SJG Developments Pty Ltd v NT Two Nominees Pty Ltd (in liq)

This matter concerned the proper categorisation, for rating purposes, of two pieces of land upon which two different Bunnings Warehouses were located. The Court of Appeal confirmed the principle of statutory interpretation that the meaning of the words of a statutory definition are not to be construed by reference to the term which is defined, as this would involve circularity. The Court held, however, that this principle did not prevent recourse to the defined term, in the course of construing the relevant instrument as a whole, to determine whether a qualification to a particular expression should be implied.

Morrison and McMurdo JJA and Boddice J

19 May 2020

The applicants each owned land within the area governed by Ipswich City Council (the “Council”) upon which two separate Bunnings Warehouses were built. [2]. Each was a stand-alone premises, having its own car park and sharing none of the land with any other business. [4]–[5]. The predominant use of each property was to carry on a retail business.

The dispute arose from how the properties were categorised by the Council for the purpose of levying rates. [2]. Under its 2015-2016 Budget (the “Budget”), the Council categorised each property, for rating purposes, as within Category 52a, which category was assigned the “Primary Council Land Use Code” (“PCLUC”) of “Drive-in Shopping Centre”. The appellants contended that the properties should have been categorised as within Category 44b, which relevantly had the PCLUC of “Shop – Single” in the context of these properties. [10]–[22]. The term “shop” was not defined in the Budget, but the Budget permitted recourse to the Macquarie Dictionary in respect of undefined terms. It defined a shop as “a building where goods are sold retail”. [16]–[17]. “Drive-in Shopping Centre” was defined in cl 2.2(1) of the Budget as a premises or a cluster of premises that: “(a) is used wholly or predominately for carrying out a retail business; and (b) is contained within one or more buildings or structures on one or more levels; and (c) provides off-street parking for customer vehicles”. [21]. The Council considered that the properties satisfied that definition in cl 2.2(1). [23].

The Land Court held that the properties fell within both categories, and held that the rating category should be changed to Category 44b as this conclusion had the least impact on the ratepayer. [24]–[27]. This was overturned by the Land Appeal Court. [28]–[34]. It was common ground before the Land Appeal Court that only one rating category could apply. [29]. The Land Appeal Court held that Category 52a was the relevant categorisation, as it was more specific. Category 44b was more general and could apply to a number of different PCLUCs. It had to yield to the more specific Category 52a. [35].

Before the Court of Appeal, the applicants submitted that, properly construed, the Budget required a meaning to be given to “Drive-in Shopping Centre” which excluded a use of land which was within the description “Shop – Single”. [36]. Their submission was that “Drive-in Shopping Centre” could only be applied to “premises, or a cluster of premises”, comprising multiple businesses; essentially, a traditional shopping centre. [36]. Conversely, the respondent argued that the definition of “Drive-in Shopping Centre” expressly contemplated a single retail business and that the terms of the specific definition should be applied. [39]–[41].

The leading judgment in the Court of Appeal was given by McMurdo JA (Morrison JA and Boddice J agreeing). After reviewing the authorities ([42]–[50]), McMurdo JA confirmed the Australian principle of statutory interpretation “that the meaning of the words of a statutory definition are not to be construed by reference to the term which is defined, for the reason that this would involve circularity”. [51]. Nonetheless, the applicants’ argument did not, in his Honour’s view, trespass against this. [51].

As McMurdo JA explained, if the definition of “Drive-in Shopping Centre” were construed alone, the requirement in criterion (a) of the definition (set out above) would be satisfied in respect of a single retailer like a Bunnings Warehouse, as it would be if there were several retailers carrying out their businesses on the land. [52]. Thus, both properties here fell within the definition. [52]. However, the Bunnings Warehouses also came within the definition of “Shop – Single”. [53].

Accordingly, the use of the lands in this case fell within the text of each PCLUC and so the question of construction in the case had to be resolved through implying a qualification to the words of one PCLUC or the other. [56]. The Land Appeal Court judgment had the effect of qualifying “Shop – Single” to not include a single shop with off-street parking for customers. The applicants’ argument had the effect of qualifying “Drive-in Shopping Centre” to not include a single shop. Whichever implication was to be made, each involved a process of construction that identified which provision had to give way to the other. [56].

McMurdo JA accepted the applicant’s argument that it was legitimate to consider the terms of the instrument as a whole, including the label of “Drive-in Shopping Centre” which the Council selected, in considering whether the expression “Shop – Single” should be qualified by an implication. As a matter of ordinary language, the distinction between a shopping centre, comprised of multiple businesses, and a single shop was clear. Such a use of the defined term was not impermissible. There was “no circularity in referring to the language of the defined term for that purpose”. [57]. His Honour concluded that “the relevant intent of this instrument [i.e. the Budget]” was “to distinguish between land which is principally used for a single shop, and land which is principally used for purposes involving more than a single shop”. [60]. On a proper construction of the instrument, having regard to the use of the expression “Drive-in Shopping Centre”, each of the relevant pieces of land was within Category 44b and was properly described as a “Shop – Single”. [60].

In the result, the appeal was allowed, with costs, and the orders of the Land Court reinstated. [61].

S Walpole