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  4. Peninsula Development Group (Tannum Sands) Pty Ltd v Retail Shop Leases Tribunal - [2006] QSC 398

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Peninsula Development Group (Tannum Sands) Pty Ltd v Retail Shop Leases Tribunal[2006] QSC 398

Peninsula Development Group (Tannum Sands) Pty Ltd v Retail Shop Leases Tribunal[2006] QSC 398

 

SUPREME COURT OF QUEENSLAND

   

CITATION:

Peninsula Development Group (Tannum Sands) Pty Ltd v Retail Shop Leases Tribunal & Anor [2006] QSC 398

PARTIES:

PENINSULA DEVELOPMENT GROUP (TANNUM SANDS) PTY LTD

(applicant)

v

RETAIL SHOP LEASES TRIBUNAL

(first respondent)

JUSTIN DIEHM

(second respondent)

FILE NO/S:

BS5705 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application for review

ORIGINATING COURT:

Retail Shop Lease Tribunal

DELIVERED ON:

21 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

28 September 2006

JUDGE:

Mullins J

ORDER:

1.The decisions of the first respondent made or given on 24 April, 28 June and 5 July 2006 in Dispute No 2005/0116 between the second respondent and the applicant (“the dispute”) be set aside.

2.The dispute be remitted to a Retail Shop Lease Tribunal which is differently constituted to that which gave the decisions in the dispute on 24 April, 28 June and 5 July 2006 for rehearing and determination according to law.

3.The second respondent pay the applicant’s costs of the proceeding commenced by the application for review to be assessed.

4.The second respondent be granted an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act1973 in respect of the proceeding.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – RETAIL SHOP LEASE TRIBUNAL – whether jurisdictional error or denial of natural justice – where Tribunal refused to issue attendance notice to witness for production of file and to give evidence on relevant issue – where Tribunal made finding on basis of promissory estoppel which was not raised by the parties – where parties not fairly given opportunity to make submission on promissory estoppel

EVIDENCE – FACTS EXCLUDED FROM PROOF – ON GROUNDS OF PRIVILEGE – LEGAL PROFESSIONAL PRIVILEGE – whether party by disclosing some aspects of his solicitor’s advice on the effect of non-exclusivity of use clause in lease had waived privilege to the advice and the instructions on which the advice was based – inconsistency between the disclosure that was made of the advice and the maintenance of the privilege

Appeal Costs Fund Act 1973

Judicial Review Act 1991

Retail Shop Leases Act 1994

Ballymaloe Pty Ltd v Retail Shop Lease Tribunal [2004] 1 QdR 600

Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101

Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297

Craig v South Australia (1995) 184 CLR 163

Mann v Carnell (1999) 201 CLR 1

Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518

Power v Kenny [1960] WAR 57

Telstra Corporation Ltd v Kendall (1994) 55 FCR 221

COUNSEL:

BD O'Donnell QC and AJ Shah for the applicant

MJ Steele for the second respondent

SOLICITORS:

Deacons for the applicant

Forbes Dowling for the second respondent

  1. MULLINS J:The applicant as landlord and the second respondent as tenant were parties to a tenancy dispute before the Retail Shop Lease Tribunal (“the Tribunal”).  On this application for review made under s 43 of the Judicial Review Act 1991 (“JRA”) the applicant seeks an order in the nature of certiorari removing into this Court the decisions of the Tribunal made on 24 April, 28 June and 5 July 2006 for the purpose of quashing or setting aside those decisions and ordering a re-hearing of the second respondent’s tenancy dispute.
  1. The applicant and the second respondent prepared an agreed bundle of documents for the purpose of the application. Page references in these reasons are to the pages of the agreed bundle (AB).

