of The Arcade and its surroundings and in part due to the competition of new food outlets. We have already dealt with the reasons why customers would limit themselves to the new area and not venture into the core area. Coupled with this was the novelty aspect, referred to as the "honeymoon period" during which customers were attracted to the new areas to the detriment of the old. The evidence before us is that such honeymoon period may last up to two years. Another factor which contributed to the decline of the pedestrian flow in the core area was the decline in the business being conducted by McDonnell and East. We also accept that the complainants' businesses were in the decline stage in the absence of refurbishment and would have continued to decline even if The Arcade and surrounding buildings had not been constructed. We have examined pedestrian flow as best as we can. In doing so, we have looked at such figures as recorded on the people counters and we have drawn certain comparisons and ratios. We have gained some assistance from the manual count of pedestrians made by the claimants during these proceedings. We have compared the trading figures of those businesses still operating in the core area and which were operating at the commencement of the development in 1989. We have looked at the occupancy costs of businesses in the core area as a proportion of their turnovers and at what stage these reach a point when some of these businesses have become · non-viable, using conventional percentages. We have looked at those businesses including julio's restaurant in the core area, which have expanded and continue to expand since the opening of The Arcade. As best we can, and not always following the same reasoning, we have concluded that 15% of the decline in pedestrian flow past both the claimants' businesses was due to the actions of the landlord in the section referred to in the Chairman's decision on Section 15(a)(iii) and 85% due to the actions of the occupants of the new Arcade and its surroundings." Part G is headed "The final award" and I have already set out the terms of that award. It is apparent from the reasons that the 15% figure relates only to the fourth period- 12 October 1992 to late 1994. In the above quoted extract from the Tribunal's reasons relating to that period the Tribunal has made a number of findings and stated a number of matters at which it has looked including examination of "pedestrian flow". It is apparent from a reading of the above extract that the Tribunal has decided that the decline in pedestrian flow past the claimants' businesses during the fourth period .had two basic ( ( ( ( '~----------------------------------------------------------------------------------------- -- 13 of 22 -- ) 13 causes. One was due to the landlord's actions and the other cause was the actions of occupants of the new Arcade and its surroundings. The Tribunal in fixing the 15% figure has prefaced this finding with the words "As best we can and not always following the same reasoning". Mr Muir has been critical of the Tribunal's use of this phrase submitting that the Tribunal had an obligation to disclose its reasoning and has failed to do so. The apportionment between the two causes is important for the applicants because the percentage attributable to the landlord's actions governs the amounts of compensation actually awarded for this period. In my view, despite all the statements earlier appearing in the above quote of extract from this fourth period and immediately preceding the 15% finding, the Tribunal was obliged ·to give more adequate reasons for choosing the figure of 15%, which is a comparatively small percentage. The application for review states that the first applicant sought about $1.5 million compensation and the second applicant sought about $1.4 million. However, the amounts of the claim do not appear in the reasons and I do not consider that I should consider the size of the claims when determining the matter now before me. In my view, I should, as I do, consider only what appears in the actual reasons in order to decide whether the applicants have shown an error of law amounting to a denial of natural justice. In Connell v. Auckland City Council (1977) 1 NZLR 630 Chilwell j. said (at p.634):- "There is all the ·world of difference between a disappointed litigant and a disturbed litigant. In the latter category come litigants who cannot understand why the decision went against him (sic)." In Soulemezis (supra) Kirby P. adapted these words of Chilwell J. At p.259 he said:- "But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges the judge to state 0 ··--· ___ / -- 14 of 22 -- 14 generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions? if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done. Where it is necessary, for default of reasons, to resort to inferences which point to a reason for the decision of highly dubious relevance to the statute being applied, the result is that an error of law has occurred which this court can and should correct. To adapt the words of Chil well 1. in Connell v. Auckland City Council (1977) 1 NZLR 638 at 634 the failure of a court to afford reasons in such a case may, in a modern community, result in a litigant who is not only "disappointed" but "disturbed". Such a result would be unacceptable precisely because of the statutory limitation on appeals to this court. It would be doubly so because of the strict approach taken by the Court to that limitation. The corollary of the Courts strict approach is the obligation of the Judge of the Compensation Court, by his reasons, to demonstrate, in his determination of relevant factual disputes, that his conclusion amounts to a proper application of the statute." On the face of the document dated 12 April1994, I consider that the applicants are both disappointed and disturbed, because of the failure of the Tribunal to state adequate reasons for choosing the 15% figure. This failure has left the applicants in a situation where they cannot, from a reading of the reasons, understand how the 15% was arrived at. The applicants have satisfied me that in this failure the Tribunal erred in law. 2. The Award Figures I have set out above