Extract from Queensland Government Industrial Gazette

[Extract from Queensland Government Industrial Gazette, dated 6 February, 2009, Vol. 190, No. 5, pages 63-80]

INDUSTRIAL COURT OF QUEENSLAND

Industrial Relations Act 1999 - s. 341(i) - appeal against decision of industrial commission

National Retail Association Limited, Union of Employers AND Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) (C/2008/40)

National Retail Association Limited, Union of Employers AND Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) and Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees (C/2008/43)

National Retail Association Limited, Union of Employers AND Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) and The Australian Worker's Union of Employees, Queensland (C/2008/44)

TRADING HOURS ORDER - NON-EXEMPT SHOPS TRADING BY RETAIL - STATE

PRESIDENT HALL 23 January 2009

DECISION

By an application pursuant to s. 21 of the Trading (Allowable Hours) Act 1990 (the Act) filed on 7 December 2007, the National Retail Association Limited, Union of Employers (hereafter the NRA) sought to amend the Trading Hours Order - Non-Exempt Shops Trading by Retail - State (hereafter the Order). As at 7 December 2007, the Order required that non-exempt shops were to be kept closed on Sundays and public holidays, save where other provision was made by the Order. The application sought enlargement of the areas for which other provision was made so as to include the city of Mackay and the towns of Sarina and Walkerston. If granted the enlargement would have enabled non-exempt shops in Mackay, Sarina and Walkerston to open between 8.00 a.m. and 6.00 p.m. on Sunday and between 8.30 a.m. and 5.30 p.m. on public holidays (not including Christmas Day, Good Friday, Anzac Day and Labour Day). By a decision dated 18 September 2008 (now reported at 189 QGIG 569), the Queensland Industrial Relations Commission (hereafter the Commission) dismissed the Application. On 9 October 2008, the NRA filed an appeal to this Court, viz., Matter No. C/2008/40.

By a further application pursuant to s. 21 of the Act filed on 3 July 2008, the NRA sought to further amend the Order to extend to trading hours of non-exempt supermarkets located along the coastline of the Gold Coast. By a decision given on transcript on 5 November 2008, the Commission adjourned the application (which had been listed for hearing) until release of the Court's decision in Matter No. C/2008/40. On the same day the Commission also adjourned until the release of the Court's decision in another application by the NRA under s. 21 of the Act (also filed 3 July 2008), seeking enlargement of the provisions of the Order about the trading hours of non-exempt shops to permit trading on Sundays and public holidays in the areas of Bargara and Mission Beach. On 7 November 2008, the NRA appealed to this Court against each of the adjournment Orders.* [*In the case of the application about trading hours at Bargara and Mission Beach, the transcript does not disclose that an oral Order was made in open Commission and no written order appears on the file. However, the application was deleted from the Commission's list. The "parties" submit that the application has been adjourned. It seems to me that the prudent cause is to treat the absence of an order as an irregularity to be corrected under s. 248(1)(3) of the Industrial Relations Act 1999.]

The Australian Worker's Union of Employees, Queensland was named as a "party" in the Appeals numbered C/2008/40 and C/2008/44. The Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees was named as a "party" to the Appeal numbered C/2008/43. Each Industrial Organisation sought leave to withdraw from proceedings. Leave was granted in each matter. The Appeals were not joined. Appeal Matter No's. C/2008/43 and C/2008/44 were heard together immediately after Appeal Matter No. C/2008/40. Although the Appeals were not joined there was much cross-reference. Such cross-reference was inevitable. It was the filing of the Appeal which became No. C/2008/40 which triggered the adjournments. Comments made by the Commission on the adjournment proceedings about what had happened at first instance on the application relating to Mackay, Sarina and Walkerston, were arguably material to evaluation of the conduct of the proceedings at first instance on the Appeal about dismissal of the application relating to Mackay, Sarina and Walkerston. In those circumstances I have elected to publish reasons for the Orders made by the Court on each Appeal as one epistle. I have not found it necessary to determine whether Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) (hereafter the QRTSA), which organisation was granted leave to appear in all applications at first instance and which organisation appeared to oppose grant of the relief sought on all Appeals is truly a "party" to the Appeals, the QRTSA is plainly a contradictor on each Appeal. 2

Formal parts omitted, the Application to Appeal to this Court against the dismissal of the application about opening hours for non-exempt shops in Mackay, Sarina and Walkerston, (Appeal Matter No. C/2008/40) was in the following terms: "1. The grounds of the appeal are:

(a) The Full Bench made an error of law in deciding the matter by reason that it: (i) Applied the incorrect test to the application; (ii) Failed to find that business tourism was part of the tourist industry; (iii) Wrongfully treated the evidence of an individual councillor as evidence of the view of local government; (iv) Failed to consider relevant evidence in determining the 'public interest'; (v) Wrongfully heard and took into account statements and materials that were not tendered in the proceedings, and which were:- a. not evidence in the proceedings; b. could not be examined or challenged by the Appellant in the proceedings; c. were prejudicial to the interests of the Appellant; and (vi) Decided the matter against the weight of evidence in support of the application.

(b) The errors of law outlined above constitute jurisdictional error.

2. The decision sought is:

(a) That the decision of the Full Bench of 18 September 2008 be set aside. (b) That the order sought in the application be granted. (c) Such other orders as the Court deems appropriate.".

The ground at (1)(a)(i) is almost delphic. That remark, I hasten to add, is not made by way of criticism. Appeals must be brought within 21 days of release of the decision which is the subject of the appeal. Where (as here) Counsel did not appear at first instance, the task of mastering voluminous materials is truly demanding. The remark is made because, in the adjournment proceedings, the Commission acted on an incorrect assumption about ground (1)(a)(i) without seeking elaboration from the NRA. In any event, by its written Outline of Submissions lodged on 25 November 2008, (almost three weeks after completion of the adjournment proceedings), the NRA made plain that the point to be argued was that the Commission had required the NRA to discharge an onus which the Act does not impose. That very point was argued in this Court in National Retail Association v Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) and Anor (2005) 180 QGIG 1211. Materially, the Court observed (at pp. 1211 to 1212):

"It is necessary to say something of the legislation pursuant to which the application to the Commission was made.

The Workplace Relations Act 1997 substantially remoulded the Act. The legislative scheme by which s. 21 of the Act required the occupier of a non-exempt shop to ensure that it was not open on a Sunday, but gave the Queensland Industrial Relations Commission authority to allow non-exempt shops (or some of them) to open on Sunday, notwithstanding the legislative prohibition, was set aside. That scheme was replaced by a scheme under which the Queensland Industrial Relations Commission was to decide trading hours for non-exempt shops. At that point notions of onus of proof became unhelpful as applied to the determination of allowable trading hours for non- exempt shops. Save to the extent that a person commencing an application seeking departure from the status quo has carriage of the proceedings and carries the risk of failure, and to that extent may be said to carry the onus of satisfying the Commission that it is appropriate to make the decision sought, there is not any onus at all; compare Property Council of Australia Limited (Queensland Division) v Hardware Association of Queensland, Union of Employers and Others (2000) 163 QGIG 105 at 108.