Nature of the dispute

  1. The applicant had built a new shopping centre in Gladstone in 2004 known as Tannum Central. The applicant sent a proposal to the second respondent dated 4 June 2004 setting out the terms and conditions on which the applicant was prepared to consider leasing shop 13 in the centre to the second respondent for the retail sale of surfwear. This proposal noted “We have not, nor will we, agree that yours will be the only business of its type in the centre.” The second respondent indicated his acceptance of the offer on 4 June 2004 by signing the acknowledgements attached to the offer which included an acknowledgement on the part of the second respondent that “The Permitted Usage does not imply any form of exclusivity.”
  1. The applicant’s solicitor sent a letter to the second respondent dated 16 June 2004 enclosing the lessor disclosure statement, agreement for lease and lease. The second respondent engaged solicitor Mr Golinelli to act on his behalf in relation to the lease.
  1. The proposed lease was a “retail shop lease” under the Retail Shop Leases Act 1994 (“the Act”).   Mr Golinelli was required to sign a legal advice certificate under s 22D of the Act in relation to the advice given by him to the second respondent in respect of the proposed lease.  That certificate was signed by Mr Golinelli on 5 August 2004.  It noted as one of the matters on which Mr Golinelli gave advice as “Permitted use and exclusivity of permitted use”.
  1. The second respondent then entered into an agreement for lease and a lease with the applicant of shop 13 in this centre for a term of 3 years which commenced on 14 September 2004. Both documents were signed by the second respondent on 16 August 2004. The permitted use for the premises as set out in the lease was the retail sale of ladies’ and men’s surfwear, equipment and associated products.
  1. Clause 5.2.2 of the lease provided:

“5.2.2The Landlord may allow other tenants in the Centre to carry on the same or similar uses to the Tenant’s Permitted Use.”

Clause 5.22 of the lease provided:

“5.22The Tenant acknowledges that:

5.22.1the Landlord may lease or license any part of the Centre for any purpose which the Landlord considers appropriate (including any purpose for which the Tenant is permitted to use the Leased Premises); and

5.22.2under this Lease, the Tenant acquires no exclusive right to conduct any business within the Centre.”

  1. Early in 2005 the applicant leased premises in the centre to another surfwear retailer which traded under the name RUSH. The second respondent’s trading figures declined. On 28 October 2005 the second respondent lodged a notice of dispute with the Retail Shop Leases Registry.
  1. The allegation made in the notice of dispute was that the second respondent had been approached by Ms Michelle Moss, the letting manager of the applicant, in or about April 2004 and canvassed with a view to becoming a tenant at Tannum Central. The second respondent alleged that he was assured by Ms Moss that no other surf retailing business would be offered a tenancy in the centre and when he requested that the applicant provide confirmation of that in writing, he was told by Ms Moss that the applicant would not give that guarantee in writing, but a further assurance was given by Ms Moss in early June 2004 that the second respondent would be the only surfwear store in the centre. The second respondent alleged that the misrepresentation of exclusivity made by Ms Moss was the sole reason for the second respondent’s decision to enter into the lease. The notice of dispute therefore alleged misrepresentation inducing the making of the lease and unconscionable conduct within the meaning of s 46A of the Act.
  1. The second respondent closed his business on 17 December 2005.

Proceedings before the Tribunal

  1. On 16 January 2006 the Tribunal made directions for the hearing of the dispute on the issue of liability. The second respondent filed a written statement and copies of documents on which he was relying on 21 February 2006. A statement of Ms Moss was filed on 5 April 2006. Further directions were made by the Tribunal on 10 April 2006. The second respondent then filed a statement in reply and the applicant filed a list of points of claim still in issue. The issues identified by the applicant were whether the representation that was alleged by the second respondent was made by the applicant; whether the representation, if it were made, could be false or misleading in the context of the legal documents signed or received by the second respondent including the offer to lease, the lessor’s disclosure statement, the lessee’s disclosure statement, the legal advice certificate, the agreement for lease and the lease; whether the alleged representation caused the second respondent to enter into the lease; and whether the applicant’s conduct was unconscionable, having regard to the fact that the second respondent was independently legally represented and the legal documents signed and received by the second respondent.
  1. By letter dated 19 April 2006 to the Retail Shop Leases Registry the solicitors for the applicant requested that the Tribunal issue a notice pursuant to s 76(1)(c) of the Act requiring Mr Golinelli to attend the Tribunal hearing and to produce his firm’s file in respect of the second respondent’s lease. This request was made after receiving the second respondent’s statement in reply and list of documents. On 20 April 2006 the second respondent provided the applicant with the first page of a letter dated 7 December 2005 from Mr Golinelli’s firm to the second respondent. The Tribunal required the matter of whether such a notice should issue to be the subject of legal argument. That took place on 24 April 2006 which had been set down for the hearing of the issue of liability between the applicant and the second respondent. The second respondent appeared on his own behalf. The applicant was represented by counsel and solicitors.
  1. In support of its application for the issue of an attendance notice to Mr Golinelli, the applicant relied on a paragraph contained in the letter dated 7 December 2005 sent from Mr Golinelli’s firm to the second respondent which noted advice from the mediator that the applicant did not wish to proceed further with the mediation of the dispute and then stated:

“4.Given these circumstances, you will now need to consider pursuing any other possible rights you may have – please keep us informed (from a legal privilege point of view, this firm should continue to represent you – given our earlier recommendations and contrary advice about proceeding with the lease given no exclusivity clauses).  You will need formal signed Statements from other persons who Michelle made representations to etc.”

The applicant therefore sought to inspect Mr Golinelli’s file on the basis that the second respondent had waived legal professional privilege.  The second respondent did not seek to claim legal professional privilege in respect of his solicitor’s letter dated 7 December 2005, as the second respondent was relying on the advice recorded in that letter of the mediator to Mr Golinelli about the applicant’s attitude to the release of the second respondent from his lease at the time of the mediation of the dispute.  The second respondent did, however, claim privilege in respect of the rest of Mr Golinelli’s file. 

  1. During the hearing of this application, the second respondent acknowledged that he knew of the non-exclusivity clause in the written lease prior to signing the lease and the second respondent stated in relation to Mr Golinelli’s advice (AB p219):

“He advised me there was no exclusivity clause.  I already knew about that.  It’s only, as I said, a small centre.  To be told I’d be the only surf store in that centre made logical sense to me.  He wouldn’t double up on anything.”

  1. On the basis that the second respondent claimed that he entered into the lease relying solely on the basis of the representation alleged to have been made by Ms Moss that his would be the only surf store in the centre and that the legal advice he received from Mr Golinelli had nothing to do with his entry into the lease, the Tribunal ruled (AB p221) that the content of the advice given by Mr Golinelli was irrelevant and remained privileged. The Tribunal also ruled (AB p221) that the applicant could seek to establish the second respondent’s state of mind by cross-examination of the second respondent, but not by perusal of Mr Golinelli’s file or cross-examination of the second defendant as to the content of Mr Golinelli’s advice. Counsel for the applicant was also directed by the Tribunal (AB p222) not to ask the second respondent about what instructions he had given to Mr Golinelli.
  1. After this ruling, the Tribunal proceeded to hear evidence. The second day of the hearing was 28 April 2006 on which the balance of the evidence was heard. The parties thereafter filed written submissions.
  1. Despite the direction by the Tribunal that counsel for the applicant not ask the second respondent about what instructions he had given to Mr Golinelli, counsel for the applicant did ask the second respondent whether he had told Mr Golinelli about the representation made by Ms Moss at the time that Mr Golinelli provided the advice about lack of exclusivity in respect of the permitted use under the lease which was referred to in the legal advice certificate (AB p280). The second respondent answered “I can’t remember whether it was that day or not …” (AB p280). When the applicant’s counsel was about to follow up on that answer, the Chairperson intervened.
  1. Counsel for the applicant then cross-examined the second respondent on the contents of Mr Golinelli’s letter of 7 December 2005. When it was put to the second respondent that Mr Golinelli recommended that because there was no exclusivity clause in the lease that he should not proceed to enter into the lease, the second respondent stated (AB p283):

“No, at no time did he tell me not to enter the lease.  What he did tell me was that there was no exclusivity in the lease.”