the "Final Award" as made by the Tribunal. I have not set out in detail what the Tribunal said about Mr Calabro and Miss Micalizzi. It is apparent from the Tribunal's reasons that it found Mr Calabro unreliable and inaccurate. The Tribunal expressly rejected certain of Mr Calabro's figures. Mr Calabro was called on behalf of the claimants and Miss Micalizzi on behalf of the landlord. As to Miss Micalizzi the Tribunal said:- "With regard to Miss Micalizzi, we find no mistake and make no criticism of the figures which she used ... Our reason for not accepting Miss Micalizzi's evidence in total is that we believe that the instructions which she was given were in part wrong and in other parts depend on opinions which are not more than impressions. She was incorrect, on the Chairman's finding, on accepting ( ( ( ( -- 15 of 22 -- 15 the law as it was given to her in certain respects." - an example was then given. When the Tribunal came to make the final award for the second applicant it said - "We have set out the reasons and the factors which we have taken into account." But it did not identify what reasons and factors it did take into account. It also said it had "looked at the figures prepared by both Mr Calabro and Miss Micalizzi. We have made a judgment in the manner which we have indicated". I must say that my reading of the reasons sheds no light on what figures were looked at or the manner in which the stated judgments as to amounts were made. There is no indication how the $24,000 was arrived at. Nor is there any indication how the $176,000 was calculated. I make similar criticisms about the determination of the final award for the first applicant - there is no indication how the figures of $45,000 and $100,000 were calculated. It is important to remember that the Tribunal was obliged by statute to hear and determine the two disputes before it and was obliged to decide questions before it (sections 32 and 33 of the Retail Shop Leases Act). One of these questions was to decide the right to compensation (section 15(1)(a)(iii)) and that having been answered in each applicant's favour in respect of certain periods, another was to fix the amount compensation payable by the landlord (section 15(1)(a)(iii). The Tribunal was, in my view, obliged, as part of its duty to give reasons, to expose in some detail the method by which it calculated the above figures of $24,000, $176,000, $45,000 and $100,000, each of which was relied on by the Tribunal in fixing the amount of compensation. The detail to be exposed should have been sufficient to enable the applicants to see how each sum was calculated. These figures give the appearance of having been rounded out and I do not criticise that practice where it is suitable and appropriate to apply it. The assessment of the amount of compensation in each of these applications will probably of necessity be rather -- 16 of 22 -- 16 imprecise, but in my view the parties, and especially each applicant, were entitled to have the Tribunal expose the method by which it calculated these rounded out figures. Once that is done the applicants will be removed from the category of "disturbed litigants". Again, the Applicants have demonstrated errors of law in finding each of the above four amounts. This leaves me with next question - did such errors of law amount to a denial of natural justice in the course of the proceedings before the Tribunal? Unless this question is answered "yes" the present applications must fail. Natural justice is now called "procedural fairness" (Kioa v West (1985) 159 C.L.R. at pp. 584-5, 600-601 and 632; Ainsworth v Criminal Justice Commission (1992) 175 C.L.R. 564 at 572). Did the above errors of law amount to procedural unfairness by the Tribunal such as to justify the making by me of prerogative orders in the nature of and to the same effect as a writ of mandamus (see ss. 43 and 41(2) Judicial Review Act). "The rules of natural justice are flexible, requiring fairness in all the circumstances, including the nature of the power exercised and the statutory provisions governing its exercise" (per Gibbs C.J. in Kioa v West (supra) at p.563). In the same case Mason J. (as he then was) said (at pp.582-3):- ( ( "It is a fundamental rule of the common law doctrine of natural justice ( expressed in traditional terms that, generally speaking, when an order is made w~ich will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it ... The reference to "right or interest" in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests. The reference to "legitimate expectation" makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest. Looking at the power exercised by the Tribunal which I have earlier described as judicial or quasi-judicial it is apparent that the Tribunal, in accordance with the Retail Shop -- 17 of 22 -- 17 Leases Act, heard and determined the two disputes before it and in so doing, decided the questions before it. In so doing it gave structured reasons for its decisions. I have already set out two of these questions - one was to fix the amount of compensation payable by the landlord Society. The Retail Shop Leases Act does not exclude the rules of natural justice. Mr Muir makes no complaint about the manner in which the proceedings before the Tribunal were conducted. The relief sought being in the nature of mandamus, the following extract from the judgment of Rich, Dixon and McTiernan JJ in R v. War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 C.L.R. 228 at pp.242-3) is relevant:- "In the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal. It may be shown that the members of the tribunal have not applied themselves to the question which the law prescribes, or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void. But the prosecutor who undertakes to establish that a tribunal has so acted ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal's decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies." (see also The Queen v. Alley; ex parte N.S.W. Plumbers & Gasfitters Employee's Union 153 C.L.R. 376 at 384-5). In my view the Tribunal heard and determined the disputes before it. There was no failure in this regard. It did. not refuse or decline to exercise the