The reference made to the status quo is important. The removal of the direct statutory prohibition of Sunday trading by non-exempt shops did not create a hiatus. A decision by a Full Bench about trading hours for non-exempt shops is given effect to by an order of the Commission (s. 21(2) of the Act). Section 28 of the Act operates upon the order to require that non-exempt shops are 'closed so as to comply in all respects with the terms of the order.'. By the time of the 1997 amendment (14 February 1997) and subsequently, the opening hours of non-exempt shops were comprehensively regulated by order. A decision to enlarge trading hours for non-exempt shops on Sunday and/or on public holidays requires departure from the status quo. To that extent the applicant carried the 'onus' of satisfying the Commission. And the Full Bench recognised that. Having quoted a passage from the decision of Moynihan J in Property Council of Australia and Another v Queensland Retail Traders and Shopkeepers Association Industrial Organisation of Employers and Others (1999) 161 QGIG 524 at 427, viz.,

'The consequences of the Order and the Act being as I indicated earlier, not surprisingly the Commission approached the application on the basis that the appellants were obliged to justify an exception from the existing situation which was the general prohibition effect by the order.', 3

the Full Bench held that,

'It is for the applicant in such matters to convince the Commission that there is a need, based on the legislative criteria, for a change to trading hours.'. (Para 239)

That language is plainly directed to the 'need' to change the existing Order and the status quo, not to imposing upon an applicant the burden of showing that the new trading hours sought are 'necessary'….".

And at p. 1212 observed:

"It is the submission of the Appellant that the function performed by the Commission in deciding trading hours for non-exempt shops was materially modified by the Trading (Allowable Hours) Amendment Act 2002. The submission is soundly based. To begin with two new criteria were added to the list of 'matters relevant to s. 21 order' at s. 26. But the Full Bench expressly referred to the addition and tested the application against the additional criteria. Additionally, the long title of the Act was changed from 'An Act to regulate the trading hours of shops and for related purposes' to 'An Act to decide the trading hours of shops and for related purposes'. The objects of the Act were also amended to replace the word 'regulate' with the word 'decide' where it appeared in the objects. The purpose of the changes were to make clear, or to use the language of the Explanatory notes 'clarify', that the Act does not seek to promote a restriction of hours …".

The NRA was entitled to have its application about opening hours for non-exempt shops in Mackay, Sarina and Walkerston decided in accordance with the construction of the Act developed by the Court. In fact, the application was dismissed because the NRA failed to climb an evidentiary mountain existence of which the Court had denied. So much is sufficiently exposed by paragraphs which follow the heading "CONCLUSION" in the Commission's reasons for decision [emphasis added]:

"[232] A brief summary of the history of the trading hours legislation was outlined in paragraphs [188] to [197] of National Retail Association Limited, Union of Employers (Regional Queensland (Southern & Eastern Area)) (2005) 180 QGIG 484. We adopt that history and in particular the following comments of the Full Bench decision in Property Council of Australia Limited (Queensland Division) and Others v Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) and Others (South-East Corridor Case) (1998) 159 QGIG 310:

'Each case must be determined on its own merits according to its circumstances. However, the Commission has, in deciding applications for an extension of trading hours in the past, reiterated that, to justify an extension of trading hours for non-exempt shops, it must be shown there are "special circumstances of a sufficiently significant nature", that the situation is "unique" or "is clearly distinguishable" from the normal situation.'.

and further, the views expressed by President Moynihan on appeal in Property Council of Australia and Another v Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) and Others (1999) 161 QGIG 524 that:

'The consequences of the Order and the Act being as I indicated earlier, not surprisingly the Commission approached the application on the basis that the appellants were obliged to justify an exception from the existing situation which was the general prohibition effected by the Order.

It is again not surprising, and indeed desirable, that the Commission seek to achieve a consistent approach to the requirement that an exception to the general prohibition be made out if non-exempt shops be allowed to trade on Sunday in a specified locality. There is much to be said for the approach. People, for example, know where they stand and can regulate their affairs accordingly. The language in which the Commission expressed this approach varied from case to case; "special circumstances of a sufficiently significant nature", that the situation is "unique" or "is clearly distinguishable" from the general situation effected by the Order.'.

[233] Whilst we acknowledge that the legislation was amended in 2002 to enable the Commission to decide rather than regulate trading hours, the statements made in earlier cases as set out above, remain applicable.

[234] It is thus for the NRA to 'justify an exception' from the general prohibition on Sunday and public holiday trading. It is for the NRA to establish that the Mackay region is one where 'special circumstances of a sufficiently significant nature' exists, that the Mackay region is 'unique' or that it is 'clearly distinguishable' from the general situation effected by the Order. 4

[235] Tourist Industry: The NRA, and those witnesses supporting the NRA's application, tended to focus upon the fact that Sunday trading was now available in Port Douglas, Cairns, Townsville, Airlie Beach, Yeppoon and Hervey Bay as a basis for extending trading hours in the Mackay region. When each of those particular localities first succeeded in gaining trading on Sundays, the applications were primarily based on tourism, and in particular leisure tourism. A review of the following decisions can verify the emphasis on the tourist or expanding tourist industries:

 Retailers' Association of Queensland Limited, Union of Employers v Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees and Others (1991) 138 QGIG 97 where the Full Bench in granting a trial of Sunday trading in the Gold Coast Area said that the 'needs of the tourist industry, including those of an expanding tourist industry, are factors to which our attention is directed';

 Retailers' Association of Queensland Limited, Union of Employers v The Australian Workers' Union of Employees, Queensland and Others (1991) 138 QGIG 1202 where the Full Bench said that it could 'be seen that this application is predominately based upon the needs of tourists and the tourist industry in the Cairns CBD area' when granting Sunday trading in the Cairns CBD;

 Retailers' Association of Queensland Limited, Union of Employers v Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) and Others (1995) 150 QGIG 69 where the Full Bench, in deciding to grant a two year trial of Sunday trading in the Townsville CBD, referred to the very large number of persons attending the craft markets in the Mall every Sunday, very many of whom were tourists. The trial was completed in 1997 and the Full Bench in (1998) 157 QGIG 24 confirmed Sunday trading in the Townsville CBD area. In Retailers' Association of Queensland Limited, Union of Employers v Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) (2004) 176 QGIG 615 the definition in the Order was changed to the Townsville Tourist Area and included a store in North Ward which is near to The Strand. The emphasis in the extension of the definition was that it was a significant tourist area;

 Retailers' Association of Queensland Limited, Union of Employers v Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees and Others (1994) 147 QGIG 1462 where an expanding tourist population was a primary reason for the granting of Sunday trading on the Sunshine Coast. See also Sands Merchants Association v Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees and Others (1994) 145 QGIG 627;

 Retailers' Association of Queensland Limited, Union of Employers v Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) (2000) 163 QGIG 554 where the Full Bench in granting Sunday trading in the Whitsunday Shire Tourist Area stated that they were 'satisfied that tourists use the Shire as a gateway to the Great Barrier Reef and the Whitsunday Islands, pass through the Shire in travelling north and south on the Bruce Highway and criss-cross the Shire in seeking out eco-tourism destinations … tourism has a centre of gravity in the area of Shute Harbour, Airlie Beach and Cannonvale …';

 Retailers' Association of Queensland Limited, Union of Employers v Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) and Others (2003) 173 QGIG 341 where tourism and the fact that Hervey Bay was the gateway to Fraser Island were the primary factors in the grant of the application; and

 National Retail Association Limited, Union of Employers v Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) and Another (2007) 186 QGIG 705 where the Full Bench accepted that there was 'significant tourist growth' within the Yeppoon area when granting Sunday trading in the Yeppoon Tourist Area. Sunday trading in Yeppoon had been rejected by a Full Bench in 2003 in Retailers' Association of Queensland Limited, Union of Employers v Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) and Others (2003) 173 QGIG 341.