Counsel for the applicant gave the second respondent an opportunity to comment on an interpretation of the letter of 7 December 2005 that Mr Golinelli was saying that he recommended to the second respondent not to proceed with the lease because there was no exclusivity clause, but that the second respondent told Mr Golinelli that he was still going ahead with the lease despite that.  The second respondent answered (AB p285):

“Mr Golinelli told me that there was no exclusivity in the lease, which is fine.  Everybody knows that there is no exclusivity in the lease.  Then we entered the lease on my understanding that Michelle would ring through that we would be the only surf store in that centre.”

The Chairperson of the Tribunal then refused to allow the second respondent to answer the applicant’s counsel’s question of whether the second respondent had told Mr Golinelli, at the time that Mr Golinelli was giving the advice about no exclusivity in the lease, about the promise that Ms Moss had made (AB p285). 

  1. The second respondent in his written submissions in responding to a submission made on behalf of the applicant that the second respondent received advice and a recommendation from Mr Golinelli that he not enter into the lease (which submission was based on the content of the letter dated 7 December 2005) stated (AB p431):

“The respondent speculates on what Mr. Golinelli may or may not have said.  In any case Mr. Golinelli did tell me that there was no exclusivity in the lease, but nothing more, this has already been covered.  Not what the respondent surmises in point 88.”                 

Tribunal’s decision

  1. The Tribunal published its reasons for decision on 28 June 2006. As a paragraph had been accidentally omitted from those reasons, the Tribunal published an amended decision on 5 July 2006 that was the same as the reasons published on 28 June 2006 with the addition of the paragraph that had been omitted. On the hearing of this application, the parties made their submissions by reference to the decision published on 5 July 2006.
  1. The Tribunal expressed the question to be determined in the dispute as whether the applicant, by its agent Ms Moss, promised the second respondent that the applicant would not exercise its rights in relation to the “tenancy mix” in his particular case (AB p463). On the issue of whether the alleged representation was made, the Tribunal found (AB p467):

“Accordingly, on the central issues in this case we accept the evidence of the Claimant, and reject the evidence of Moss.  On the balance of probabilities, we find that Moss, on several occasions, assured the Claimant that, while he continued to trade as a surf wear supplier in Tannum Central, no other business of that kind would be admitted to the centre.  We find, further, that the claimant reasonably relied on that assurance as an assurance on behalf of the Respondent, and that his reliance was fortified by Moss’s efforts to keep Rush Lifestyle away.  The Respondent, at least so far as the Claimant was aware, held out Moss as wholly and solely in charge of negotiations with potential lessees, so much so that she could claim the power to decide who were acceptable tenants, and who were not.”

  1. The Tribunal found (AB p467) that Ms Moss’ ostensible (if not actual) authority was sufficiently wide and flexible to extend to the promise that the Tribunal found she made to the second respondent.
  1. The Tribunal found (AB p468) that, notwithstanding the provisions of the lease and associated documents, the applicant was estopped from installing another surfwear retailer in the centre while the second respondent traded there. The Tribunal expressly stated (AB p468) that the “judge – made law of estoppel co-exists with sections 46A and s 43(2)(a) of the Act”.
  1. The Tribunal was satisfied (AB p469) that “despite the written transactions” the second respondent had made out its claim for misrepresentation against the applicant which induced the second respondent to enter into the lease (namely that the applicant would not admit a second surfwear shop in competition with the second respondent) and, subject to proof of actual loss or damage, was entitled to compensation under s 43(2)(a) of the Act. The Tribunal did not make a finding that the applicant had engaged in unconscionable conduct. It is not clear from the conclusion of the Tribunal that the second respondent was entitled to compensation under s 43(2)(a) of the Act, how the Tribunal considered its finding of estoppel against the applicant was to be taken into account in the assessment of compensation.