jurisdiction given it under the Retail Shop Leases Act. What is now sought is a review of that decision on the basis that the errors of law amounted to a denial of natural justi~e. -- 18 of 22 -- 18 The errors of law do not prove an erroneous decision by the Tribunal - the applicants, obviously hope that ultimately, if their applications succeed, they can challenge the correctness of the Tribunal's decision amended in accordance with the orders now sought. Mr Muir pressed me with the decisions of the Full Court of the Supreme Court of Queensland in R v. His Honour Judge Morley and Mellifont (1990) 1 Qd.R 54 and Stead v. State Government Insurance Office (1986) 161 C.L.R. 141. In the first of these cases, the Court concluded that the learned District Court judge because of his erroneous view of the law governing the offence alleged in the indictment, had declined to exercise his jurisdiction to try the indictment according to law. That is very far from the present case. I regard the decision as another example of the use of the writ of mandamus to require a tribunal to perform his or its statutory duty. Stead is rather different. In that. case the learned primary Judge had in effect stopped the appellant's Counsel from presenting argument on a vital issue in the case in respect of which there was conflict in the medical evidence. It is apparent that the High Court applied the general principle that everyone is entitled to a fair trial at which he can put his case properly before the judge with the qualification that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary Judge at the first trial. said:- The High Court treated the case as one of a denial of natural justice and at p.147 "All that the appellant needed to show was that the denial of natural justice deprived him of a successful outcome." I found Stead to be yet another example of the flexibility of the rules of natural justice and of a breach of the rules stated by Mason J in the above quoted extract from Kioa v. West. ( -- 19 of 22 -- -,----------------------------------------------------------------------------------------, 19 In my view the errors of law in the present case are simply errors made within the exercise by the Tribunal of its jurisdiction under the Retail Shop Leases Act. I have been unable to find any authority for the proposition that at common law, a failure by a Tribunal acting judicially or quasi-judicially to give adequate reasons for its decision amounts to a denial of natural justice. In "Statements of Reasons for Judicial and Administrative Decisions" by Michael Akehurst (1970) 33 MLR 154 the author asserts:- "The general rule is that there is no duty to state reasons for judicial or administrative decisions. A Statement of Reasons not required by the rules of natural justice (Fountaine v. Chesterton The Times, August 20, 1968)". I do not have this report. To support the statement in the first sentence Mr Akehurst says in a footnote:- "The authorities are reviewed in Pure Spring Co Ltd v. Minister of Natural Revenue (1947) 1 D.L.R. 501 533-539. See also the cases cited below notes 2- 9." This decision by Thorson P. in the Exchequer Court of Canada does support Mr Akehurst's above proposition. So far as concerns judicial decisions, the law now is that failure to state reasons will amount to an error of law and thus it may be said a duty to give reasons exists. In "Administrative Law" (6th Ed.) Professor Wade says (at p.547):- "It has never been a principle of natural justice that reasons should be given for decisions". A number of authorities are cited including the decision of the High Court of Australia in Public Service Board of New South Wales v. Osmond (supra). In that case Gibbs C.J. (with whose reasons Brennan and Dawson J J agreed) said (at p.662):- "There is no general rule of the common law or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may -- 20 of 22 -- 20 adversely affect the interests, or defeat the legitimate or reasonable expectations of other persons." I pause to say that in part 4 of the Judicial Review Act, the force of the above statement by Gibbs CJ. is recognised because under that part a person entitled to apply under section 20 of the Judicial Review Act may request the decision maker to provide a written statement of reasons in relation to the decision (s.32). In part 4 "decision to which this Part applies" is defined (s.31) but does not include "a decision that includes or is accompanied by a statement giving the reasons for the decision." Part 4 does not assist the present applicants because the Tribunal's decision does not fall within the definition in section 31. In respect of applications under section 43 there is nothing in the Judicial Review Act comparable to Part 4. Mr Flick in his work "Natural Justice" (2nd Ed.) discusses in Chapter 6 the duty to give reasons but I do not understand him to state that a failure by a Tribunal acting judicially or quasi-judicially to give adequate reasons amounts to a denial of natural justice. He does argue that "the time is ... overripe in English lawfor a rethinking of the law relating to reasons." It may be that "procedural fairness" or "natural justice" extends up until the very ( moment when the Tribunal delivered its reasons for its decision. It may be that procedural fairness requires adequate reasons to be given and that a failure in that regard can be treated as a denial of natural justice. I find no authority to support such propositions and Mr Muir did not refer me to any. The situation before me is that although the Tribunal's errors have caused disappointed and disturbed litigants I have the High Court authority of re Bott (supra) which in my view applies to the present case. The provisions of section 18(2) of the judicial Review Act and section 50 of the Retail Shop Leases Act operate in this case. -- 21 of 22 -- -,_-----~-~~-~-·-- --·-·------------------------ ---------- 21 The applicants have failed to satisfy me that as a result of the above errors of law a denial of natural justice occurred in the course of the proceedings before the Tribunal such that a prerogative order in the nature of mandamus should issue. I therefore dismiss the application. -- 22 of 22 --