[269] We then had evidence from a number of small businesses who are opposed to the application. They fear that their most profitable trading day - Sunday - will be lost should the application be granted. The Act has, over many years, provided a protection on Sundays for small and medium businesses. It is clear that Sundays are the most profitable trading day of the week for most small convenience stores. To deprive convenience stores of much of their Sunday trade will seriously affect their profit margin. 5

[273] We have considered the whole of the evidence in this matter, the submissions of the NRA, the QRTSA and the AWU and have dealt with all matters required of us by s. 26 of the Act. On balance the NRA has failed to adduce sufficient evidence on most of the criteria required under the Act to warrant an extension of trading hours in the Mackay region. The NRA has not demonstrated any 'special circumstances of a sufficiently significant nature' or that the situation in the Mackay area is 'unique' or is 'clearly distinguishable' from the general prohibition on Sunday and public holiday trading contained in the Act. This is a case where the NRA has not established an affirmative case for the introduction of Sunday trading rather than one where the QRTSA has established a negative case.".

The passages represent an entirely flawed understanding of the Act in its current form. To rely on the authorities prior to the passage of the Trading (Allowable Hours) Amendment Act 2002 is to defy the Legislature and to deny the NRA its right to have the application determined according to law. In no way do I seek to criticise the pre-2002 decisions. At the time at which the decisions were delivered, the decisions were indubitably correct. However, one must start with the Act in its current form not with the earlier decisional law. Interestingly, the two pre-2002 decisions referred to by the Commission at paragraph [232] had been discussed by the Court in National Retail Association Limited, Union of Employers v Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) and Another (2005) 180 QGIG 1211 at 1213. The discussion was in terms quite different to the discussion engaged in the Commission. The relevant passage is:

"The expansion of trading hours in south-east Queensland had this consequence also. In Property Council of Australia (Queensland Division) and Others v Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) and Others (1998) 159 QGIG 310 a Full Bench said:

'Each case must be determined on its own merits according to its circumstances. However, the Commission has, in deciding applications for an extension of trading hours in the past, reiterated that, to justify an extension of trading hours for non-exempt shops, it must be shown there are "special circumstances of a sufficiently significant nature", that the situation is "unique" or "is clearly distinguishable" from the normal situation.'.

On appeal, (1999) 161 QGIG 524 at 527, Moynihan P observed:

'The consequences of the Order and the Act being as I indicated earlier, not surprisingly the Commission approached the application on the basis that the appellants were obliged to justify an exception from the existing situation which was the general prohibition effected by the Order.

It is again not surprising, and indeed desirable, that the Commission seek to achieve a consistent approach to the requirement that an exception to the general prohibition be made out if non-exempt shops be allowed to trade on Sunday in a specified locality. There is much to be said for the approach. People for example, know where they stand and can regulate their affairs accordingly. The language in which the Commission expressed this approach varied from case to case; "special circumstances of a sufficiently significant nature:, that the situation is "unique" or "is clearly distinguishable" from the general situation effected by the Order.'.

The danger with such passages is that with over citation the adjectives will replace the statutory test. [And for that reason I decline to rule on the issue about whether Sunday trading by non-exempt shops is now the norm.] By imposing a trading hours regime for non-exempt shops with which the Commission may not tamper in a populous area of enormous economic and retail trade significance, the Trading (Allowable Hours) Amendment Act 2002 has compelled the Commission to refocus on ss.21 and 26 of the Act. …".

Put aside all notions of onus of proof, the Commission's decision on the application relating to Mackay, Sarina and Walkerston is so reliant upon adjectives that the Commission has almost certainly erred in law in failing to provide adequate reasons, compare Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, and Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462. As the matter was put by Mr Herbert of Counsel for the NRA, it is quite impossible for the NRA to distil from the Commission's reasons how the NRA should improve its case with a view to success on a future application. Assisted by knowledge of its shortcomings, the NRA may well have found that the evidence was there to be led.

The ground of inadequacy of reasons was not raised by the Application to Appeal. The point arose on a (justified) submission that the wrongly imposed onus was as elusive as it was misplaced. I do not rest the decision on the Appeal on the ground of error of law by failure to publish adequate reasons. However, whilst I quite accept the submission of Mr Fisher for the QRTSA that one starts with a presumption that a tribunal of first instance is correct and not from a commitment to finding fault, it seems to me that the Commission's language is so intractable and the Commission's analysis of the pre-2002 cases is so revealing that I must find error of law in the imposition on the NRA of an unwarranted and puzzling onus. 6

The ground of appeal at 1(a)(ii) of the Application to Appeal is also made out.

It is an object of the Act "to facilitate trading in tourist areas", s. 3(c). The object was added by the Trading (Allowable Hours) Amendment Act 1994. Of the addition of the object the Explanatory Note observes:

"A specific object to facilitate trading in tourist areas gives expression to the intent to assist the growth and development of tourism.".

In articulating the matters to which the Commission must have regard in making an order under s. 21 of the Act, s. 26 twice refers to the tourist industry. Section 26(b) refers to the "needs of the tourist industry" in the locality or part thereof to which the application relates and s. 26(c) refers to the "needs of an expanding tourist industry". Like s. 3(c), s. 26(b) and (c) were also added by the Trading (Allowable Hours) Amendment Act 1994. Reference to the Explanatory Note reveals the observation:

"The intent of this change is to place a particular emphasis on the needs of the tourist industry …".

Against that background, the point developed by the Commission at paragraph [241] viz.;

"We accept that Mackay has many attractions to offer tourists. We also accept that Mackay wishes to improve its offer to tourists through Sunday trading. As Mr Spratt said 'Mackay needs something like Sunday trading to boost tourist numbers'. Mr Phillips also referred to the role of Mackay Tourism Limited being to 'recapture leisure visitation'. Assisting regions to boost tourism or recapture leisure visitation is not however a criteria outlined in the legislation which we must consider in any application to extend trading hours.", [emphasis added], cannot be sustained. The passage denies the statutory language its full meaning when the Explanatory Note, to which reference may be made to confirm an interpretation (Acts Interpretation Act 1954, s. 14B), indicates that the statutory language was to be given its full meaning. Further, whilst the Commission was entitled to draw a distinction between "leisure visitors" and "business tourists", the Commission erred in treating the interest of non-exempt stores in developing the market constituted by "business tourists" present in the locality on a Sunday or public holiday as an interest beyond the scope of s. 26(b) and (c).

It is convenient to deal with the ground of appeal at paragraph 1(a)(iii) of the Application to Appeal with the ground at 1(a)(v).

As to the ground of appeal at paragraph 1(a)(iv) of the Application to Appeal, since the application must be reheard on the papers by the Court or de novo by the Commission on remitter, it seems to me that consideration of the weight to be given to the views of the relevant employee organisation and to the surveys tendered by the NRA at first instance should be deferred until that merit stage. In light of the view which I have formed about the grounds at 1(a)(i) and (ii) and in light of the view to be expressed about ground 1(a)(v), there is no utility in examining now whether any error about the weight to be given to the views of employee organisations is a consequential or independent error. For the same reason I leave over the attack, which was not pleaded, upon the Commission's findings about the importance of Sunday trade to the profitability of small business.

The ground of appeal at 1(a)(v) relates to the Commission's participation in a debate about trading hours which took place at the Mackay Council Chambers over a period of approximately ninety minutes.

It is common enough for the Commission to undertake inspections in the discharge of its functions under the Act. Primarily inspections are undertaken by way of a view i.e. to assist the Commission to understand sworn evidence. However, with the consent (express or implied) of the applicant and of any contradictors, the Commission has on occasion inspected a site, e.g. a new regional shopping centre, as if it was an exhibit. That extension of the use of an inspection mimics the position under the general law, compare Grosser v South Australian Police (1994) 63 SASR 243 at 248 per Prior J. Inevitably there will be conversation on inspections. Much of it will be innocuous. A shop manager will be introduced as a person who is to give evidence. The manager may point out features of the store or shopping centre about which evidence is to be given. However, there is an ever-present risk of something untoward being said. The trading hours for non-exempt stores matter to the corporations which conduct the stores and to the investors in the buildings housing the stores. Nearby exempt and independent retailers may fear the extension of trading hours for a non-exempt store as a livelihood threatening event. There is a constant need for vigilance. Here everything which could go wrong did go wrong.