Grounds for review

  1. The primary grounds for review relied on by the applicant are jurisdictional error and denial of natural justice. The applicant submitted that there were four aspects of the Tribunal’s decisions to which those grounds could be applied which were described as:

(a) Golinelli contention is based on a claim of jurisdictional error and denial of natural justice in the Tribunal’s refusal to issue an attendance notice to Mr Golinelli and the restrictions placed by the Tribunal on the applicant’s cross-examination of the second respondent in relation to his dealings with Mr Golinelli;

(b)Misrepresentation contention based on a claim of jurisdictional error in making a finding of misrepresentation against the applicant;

(c)Failure to give adequate reasons contention based on a claim that the Tribunal failed to give any or any adequate reasons for its decision that the second respondent relied on the representation of Ms Moss and/or that the reliance was reasonable;

(d)Promissory estoppel contention based on a claim of jurisdictional error and denial of natural justice in the Tribunal’s making the determination of promissory estoppel when such a finding was not within the scope of the dispute and failing to bring to the applicant’s attention the issue on which the finding of promissory estoppel was based.

  1. As the findings of the Tribunal are not based on the allegation that the applicant engaged in unconscionable conduct, s 88(1) of the Act regulates the grounds on which the Tribunal’s decision can be reviewed under the JRA.  The permissible basis for review is set out in s 88(1) of the Act as:

“(a)the tribunal had or has no jurisdiction, or has exceeded its jurisdiction, in the hearing or in making the order;

(b)there has been a denial of natural justice.”

  1. As to what amounts to jurisdictional error, the observations in Craig v South Australia (1995) 184 CLR 163, 176 are applicable:  see Ballymaloe Pty Ltd v Retail Shop Lease Tribunal [2004] 1 QdR 600, 607 [20].        

Golinelli contention

  1. It was argued by the applicant that the evidence that Mr Golinelli could have given was relevant to several issues before the Tribunal:
  1. whether the second respondent relied on the assurance of Ms Moss at the time he entered into the lease on 20 August 2004, as it was arguable that any advice given by Mr Golinelli to the second respondent about the lack of a binding promise by the applicant in the lease to give the second respondent exclusivity in the centre or to the effect that the second respondent should not enter into the lease may have displaced any reliance by the second respondent on the verbal statements of Ms Moss;
  1. if promissory estoppel formed part of the dispute before the Tribunal, whether it was reasonable for the second respondent to be relying on the alleged assurance of Ms Moss when entering into the lease;
  1. whether the second respondent’s or Ms Moss’ account of their conversation should be believed in the light of the instructions the second respondent gave to Mr Golinelli regarding whether his tenancy would have exclusivity.
  1. Accepting for the purpose of dealing with this argument that Ms Moss made the representation which the Tribunal found she made to the second respondent, it is arguable that it was the type of statement that by its nature would induce a prospective tenant to enter into the lease. Although the second respondent had the onus of proving that he entered into the lease on the basis of that representation, the nature of the representation gave rise to an evidentiary burden on the applicant of showing that the second respondent did not, in fact, rely on that representation: Power v Kenny [1960] WAR 57, 64, 66.  It had been flagged by the applicant in its list of claims that it was an issue to be determined in the dispute whether the representation caused the second respondent to enter into the lease.  The second respondent’s state of mind at the time he entered into the lease was a relevant matter.  It was therefore relevant for the applicant to explore whether the second respondent did rely on the representation of Ms Moss when he was told by Mr Golinelli that there was no exclusivity for his use conferred by the lease.  I do not accept the submission made on behalf of the second respondent that Mr Golinelli’s file was not relevant because the second respondent conceded that Mr Golinelli told him that the lease contained non-exclusivity clauses.  This ignores the relevance of the second respondent’s state of mind.  The nature of the dispute raised as an issue the effect on the second respondent prior to his signing the agreement for lease and the lease of Mr Golinelli’s advice about the lack of an exclusivity of use clause in the lease.  Cf Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297 at paragraph [41].    
  1. This is also illustrated by the speculation of the Tribunal about the advice given by Mr Golinelli when it made the following observations in its reasons in relation to the letter of 7 December 2005 (AB pp464-465):

