AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 3 December 2004

World Best Holdings Limited v Abul Sarker

[2004] NSWSC 1164

Other

Citation: World Best Holdings Limited v Abul Sarker [2004] NSWSC 1164
Court: Supreme Court of New South Wales, Common Law Division (Administrative Law List)
Date: 3 December 2004
Judge(s): Patten AJ

Background

A lessee of a retail shop (Mr Sarker) brought two claims against his former lessor (World Best Holdings) before the Administrative Decisions Tribunal of NSW. The first was a retail tenancy claim and the second was an unconscionable conduct claim, both arising under the Retail Leases Act 1994 (NSW). The claims were heard together.

The Tribunal found in Mr Sarker's favour, declaring that he had validly terminated the lease and ordering World Best to pay approximately $80,637 in compensation for unconscionable conduct and repudiation of the lease, along with costs.

World Best appealed to the Supreme Court on a question of law under section 77(2) of the Retail Leases Act. A separate application for leave to appeal on the merits had already been dismissed by Sully J.

  • Whether the Tribunal was properly constituted when it delivered its decision, given that two advisory members appeared to have participated in the adjudicative function
  • Whether the use of first-person plural language throughout the Tribunal's reasons was sufficient evidence that the advisory members were improperly involved in the decision-making process
  • The proper scope of the appeal rights under section 77 of the Retail Leases Act, including the distinct treatment of retail tenancy claims and unconscionable conduct claims

Decision

Acting Justice Patten found that the Tribunal's decision could not stand because it had not been constituted according to law. The Tribunal was required by statute to be constituted by a single member (Mr Donald), with two other members present in an advisory capacity only. However, the reasons published by the Tribunal were written consistently in the first person plural, and paragraph 5 of those reasons appeared to describe the Tribunal as having been constituted by three persons.

Patten AJ rejected the argument that the use of "we" and similar language was merely a stylistic convention or a "royal plural." In his Honour's view, plain English compelled the inference that all three individuals regarded themselves as constituting the Tribunal and participated in its adjudicative functions. No passage in the reasons suggested otherwise.

The court drew on the principle that statutory tribunals must adhere closely to the requirements of the statute under which they operate. Once the inference was drawn that the two advisory members had participated in the adjudication, the decision could not be sustained and had to be set aside. The matter was remitted to the Tribunal for rehearing before a Tribunal constituted according to law.

Orders Made

  • The Tribunal's decision of 25 June 2004 was set aside
  • The matter was remitted to the Tribunal to be heard and decided again by a Tribunal constituted according to law
  • Mr Sarker was ordered to pay World Best's costs of the appeal
  • Mr Sarker was granted an indemnity certificate under section 6 of the Suitors Fund Act
  • No costs order was made in respect of the Second and Third Defendants (the Tribunal and the Attorney General)
  • The costs of the first Tribunal hearing were reserved to the discretion of the member constituting the Tribunal at the second hearing
  • Liberty to all parties to apply on 7 days' notice

Key Takeaways

  • Statutory tribunals must be constituted strictly in accordance with the enabling legislation; any departure from the required constitution will render the decision liable to be set aside on appeal
  • Where advisory members appear to have participated in the adjudicative function of a tribunal, a presumption of regularity in the conduct of proceedings can be rebutted by the terms of the tribunal's own published reasons
  • The use of first-person plural language throughout a tribunal's reasons was treated as cogent evidence that all persons present, including those appointed only in an advisory capacity, had participated in the decision-making process
  • Under the Retail Leases Act 1994 (NSW), retail tenancy claims and unconscionable conduct claims attract different procedural regimes, including distinct appeal pathways and different provisions for transfer to other jurisdictions
  • An indemnity certificate under the Suitors Fund Act may be granted to an unsuccessful respondent where the appeal succeeds on a question of law, providing some protection against the costs order made against them

Legislation and Cases Referenced

Legislation:
- Retail Leases Act 1994 (NSW), including ss 62B, 70, 71, 71A, 72, 72AA, 73, 75, 76A, 77
- Administrative Decisions Tribunal Act 1997 (NSW)
- Interpretation Act 1987 (NSW)
- Suitors Fund Act 1951
- Supreme Court Act 1970

Cases:
- Tax Agent's Board of Queensland v Seymour (1994) 94 ALR 635
- R v Munroe (2003) 56 NSWLR 652
- Meagher v Stephenson (1993) 30 NSWLR 736
- Drake v The Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
- G J Coles & Co Limited v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503
- Attorney General (Vic) v Warehouse Group (Aust) Pty Ltd [2002] VSCA 76
- Tu v University of NSW (2003) 57 NSWLR 376