The prepared list of inspections which is Exhibit A (reproduced below) to the affidavit of Bianca Louise Seeto-Rae includes a one hour visit to the Council Chambers.

"Mackay Trading Hours

Inspection Schedule 7

Time Activity Comment

10:45am Bus pick up of Commission members and advocates Bus will have adequate storage for from Mackay airport luggage

10:55am Sydney Street Markets and morning tea Tour of shopping centre

11:25am Big Bear Food Mart located at Harbour Rd, Mackay Drive by

Foodworks located 15 36 Goldsmith St, East Mackay

11:35am Mt Pleasant Shopping Centre Tour of shopping centre

12:05pm Greenfield shopping centre and Northpoint shopping Drive by centre

12:15pm Lunch - Clarion Hotel at the Marina

2:00pm Canelands Shopping Centre Tour of shopping centre

2:45pm Afternoon tea at Mackay Council Chambers All council members have been invited although attendees are yet to be confirmed 3:45pm Walkerston Shopping Village Drive by

4:15pm Sarina shopping villages - IGA & Woolworths centres Drive by

5:00pm Inspections conclude and return to CBD Return to hotel of Commission members".

The visit to the Council Chambers was neither by way of a view nor by way of inspecting real evidence. There was no suggestion that the Council Chambers constituted a non-exempt or independent store, nor any suggestion that the Chambers were an attraction drawing tourists to the area on Sundays and public holidays. Ms Seeto-Rae's affidavit, which was admitted by consent, records the arrangements for the visit to the Council Chambers and, to the best of her recollection what occurred there. Formal parts omitted, Ms Seeto-Rae deposes:

"I, Bianca Louise Seeto-Rae of 395 St Paul's Terrace, Fortitude Valley in the State of Queensland, Senior Workplace Relations Advisor make oath as follows-

1. I am employed as a Senior Workplace Relations Advisor in the employment law division of the National Retail Association ('the NRA'). I was engaged to assist Mr Gary Black in the conduct of the case for the NRA in the Mackay Trading Hours matter [TH/2007/7].

2. At the directions hearing for the Mackay Trading Hours matter [TH/2007/7], NRA had requested the Commission to conduct inspections. I settled the itinerary for the Mackay inspections during the week prior to the inspection taking place.

3. In settling the inspection itinerary I consulted with Ken Murphy from the QRTSA. On 13 May 2008, Mr Murphy emailed me to advise me of the locations the QRTSA proposed to include in the itinerary. In this email, he stated as follows:

We have also arranged an afternoon tea at the Mackay City Council Chambers for 2.30 pm and need to have this programmed in the schedule.

4. Mr Murphy advised in a further email on 13 May 2008 that the afternoon tea would go for approximately 1 hour.

5. NRA did not oppose the inclusion of the afternoon tea in the itinerary, on the assumption that it would be in the nature of a civic reception by Council for visiting dignitaries. A copy of the proposed itinerary was then emailed to the Vice President's Associate on 13 May 2008 although this was amended as a result of discussions that took place at the mention hearing on 14 May 2008. 8

6. While the itinerary had originally accommodated the QRTSA's request for one hour to be allocated to the afternoon tea with the Council, this was amended to 45 minutes as we did not consider the schedule would permit this. Exhibit 'A' to this affidavit is a copy of the final itinerary for the Mackay inspections.

7. Mr Col Adamson from Reeforest Adventure Tours was the bus driver and tour guide for the inspection of the Mackay area.

8. At the beginning of the bus tour, I recall Mr Adamson introduced himself. I recall that he also declared that he was a member of Mackay Tourism. He said words to the effect that Mackay Tourism is giving evidence in this matter and that we were all aware of Mackay Tourism's view and that was all he had to say on the matter. He said words to the effect that today he would be our tour guide only.

9. I recall that throughout the tour, Mr Adamson pointed out areas of interest. I don't recall him saying anything that appeared to be directed to supporting our case.

10. I recall that the following people attended the Council afternoon tea: Vice President Linnane, Commissioner Asbury, Commission Thompson, Cr Wendy Cameron, Cr George Christensen, Cr Deidre Comerford, Cr Diane Hatfield, Cr Dave Perkins, Scott Driscoll, Ken Murphy, Stacey Schinnerl, Col Adamson and Vice President Linnane's Associate, Sewar Mitanis.

11. I recall the Council afternoon tea event lasted for approximately 90 minutes instead of the allocated 45 minutes. I recall that this meant that we were behind for the remainder of the inspection and did not return to the hotels until approximately 6:30pm.

12. The meeting was held at the Mackay Regional Council Chambers. Cr George Christensen greeted us downstairs and took us to a room in the Council Chambers located on the next level.

13. I recall that we entered a room with a number of desks at which some people were still seated. On my left, at the far end of the room were some lounge chairs placed around a coffee table. Behind the lounge chairs was a table which is where we sat. Near the table was a kitchenette where tea and coffee was made.

14. I recall that upon entering the meeting room, a number of councillors greeted us. I recall that one of the councillors announced that not all the councillors would be able to make the meeting.

15. I recall that Commission members and others made their own tea/coffee and then sat at the table. There was not a lot of room at the table. Initially Ms Schinnerl and I sat away from the table on a nearby lounge with the Vice President's Associate, Ms Mitanis. Room was made, however, and Ms Schinnerl and I then sat at the table. I recall that I was sitting in the middle of the table between Ms Schinnerl and Mr Adamson. Sitting opposite me was Commissioner Asbury and Vice President Linnane. Commissioner Thompson was sitting to Vice President Linnane's left. I recall Cr Perkins, Cr Hatfield, Cr Comerford and Cr Cameron were located at the end of the table to my right. Cr Christensen, Scott Driscoll and Ken Murphy were located at the end of the table to my left.

16. I cannot recall an official introduction at the meeting. I recall that there was general discussion about the beautification of the Mackay CBD and the introduction of designated walking paths around the CBD and along the water. My recollection is that Cr Christensen may have started speaking about the trading hours matter first. Cr Christensen issued a document to everyone at the table. It was a copy of a media release which stated that the Council had voted to oppose the NRA's application to introduce Sunday trade.

17. I recall that Cr Christensen said to the Commission members that the Council voted 10 to I to oppose the application to introduce Sunday trade to the Mackay region.

18. Cr Perkins advised the group that he was the councillor who opposed the motion. He said words to the effect that he was a member of Mackay Tourism and it was on tourism grounds that he supported the application. I recall Cr Perkins talked about the new infrastructure in the area.

19. I recall Cr Christensen talking to the Commission members in some detail about the impact on families if Sunday trade was introduced as well as the impact on the small business community.

20. I recall that Vice President Linnane spoke in response to the matters being raised on occasions. I don't recall Commissioner Asbury or Commissioner Thompson saying anything or if they did it was minimal.

21. I recall that one of the councillors asked the Commission members whether the Council's opposition was a factor the Commission takes into account in deciding the application. 9

22. I recall Vice President Linnane replying to that question in words to the effect that the Commission was bound to take into account a number of factors, which are set out in legislation. I recall that Vice President Linnane then listed some of the factors that the Commission is obliged to take into account.

23. I recall Cr Christensen saying words to the effect that he thought Sunday trade would take away from people's family time. I recall he spoke about Sunday markets that were held in the Mackay CBD. He said words to the effect that Sunday trade would destroy these markets because no-one would frequent them anymore because they would go shopping at the centres instead. I recall he also talked about the effect the destruction of the markets would have on the Rotary Club that relied on the markets as a fund raiser.