“Much was made of a letter to the Claimant from his former solicitor, dated 7 December 2005, which asserts that, at some earlier stage, the solicitor gave the Claimant prudential advice not to proceed with a lease containing a no-exclusivity clause – an assertion denied by the Claimant.  This letter does not specify earlier written advice to that effect was given, and we note that it was written when an application to make the solicitor himself a third party was pending.  It does not reveal whether the Claimant told the solicitor of Moss’s promise.  If he did, it may be that the solicitor, as a cautious adviser, told his client that it would be unwise to rely on mere verbal assurances.  No doubt that would have been sound advice, but, as cases cited below clearly indicate, verbal assurances are quite capable of giving rise to equities overriding powers in a written agreement.  In our view, the solicitor’s letter cannot be allowed to determine the result of this inquiry.”

  1. The other basis on which the Tribunal supported its ruling was that Mr Golinelli’s advice was privileged. Apart from disclosing Mr Golinelli’s advice to the extent that it was recorded in numbered paragraph 4 in Mr Golinelli’s letter of 7 December 2005, the second respondent on a number of occasions during the course of the hearing repeated the gist of the advice given to him by Mr Golinelli that “there was no exclusivity in the lease” and denied that Mr Golinelli had recommended against his entry into the lease. The applicant relies on the principle that legal professional privilege may be waived by the party who has the benefit of the privilege by putting into evidence the contents of a privileged document, or asserting the effect or conclusion of a privileged communication, on the basis of inconsistency between the conduct of the party and the maintenance of the confidentiality of the communication: Mann v Carnell (1999) 201 CLR 1, 13[28]-[29]; Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101, 119[65].
  1. It followed from the relevance of the second respondent’s state of mind at the time he entered into the lease, that he was bound to waive privilege in respect of the legal advice he obtained from Mr Golinelli on the lack of an exclusivity of use clause in the lease. In any case, the conduct of the second respondent in the course of the hearing before the Tribunal in disclosing his recollection of Mr Golinelli’s advice and asserting what the advice did not cover amounted to waiver of legal professional privilege in respect of that advice and the second respondent’s communications with Mr Golinelli that provided the instructions on which Mr Golinelli’s advice was given.
  1. Before the Tribunal the applicant submitted that the second respondent’s act in disclosing Mr Golinelli’s letter of 7 December 2005 resulted in a waiver of legal professional privilege by the second respondent in respect of Mr Golinelli’s “whole file” (AB p209). The applicant’s submission on this application was primarily (and properly) directed at waiver of legal professional privilege on a limited basis in respect of the instructions given by the second respondent to Mr Golinelli and the advice of Mr Golinelli relating to the lack of an exclusivity of use clause in the lease prior to the second respondent’s signing the lease.
  1. The Tribunal made an error of law in ruling that the content of the advice given by Mr Golinelli to the second respondent prior to the signing of the lease on the effect in the written documents of there being no exclusivity for the permitted use was irrelevant to the issues in the dispute and privileged.
  1. This was a significant error made by the Tribunal, as it affected the course of the evidence before the Tribunal. The applicant’s cross-examination of the second respondent on a key issue was compromised. The only way to remedy the error is to set aside each of the decisions made by the Tribunal and remit the dispute for rehearing.

Misrepresentation contention

  1. It was submitted by the applicant that the findings of fact made by the Tribunal were that a representation had been made which the second respondent relied upon in entering into the lease, but there was no finding that the representation was false. It was further submitted that the findings of fact made by the Tribunal did not justify the conclusion that the representation made by Ms Moss was a misrepresentation and that to conclude that there had been a misrepresentation (when the findings did not establish the falsity of the representation) involved an error of law which amounted to a jurisdictional error.
  1. Although the Tribunal did not expressly spell out why the representation which it found was made by Ms Moss was a misrepresentation, it is clear from the reasons of the Tribunal which characterised the representation made by Ms Moss as a misrepresentation (AB p469) that the Tribunal did find that the representation was false. The Tribunal referred to the written documents submitted by the applicant which conveyed an intention on the part of the applicant not to give the second respondent exclusivity in respect of his permitted use under the lease and highlighted that Ms Moss’ promise was a concession or promise not to enforce those provisions (AB pp468-469). Ms Moss’ promise that the applicant would not lease premises to a second surfwear shop (and thus not enforce its rights under the no exclusivity clause of the lease) was therefore inconsistent with the existing intention of the applicant as expressed in the written documents. No error of law has been shown in respect of the misrepresentation contention.