24. I recall someone asking me if the application just related to Mackay. I said no, the application also incorporated Sarina and Walkerston. I recall that Vice President Linnane then asked the councillors a question (to the effect) as to whether their position would change if the application was limited to Mackay. I recall that Cr Christensen and some other councillors said "no".

25. I recall that Cr Hatfield was the most animated councillor at the Council afternoon tea. I recall that she was very passionate and expressive about the issue. She said words to the effect that Mackay is just not ready for Sunday trade and it was not the right time for Mackay. She also said words to the effect that she was not saying that Mackay would not be ready in the future but now was not the time. I recall Cr Comerford also making similar comments.

26. I recall Vice President Linnane said words to the effect to Cr Hatfield that during the inspection we had driven past the Hatfield's IGA. Cr Hatfield confirmed she owned the Hatfield's IGA. I can't recall how it came up in the conversation but Cr Hatfield confirmed that her IGA does not currently trade on Sundays. I recall that Ms Schinnerl said words to the effect that this was her choice. I recall Cr Hatfield in reply saying words to the effect that she was unable to trade because she was non-exempt. I recall Ms Schinnerl asked Cr Hatfield in words to the effect if she had 20 employees on the shop front at any one time and I recall Cr Hatfield said "yes". I can't recall who but someone asked Cr Hatfield if she would trade on Sundays if she was permitted. Cr Hatfield said words to the effect that she really didn't know. She said words to the effect that she would find it hard to find the staff. She said words to the effect that her existing employees would be unlikely to want to work on a Sunday as it is a day to be spent with family. Cr Hatfield said words to the effect that they are nearly at full employment in Mackay and it would be very difficult to find extra employees to work on a Sunday.

27. I recall that there was then a discussion involving Cr Cameron, Cr Comerford and Cr Hatfield about the lengths the Mackay McDonalds' franchisor had gone to staff his stores. They said words to the effect that he had brought out workers from overseas because he couldn't find staff locally. I cannot recall whether it was Cr Comerford or Cr Hatfield who said that she had heard that they were working under terrible conditions. They said words to the effect that all these employees did was work so they could send money home to their families. I recall that Cr Comerford said words to the effect that this was unfair. Cr Comerford then said words to the effect that she was all for helping people from other countries out. She said words to the effect that she had an adopted daughter from another country. All of these statements were directed at the members of the Commission present.

28. I can't recall whether it was Cr Comerford or Cr Cameron who then said words to the effect that if Sunday trade was introduced the big retailers would be relying on school kids to do the extra hours. A question was asked about how the school kids are supposed to get their school work done if they have to work. I recall that Cr Cameron said words to the effect that she knows of cases already where big businesses exploit the school kids in that they are working long hours each week. Because of the serious nature of the allegations made against possible members or clients of the NRA, I felt compelled to say something in their defence, as I believed that the statements being made were unfair. I replied in words to the effect that there are child employment laws that protect school aged children from working excessive hours. Ms Schinnerl also said words to the effect that there are proper channels to protect against this and if she was aware of such cases, she should report these to the appropriate authorities.

29. I don't recall Mr Adamson or Mr Murphy saying anything at the meeting. I recall Mr Driscoll my have made a few comments but his contribution was minimal. Other than the comments mentioned earlier in this affidavit above, Ms Schinnerl and I made no other contributions. I recall thinking it was very hard to get a word in even if I had wanted to say something. I recall that Cr Christensen and Cr Hatfield dominated the conversation. I recall that Cr Perkins made contributions throughout the discussion but he was not as vocal.

30. I do not recall any of the Commission members at any stage during the afternoon tea, informing anyone that it was inappropriate for comments to be made about the merits of the application before the Commission. I do not recall the Commission attempting to restrict or curtail the nature or the extent of the discussion. 10

31. I recall attending a similar morning tea and lunch with members of the Commission, the QRTSA and councillors of the Beaudesert Shire Council during the inspection for the Beaudesert trading hours case. I recall that the afternoon tea with the Mackay Regional Council was very different to my experience in the Beaudesert trading hours case. The morning tea for the Beaudesert matter was held at the Beaudesert Community Arts Centre, which was situated next to the Council chambers. Morning tea was served in a small meeting room. There was a table and chairs in the room but I recall everyone stood during the morning tea. I recall that the morning tea itself did not go for very long because we had time to look at some of the art work by local artists that hung in the centre before our tour bus arrived. The lunch at Beaudesert was held at the Railway Hotel. I recall one councillor and the Mayor of the time, Joy Drescher were in attendance. At no stage, do I recall the merits of the case being discussed during either meetings with Council in the Beaudesert matter. I had assumed that the Mackay meeting would have been of the same character.

32. I recall walking out of the afternoon tea with the Mackay Regional Council feeling quite angry. I felt the topic of discussion at the meeting was inappropriate as the Councillors were allowed to put all of their concerns, statements and allegations (many of which were not true) to the Commission in a way that could not be challenged or tested in the same way that the NRA witnesses were to be challenged in the Commission hearing. None of the evidence given at that meeting to the Commission was sworn or recorded, and Mr Black was not even present for the NRA to hear what was being said. I recall discussing this with Ms Schinnerl as we left the meeting and we walked back to the bus. I recall afterwards thinking that I couldn't believe the Commission allowed the case to be discussed like that at the afternoon tea.".

The "Mr Ken Murphy", from the QRTSA referred to in Ms Seeto-Rae's affidavit, also swore an affidavit. It was admitted by consent. Subject to differing recollections on matters of detail, understandable enough when no record was kept and the affidavits were sworn on the basis of recollection (in one case about five months after the meeting and in the other case, about six months after the meeting), Mr Murphy's affidavit substantially corroborates that of Ms Seeto- Rae. Formal parts omitted, I reproduce Mr Murphy's affidavit below:

"I, Ken Murphy of Suite 3, 321 Kelvin Grove Road, Kelvin Grove QLD 4059, Head of Corporate Development with Queensland Retail Traders and Shopkeepers Association, solemnly and sincerely affirm and declare as follows -

1. I am employed as the Head of Corporate Development with Queensland Retail Traders and Shopkeepers Association. 2. I have had an opportunity to consider the contents of the Affidavit of Bianca Seeto-Rae sworn 24 October 2008('the affidavit').

Paragraphs 3, 4 and 5 of the affidavit

3. In regards to paragraphs 3, 4 and 5 of the affidavit I say that I did advise NRA officer Bianca Seeto-Rae that we wished to programme an afternoon tea with the Mackay Regional Council into the Inspection Tour associated with the Mackay Trading Hours Matter (TH/2007/7). It is normal practice for such advice relating to the arrangements for an Inspections Tour to be presented in this manner. 4. Bianca Seeto-Rae did not at any time raise an objection to or make any enquiry as to the nature of the afternoon tea, nor advise me of any assumption that was being relied upon by the NRA in relation to this event or its format. 5. The format of the afternoon tea discussion was informal, with all Commissioners introduced to those Council Members present. Not all Mackay Regional Council councillors were present, due to other commitments.

Paragraph 9 of the affidavit

6. I disagree with paragraph 9 of the affidavit. Mr Adamson whom drove the bus during the inspection tour, spoke a number of times about the needs of Sunday Trading. I later learned that Mr Adamson also sits on the Mackay Tourism board which took a position to support the Application for Sunday Trading.

7. In regards to paragraph 16 of the affidavit, it is my recollection that during the afternoon tea initial discussion centred around topics including the Mackay community, tourism, accommodation, employment and growth strategy. Later discussion in relation to the matter of Trading Hours for which the Commissioners were present in Mackay and had been well publicised in the media, took place in a free flowing manner.

8. I disagree with Paragraph 17 of the affidavit. Cr. Christensen advised the Commission members that the Council had voted 9 to 1 against the application to introduce Sunday Trade to the Mackay region, not 10 to 1 as stated 11 within the affidavit. At this time Cr. Christensen advised that the Sunday Trading issue received attention in the recent Council elections and no Mayoral candidate had indicated support for Sunday Trading. 12

9. I [sic] regards to paragraph 18 of the affidavit, it is my recollection that Cr. Perkins introduced himself as the Councillor who voted against the resolution of the Mackay Regional Council and advised he was a member of Mackay Tourism. I recall that at this time Cr. Perkins was very vocal and stated his viewpoints freely. It is also my recollection that all Councillors present at the afternoon tea expressed their opinion about the Sunday Trading considerations in turn, coupled with broader community issues they held as elected Councillors.

10. In regards to paragraph 20 of the affidavit, I recall that Vice President Linnane was the spokesperson for the Commissioners present and outlined the role of the Commission and the hearing generally. At this time Vice President Linnane also responded to matters and questions raised by Councillors of the Mackay Regional Council.

11. In response to paragraph 21 of the affidavit, it is my recollection that vice President Linnane did advise of the criteria provided under Act that the Commission needed to consider for a Trading Hours matter, in response to an enquiry from one of the Councillors present.

12. In response to paragraph 22 of the affidavit, it is my recollection that Vice President Linnane enquired of Councillors present as to whether their advised viewpoint and council resolution might change if the Application was confined to the Mackay CBD rather than the Mackay Region as embraced by the Application.

13. In response to paragraph 26 of the affidavit, it is my recollection that Cr. Hatfield did advise that she owned Hatfield's IGA and that this was a non-exempt shop due to the number of employees and size of the business. At this time Cr. Hatfield stated that she was unlikely to trade on a Sunday if the Application was successful and that she was a strong opponent of Sunday trading at this time based on her broader held views as a Councillor. I also recall that Cr. Hatfield outlined some of difficulties associated with employment that were experienced in the Mackay Region.

14. I disagree with 29 of the affidavit, in relation to difficulty in being able contribute to discussion. It is my recollection that there was plenty of opportunity for all parties, including the NRA representative present, Bianca Seeto-Rae, to contribute to the discussion and or contend that any discussion was out of order. It is my recollection that at no point did Bianca Seeto-Rae raise any concern or discussion point in this regard.

15. In response to paragraph 30 of the affidavit, it is my recollection that the nature of discussion which took place during the afternoon tea was in no way different to the nature and subject matter of comments made by other parties during the inspection tour, in particular some of the Shopping Centre managers.

16. In response to paragraph 32 of the affidavit, in relation to comments concerning the non attendance of Mr Black, it is my understanding that Mr Black chose not to attend the Inspection tours and he would have known of the afternoon tea programmed with the Mackay Regional Council. It is my understanding that Mr Black was in Mackay briefing some of the witnesses rather than attending the Council visit.

General

17. It is my understanding that Ms Bianca Seeto-Rae's views as contained within her affidavit were not expressed in a formal sense until sometime after the decision of the Application was determined.".

On any view of the affidavits, there was a denial of due process. The NRA had no notice of the true nature and purpose of the meeting. In consequence, the NRA's advocate was not in attendance. With respect to Mr Fisher for the QRTSA, it is no answer to assert (as was the fact) that Ms Seeto-Rae who was an employee of the NRA was present. Ms Seeto- Rae had no instructions and no authority to speak without instructions. Where evidence was taken in a courtroom, the 13

Commission ensured a pre-hearing exchange of witness statements. Here the NRA had no notice of what was to be said. The NRA had no opportunity to prepare cross-examination. One may only speculate about whether cross- examination would have been permitted. The NRA had no opportunity to consider the admissibility of what was to be said.

I accept the NRA's submission that for the purposes of s. 26(h), a local government is to express its view by resolution, see Local Government Act s. 34. However, I do not accept that a mayor or a councillor may not give evidence relevant to matters at s. 26. A mayor may give evidence about the likely impact of extended hours on traffic congestion, s. 26(f). A member of a civic cabinet may give evidence of approved residential developments and anticipated population growth, s. 26(d). Given the Commission's functions under s. 21, which are not directed at determining rights arising out of past transactions but are directed at quasi-legislative setting of rights in futuro, such evidence may be extremely helpful (though unlikely to be admissible in the general court). However, the debate in the Council Chamber was not about matters upon which s. 26 focuses attention. There was a normative debate about trading hours per se. It was a debate which the Legislature might well have had in determining the content of the Act. It was not a debate in which the Commission might appropriately engage. It was not a debate in which the NRA might engage because the NRA had had no opportunity to organise speakers in reply.

The patent denial of natural justice is not excused by s. 24 of the Act. Section 24 provides:

"When dealing with an application under section 21 or 22, the industrial commission must act as quickly, and with as little formality and technicality, as is consistent with a fair and proper hearing of the issues.". [Emphasis added]

Whilst the words emphasised make plain that a fair and proper hearing is required, even in their absence an obligation to proceed expeditiously or without formality would not be held to authorise departure from the rules of natural justice, compare Q-Comp v Gordon Robinson (2007) 197 QGIG 695. The general principle has long been recognised as being well expressed by the Court of Appeal in Jones v National Coal Board (1957) 2QB 55 at 67:

"There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. … No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.".

The words "nor can we affirm it" merit repetition. Procedural fairness is upheld for its own sake, Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492 at [57] per Redlich JA. The concern is with the fairness of the procedure adopted rather than the fairness of the outcome: with the decision making process not the decision; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [105] per McHugh and Gummow JJ. Notwithstanding that in some cases unfortunate litigants are left to bear the costs of a failure in a tribunal system, denial of procedural fairness will lead to a new trial save in very limited circumstances, compare the comments of the editor, (Mr Justice P.W. Young) in December 2008 issue of the Australia Law Journal at 820 to 321.

One of the limited circumstances in which a denial of procedural fairness will be put aside is in the case in where there is an incontrovertible point of law, Stead v State Government Insurance Commission (1986) 141 CLR at 145 per Mason, Wilson, Brennan, Deane and Dawson JJ, or of fact, Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492 at [75] per Redlich JA, which provides a discrete basis for the decision which cannot be affected by the procedural unfairness. The QRTSA has made no attempt to argue that this is such a case.

There is a second set of circumstances in which procedural unfairness may be put aside. It is a situation which is difficult to formulate. On one view, one looks to the past and enquires whether the denial of procedural fairness could have had no bearing on the decision, compare Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 at [41] to [43] per Sackville J. On another view, one looks to the future and enquires whether it would be futile to order a new trial because the result would inevitably be the same, compare VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 471 at [60] per Merkel J and Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492 at [74] and [75] per Redlich JA. Here, howsoever the question be framed, to ask the question is to pursue futility. The errors identified in discussion of the ground of appeal at 1(a)(i) and (ii) would require the Court to set aside the decision of the Commission even if the meeting at the Council Chambers had not occurred.

Mr Fisher for the QRTSA contends that the NRA has lost any right which it might have had to complain about the "forum" in the Council Chambers. The right is said to have been lost by implied waiver.

Waiver (including implied waiver) is now recognised as a barrier to relief on the ground of ostensible bias. For present purposes it is sufficient to refer to the statement of general principle by Toohey J in Vakauta v Kelly (1989) 164 CLR 568 at 587 to 588 [footnotes omitted]:

"There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, should not be capable of waiving the right later to object to the judge continuing to 14

hear and dispose of the case. That is not to say that the litigant in such a position must expressly call upon the judge to withdraw from the case. It may be enough that counsel make clear that objection is taken to what the judge has said, by reason of the way in which the remarks will be viewed. It will then be for the judge to determine what course to adopt, in particular whether to stand down from the case. For counsel to invite the judge to withdraw from the case may be quite premature, particularly if the judge acknowledges the apparent bias in what has been said and thereafter takes steps to dispel that apprehension. But, as Dawson J. noted in Re J.R.L.: Ex parte C.J.L. (54), suspicion of bias based on preconceptions existing independently of the case 'may well be ineradicable'. In that situation there will be no option but to ask the judge to disqualify himself. In any event objection must be taken: see Re McCrory; Ex parte Rivett (55). It was not taken in the present case.