Failure to give adequate reasons contention

  1. In respect of the claim based on misrepresentation and the finding based on promissory estoppel, it was necessary for the Tribunal to find that the second respondent relied on the promise made by Ms Moss and, in respect of the promissory estoppel case, it was necessary for the Tribunal to find that the second respondent’s reliance was reasonable. The applicant argued that there was little in the Tribunal’s reasons to explain why it found for the second respondent on these issues. It is hypothetical and unnecessary to deal with this contention. The issue of reliance is affected by the error of law made in relation to the production of the relevant parts of Mr Golinelli’s file and his evidence of relevant instructions from the second respondent and his advice on the effect of the clause in the lease providing for no exclusivity of use in favour of the second respondent. To the extent that this contention relates to the finding made on the basis of promissory estoppel, it is subsumed in the conclusion that I have reached in relation to the promissory estoppel contention.

Promissory estoppel contention

  1. After the conclusion of the evidence, the Chairperson of the Tribunal listed the legal issues that needed to be canvassed by the parties in their written submissions. They were the representation, if any, made by Ms Moss, the matter of estoppel and the matter of unconscionable dealing (AB pp369-370). The applicant complained on the hearing of this application that no specific reference had been made by the Chairperson to promissory or equitable estoppel and that the manner in which the Tribunal raised “the matter of estoppel” at the end of the second day’s hearing was unfair to the applicant. It was not apparent from the relatively short discussion of the topic of estoppel at that stage of the hearing as to what the Tribunal considered was the relevance of estoppel. It was submitted on this application that the Tribunal, acting fairly, should have identified with precision the assumption of fact that it was considering as the basis for promissory or equitable estoppel. The applicant relied on authority such as Telstra Corporation Ltd v Kendall (1994) 55 FCR 221, 230. 
  1. Technically the issue of promissory estoppel was not raised by the second respondent’s notice of dispute. Although the applicant relies on that deficiency, the significant failure on the Tribunal’s part was making a finding against the applicant on the basis of promissory estoppel without having given the parties the opportunity to make submissions on the issue. The request for submissions on “the matter of estoppel” did not disclose in sufficient detail the topic on which the Tribunal wished to receive submissions. The requirement for the amendment of the notice of dispute to raise promissory estoppel is a matter that can be easily remedied pursuant to s 73(1) of the Act. It is argued on behalf of the second respondent that the Tribunal’s findings in relation to estoppel do not affect any rights or obligations of the applicant. That is a dangerous submission when the Tribunal had yet to determine compensation and had not made it clear how it was proposing to use the findings it made on promissory estoppel. The vice is that the Tribunal did make findings on a matter that was not in issue and were procedural fairness required that it alert the applicant of its proposed course to consider the application of promissory estoppel. The findings made by the Tribunal based on promissory estoppel cannot stand when the Tribunal failed to give the applicant the opportunity to make submissions on the issue based on promissory estoppel that was of concern to the Tribunal.