In the result, when a party is in a position to object but takes no steps to do so, that party cannot be heard to complain later that the judge was biased. It was suggested during argument that this situation may be one, not of waiver, but of estoppel. The distinction between waiver and estoppel was drawn by Isaacs J. in Craine v. Colonial Mutual Fire Insurance Co. Ltd (56), in a passage which has been referred to on many occasions. See also Spencer, Bower and Turner, Estoppel by Representation, 3rd ed. (1977), pp. 317-320. Notwithstanding the difficulties that do arise from time to time in distinguishing between waiver and estoppel, the situation here is more akin to the former than to the latter. Waiver involves a decision by the party against whose case bias is shown to raise no objection. It is this conduct which is in question rather than the conduct of the other party. The other party does not alter his position in reliance on that decision, although it is true that, had objection been taken at the time, the trial judge may have disqualified himself and the action could have been heard before another judge without serious loss of time. The situation is one in which the law prevents a party to litigation from taking up two inconsistent positions; he is held to his election. While, of course, the community has an interest in knowing that cases are decided impartially, that interest is not affected adversely by a doctrine which refuses a party to litigation opportunity to resile from a position he has taken. The appellant should be held to have waived any entitlement to challenge what was said by his Honour during the hearing.".

The contention is that the right to complain about procedural unfairness may likewise be lost by a failure to take steps to object when that opportunity first properly arises. I am content to accept that submission and apply the general proposition as potentially applicable in this case. However, given the public interest in the proper exercise of the power at s. 21 of the Act, it may be that on a future occasion one should analyse more carefully whether the public's right to a fair hearing of the issues may be lost by the conduct of an applicant or a contradictor (see generally Lindon v Commonwealth (No. 2) (1996) 70 ALJR 541 at 548 per Kirby J) and Carruthers v. Connoly [1998] 1 Qd.R 339 at 376 per Thomas J. There may also be an issue about whether a statutory right to appeal as distinct from a right to a discretionary remedy, may be lost by waiver.

Mr Fisher's real difficulty lies in attempting to distil waiver from the facts. The starting point is that the NRA was not legally represented. Certainly Mr Black who appeared for the NRA is an experienced industrial advocate but he is not a lawyer. Even lawyers have problems in taking timely objections on the ground of bias. In Aronson Dyer and Groves, Judicial Review of Administrative Action (3rd ed), having referred to remarks by Callinan J in Johnson v Johnson (2000) 201 CLR 488 at 517 to 519, about the difficulty counsel might have in responding to apparently biased statements made by judges in the course of proceedings, the learned authors go on (at 611 to 612) to observe:

"His Honour is right that there may be cases in which the conduct of a judge or any other official presiding over a hearing, poses the unenviable choice of taking issue and perhaps inflaming the matter, or remaining calm in the face of virtual provocation with the attendant risk that a subsequent complaint may fail by reason of waiver. Although Callinan J was mindful of the difficulties facing counsel, these problems are not limited to lawyers. An unrepresented person would face similar problems in any attempt to voice an objection in a timely manner with, we suggest, the added difficulties of the absence of professional training, experience and the advice of colleagues from which to draw.".

The second point is that Mr Black did raise the matter immediately before the commencement of evidence taking on 20 May 2008 (the day after the forum). The transcript records (at p5 to 6) the following exchange:

"I conclude my opening by noting during the inspections yesterday, as I understand it, comments, observations, statements, perhaps even propaganda has flowed from the mouths of some who have decided not to reduce their views to writing; who have decided not to give evidence under oath; and have decided not to have their views tested under cross-examination. We proceed on the basis that such observations, comments or propaganda do not form part of these proceedings and that only the views of those who are willing to appear before the Tribunal will be taken into account.

May it please the Court.

THE VICE PRESIDENT: Does include the bus driver?

MR BLACK: It includes the bus driver, Vice President but most --- 15

THE VICE PRESIDENT: Who was very vocal in his views, yes.

MR BLACK: And I understand others were as well.

THE VICE PRESIDENT: Yes.

MR BLACK: And will be discussing that further in - in the proceedings. May it please the Commission, I'd now seek leave to call Ms Joan Barrett to give her evidence.".

Had Mr Black been a lawyer he might have realised that his client was not required to be content with a hope or implied understanding that what had been said in the Council Chambers on 19 May 2008 would be put aside. The correct proposition is that developed by Brennan J in Kioa v West (1985) 159 CLR 551 at 629 [emphasis added]:

"Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.".

In my view, the right to complain about the denial of natural justice has not been waived.

The primary remedy for denial of procedural fairness is a new trial. The NRA seeks a rehearing on the record. There is power to adopt that course, see Industrial Relations Act 1999, ss. 341(3)(b) and (c) and 348. I understand the costs which will be borne by both the NRA and the QRTSA in the event of a retrial. I understand also that the NRA's application was filed over a year ago, that some of the NRA's members in Mackay, Sarina and Walkerston will hold the opinion that their stores should have been trading on Sunday for months, that a retrial will involve delay and that (if successful) the NRA may face an argument about date of operation based on advance ordering by the members of the QRTSA. However, there are advantages in seeing and hearing a trial develop. For all one knows there may be issues of credibility which the Commission rightly put to one side because on the onus, wrongly being imposed on the NRA, resolution of the issues of credibility (potentially involving embarrassment to a witness) became unnecessary. Further, even on a rehearing on the record inspections and submissions would be necessary. But more importantly litigation under s. 21 of the Act is not litigation about private right and is not litigation between parties. The public has an interest both in the process and the outcome. Here the process was flawed and incorrect criteria were applied. The public were entitled to better. Additionally, in current economic circumstances, the evidence and the evaluation of the evidence may be quite different at a new trial. I propose to order a new trial. I shall deal with the matter of composition of the Commission after dealing with the Appeal about the adjournment of the Application about trading hours for non- exempt supermarkets located along the coast line of the Gold Coast (No. C/2008/43) and the Appeal about the adjournment of the Application about trading hours for non-exempt shops in the areas of Bargara and Mission Beach. To those Appeals I now turn.

A decision to adjourn proceedings is a quintessential exercise of discretion on a procedural matter. Although a decision to adjourn by the Commission or by an Industrial Magistrate is appealable, this Court has been reluctant to allow such appeals where there is not an explicit error of law. It would not ordinarily be a matter for comment that, (as here), the matter of an adjournment was raised by the Commission. Busy tribunals are sensible to manage their lists. However, appeal Nos. C/2008/43 and C/2008/44 are singular in that in each Appeal there is an allegation of apprehension of bias.

I hasten to stress that there is not an allegation of actual bias and that I proceed on the assumption that to establish an apprehension of bias the NRA is required to establish no more than that a reasonable person in the NRA's position might reasonably apprehend that an alleged source of bias might (not would) possibly (not probably) have affected the decision of the Commission, see Webb and Hay v The Queen (1994) 181 CLR 41 and Ebner v Official Trustee (2000) 205 CLR 357.

The source of the apprehension of bias is said to lie in the composition of the Commission and in what was said in open Commission by the presiding member on each adjournment.

As in all cases under the Trading (Allowable Hours) Act 1990, the Commission was constituted as a Full Bench in the matters which have become Nos. C/2008/43 and C/2008/44. The Commission was also constituted as a Full Bench to hear the Application relating to Mackay, Sarina and Walkerston with which I have dealt above. That Full Bench was constituted by Vice President Linnane and Commissioners Asbury and Thompson. The Full Bench dealing with the Gold Coast seaboard matter was constituted by Vice President Linnane, Deputy President Bloomfield and Commissioner Thompson. The Full Bench dealing with the matter about the areas of Bargara and Mission Beach was constituted by Vice President Linnane, Deputy President Bloomfield and Commissioner Asbury. No allegation of apprehended bias is made against Deputy President Bloomfield. The allegation of apprehended bias was made against Vice President Linnane and Commissioner Thompson in the Gold Coast seaboard matter, and against Vice President 16

Linnane and Commissioner Asbury in the matter about the area of Bargara and Mission Beach. The apprehension is that the NRA is being punished for bringing the Appeal about Mackay, Sarina and Walkerston* and, in the alternative, that the adjournment proceedings were used as a vehicle to explain and justify the Commission's participation in the meeting at the Mackay Regional Council Chambers. It is, of course, no part of the Commission's role to use proceedings to advance its own interests. [*If this allegation is made out Deputy President Bloomfield's participation in the decisions is arguably tainted, though the Deputy President has not been challenged. See IW v City of Perth (1997) 191 CLR 1 at 50 to 51 per Gummow J.]

The critical passage in the statement made from the Bench in bringing on the adjournment proceedings in each of the Gold Coast seaboard matter and the Bargara/Mission Beach matter was:

"THE VICE PRESIDENT: Thank you. Again, a similar statement to the one in the previous matter. This Full Bench has been aware that the National Retail Association Limited, Union of Employers has appealed the decision of a differently constituted Full Bench in National Retail Association Limited, Union of Employers Mackay Area cited at 2008 189 QGIG 569.

While such an appeal is generally unexceptional we have recently become aware of an affidavit in connection with that appeal deposed to by Bianca Louise Seto Rae of the NRA, filed on the 24th of October 2008.

It is now apparent from the affidavit, when read in conjunction with the notice of appeal, that the NRA seeks to raise issues as to the test to be applied when dealing with the legislative criteria under section 26 of the Trading Allowable Hours Act 1990.

It is further apparent that it is the intention of the NRA to challenge the longstanding approach adopted by members of this Commission in dealing with trading hours inspections and the interactions with persons during those inspections.

In the present application the NRA has sought that inspection of the Bargara and Mission Beach areas be conducted. Such inspections have been traditionally organized by the NRA. Typically inspections have involved familiarisation with the area to which the application relates, actual visits to retail premises, travel on buses provided for the purpose of inspections, morning teas, lunches, afternoon teas and/or dinners on occasions. Inspections have also involved members of the Commission meeting and otherwise coming into contact with various persons who have an interest either in supporting or opposing the extension of trading hours involving owners and managers of retail establishments of all sizes, elected representative of Local Government, representatives of various interest groups, such as tourism boards and chambers of commerce and persons who have conducted surveys to be used in the application on behalf of the parties.

This Full Bench is of the view that it is not appropriate to embark on a course of action which has hitherto been accepted by all parties, in circumstances where there is now a challenge by one party which is shortly to be dealt with by President Hall in the abovementioned appeal

It is also likely that the President will also deal with the weight to be given to the various criteria under section 26 of the Act. In our view it is desirable that we await the views of the President before embarking on a costly exercise to all parties and the relevant stakeholder. This full Bench is thus of the view unless persuaded otherwise, that the appropriate course is to adjourn this application to await the decision of the President in appeal C/2008/40. Mr Moore, I take it your position is still identical to TH3?".

I have previously criticized the ground of appeal at 1(a)(i) as delphic. It is difficult to understand how it was that prior to the delivery of the NRA's outline of argument the Commission was able to determine that Appeal Matter No. C/2008/40 raised issues as to the "test to be applied". Certainly, the affidavit of Ms Seeto-Rae does not assist. However that affidavit assists greatly in determining what occurred at the forum in the Mackay Regional Council Chambers. In fact, what occurred did not conform to the "longstanding approach adopted by members of this Commission in dealing with trading hours inspections and interactions with persons during those inspections". To the extent that the statement from the Bench indicated otherwise it was misleading. Indeed, having regard to Mr Black's failure to secure an unequivocal assurance when he raised the matter on 20 May 2008 and having regard to the circumstance that the Commission's written reasons for decision in the Mackay, Sarina and Walkerston matter record merely,

"[5] In the course of hearing this matter, the Full Bench undertook inspections of the Mackay, Sarina and Walkerston area which was organized by the NRA. The program of inspections was agreed to by the QRTSA and involved some of the smaller retail traders. As part of the inspections the Full Bench attended the Mackay Regional Council Chambers and met with a number of Councillors. Throughout this meeting representatives of the NRA, the QRTSA and the AWU were in attendance.", 17

I consider that the NRA may reasonably (as it does) entertain the possibility that the statement was a deliberate untruth. It is reasonable for the NRA or any reasonable lay observer to entertain also the possibility that the Commission might have used the adjournment to defend or publish disinformation about the forum at the Council Chambers. Indeed, a reasonable observer might treat the remarks as a recognition that the forum was an impermissible error. The NRA's further submission that the organisation was being punished for filing Appeal Matter No. C/2008/40, seems to me to arise out of irritation about the decision in that matter, the delay in listing the Gold Coast seaboard matter (filed 3 July 2008) and the Bargara/Mission Beach matter filed (3 July 2008) and the ultimate loss of hearing days in the Gold Coast seaboard matter and in the Bargara/Mission Beach matter. The apprehension of punishment seems to arise out of past outcomes rather than conduct, and to be a strained rather than reasonably entertained apprehension (though revealing of the NRA's loss of confidence in the Commission constituted as described).

It follows from the above that Appeal Matter No. C/2008/43 must be allowed and that the proceedings the subject of Appeal Matter No. C/2008/44 must be quashed pursuant to s. 248(1)(c) of the Industrial Relations Act 1999. Both matters must be remitted to the Commission to be heard and determined according to law. No member of the Commission which heard the application culminating in Matter No. C/2008/40 may sit as a member of that Full Bench on the re-hearing and no such member may play a role in nominating the members of the Full Bench. There is no reason that Deputy President Bloomfield may not sit on all or any of the three matters remitted to the Commission. Deputy President Bloomfield has no interest in defending the forum at the Council Chambers, and has the benefit of a presumption that as an independent member of the Commission, His Honour is beyond the influence of other members, compare Re Colina; ex parte Torney (1999) 200 CLR 386 at 398 per Gleeson and Gummow JJ.

The Order of the Industrial Court in Appeal Matter Nos. C/2008/40 and C/2008/43 is:

(a) that the Decision of the Queensland Industrial Relations Commission be set aside and that the matter be remitted to the Commission to be heard and determined according to law; and

(b) that the Full Bench rehearing the matter be constituted and selected by members other than Vice President Linnane and Commissioners Asbury and Thompson.

The Order of the Industrial Court in Appeal Matter No. C/2008/44 is:

(a) that the proceedings before the Queensland Industrial Relations Commission be quashed and that the Commission hear afresh Application TH/2008/4; and

(b) that the Full Bench hearing the matter afresh be constituted and selected by members other than Vice President Linnane and Commissioners Asbury and Thompson.

Dated 23 January 2009.

D.R. HALL, President. Appearances: Mr A.K. Herbert, directly instructed for the Appellant in all matters. Mr S. Fisher of Neumann Turnour, Lawyers, for the Respondent Released: 23 January 2009 in all matters.

Government Printer, Queensland The State of Queensland 2009.