Orders

  1. One of the orders sought by the applicant in its application, if the application were successful, was that the matter be remitted to the Tribunal for rehearing by a differently constituted Tribunal. The basis for seeking such an order is that the findings of fact based on findings of credibility made by the Tribunal in its reasons given on 5 July 2006 make it appropriate that any rehearing take place before a differently constituted Tribunal. Although there is no suggestion of any actual or apparent bias on the part of the members who constituted the Tribunal for the hearing of this dispute that resulted in the decision on 5 July 2006, the interests of justice may require that the matter be heard by a differently constituted Tribunal: Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, 558 [130].  The power conferred by s 47(3) of the JRA is wide enough to permit the making of such an order and, in the circumstances where the evidence may be different in the subsequent hearing, it is appropriate to do so.  Counsel for the second respondent did not oppose such a course, if there were found to be power to make the order.
  1. After I had reserved my decision in this matter, the second respondent made written submissions on the application of the Appeal Costs Fund Act 1973 (“ACFA”) if the applicant were successful in obtaining the relief sought on its application for review under the JRA.
  1. The application for review of the Tribunal’s decision is a proceeding to which s 15 of the ACFA applies, because of the wide definitions of “appeal” and “court” in s 4 of the ACFA.  I accept the submissions made on behalf of the second respondent that as the applicant’s application for review of the decision of the Tribunal has succeeded on a question of law, there is jurisdiction to grant to the second respondent an indemnity certificate in respect of the application for review.  This is an appropriate case to grant an indemnity certificate.  Although the second respondent made the claim of legal professional privilege in relation to Mr Golinelli’s advice (other than the letter of 7 December 2005), he was encouraged to do so by the Tribunal and the Tribunal developed the arguments and made consequential directions in favour of the second respondent.  In addition the manner in which the Tribunal raised the matter of estoppel was not in response to any position adopted by the second respondent. 
  1. In the draft orders tendered at the hearing of this application the applicant sought a stay of the proceedings before the Tribunal until a new Tribunal was constituted. As it is appropriate to set aside the decisions of the Tribunal, if an order is made for the rehearing to be conducted before a differently constituted Tribunal, a stay is unnecessary.
  1. The orders which should be made are:
  1. The decisions of the first respondent made or given on 24 April, 28 June and 5 July 2006 in Dispute No 2005/0116 between the second respondent and the applicant (“the dispute”) be set aside.
  1. The dispute be remitted to a Retail Shop Lease Tribunal which is differently constituted to that which gave the decisions in the dispute on 24 April, 28 June and 5 July 2006 for rehearing and determination according to law.
  1. The second respondent pay the applicant’s costs of the proceeding commenced by the application for review to be assessed.
  1. The second respondent be granted an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 in respect of the proceeding.
Close

Editorial Notes

  • Published Case Name:

    Peninsula Development Group (Tannum Sands) Pty Ltd v Retail Shop Leases Tribunal & Anor

  • Shortened Case Name:

    Peninsula Development Group (Tannum Sands) Pty Ltd v Retail Shop Leases Tribunal

  • MNC:

    [2006] QSC 398

  • Court:

    QSC

  • Judge(s):

    Mullins J

  • Date:

    21 Dec 2006

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Ballymaloe Pty Ltd v Retail Shop Leases Tribunal[2004] 1 Qd R 600; [2003] QSC 369
2 citations
Jump To
Cite 1 - [2004] 1 Qd R 600
Cite 2 - [2004] 1 Qd R 600
Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101
2 citations
Jump To
Cite 1 - (2004) 140 FCR 101
Cite 2 - (2004) 140 FCR 101
Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297
2 citations
Jump To
Cite 1 - [2005] NSWCA 297
Cite 2 - [2005] NSWCA 297
Craig v South Australia (1995) 184 CLR 163
2 citations
Jump To
Cite 1 - (1995) 184 CLR 163
Cite 2 - (1995) 184 CLR 163
Mann v Carnell (1999) 201 CLR 1
2 citations
Jump To
Cite 1 - (1999) 201 CLR 1
Cite 2 - (1999) 201 CLR 1
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
2 citations
Jump To
Cite 1 - (2003) 215 CLR 518
Cite 2 - (2003) 215 CLR 518
Power v Kenny [1960] WAR 57
2 citations
Jump To
Cite 1 - [1960] WAR 57
Cite 2 - [1960] WAR 57
Telstra Corporation Ltd v Kendall (1994) 55 FCR 221
2 citations
Jump To
Cite 1 - (1994) 55 FCR 221
Cite 2 - (1994) 55 FCR 221

Cases Citing

Case NameFull CitationFrequency
Shipton v South East Queensland Sport Aircraft Club Incorporated(2022) 10 QR 1; [2022] QSC 52 citations
1

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