New VSBC guideline on ‘What are “retail premises”?’

The Victorian Small Business Commissioner has recently re-published its guideline on the meaning of ‘retail premises’. A copy of the Commissioner’s new guideline is available here. The guideline discusses the following topics:

1. Application of the Act
2. Meaning of retail premises
3. Guiding principles to determine ‘retail premises’
4. Ministerial Determinations
5. Lease or licence
6. Application if lease term is less than a year
7. Extended application – dispute resolution under the Act

The discussion about the ‘15 year’ determination is particularly interesting.  There has been a long-standing controversy over whether the word ‘or’ between sub-paragraphs (e) and (f) of the determination should be read as ‘and’. A copy of the 15 year determination is available here. The Commissioner’s guideline neatly summarises arguments in favour of the ‘or’ being treated as ‘and’ at paragraph 7.1.3. However, Croft and Hay in Retail Leases Victoria (looseleaf service) suggest a different view, stating that (at [30,080.15]):

It has been suggested that paras A (d), (e) and (f) are in some way interdependent as a result of some cross-referencing between them. However, as these paragraphs are clearly and expressly cast in the alternative throughout (the word “or” is used consistently) and, in terms of substance, each paragraph introduces a different, separate, circumstance for its application which is not, again in substance, dependent upon the circumstances addressed by the other paragraphs, it seems clear that they operate independently and any cross-referencing is merely a drafting device, for economy of words (and see Pearce and Geddes, Statutory Interpretation in Australia , 6th ed, LexisNexis, Sydney, 2006, at [2.12], in relation to the circumstances where “and” and “or” may be “modified”).

We are not aware of any decisions that consider the operation of this determination. Consequently, while the Commissioner’s guideline provides useful support for the proposition that the ‘or’ at the end of sub-paragraph A(e) of the determination should be read as ‘and’, the debate remains a live one.

Sam Hopper and Lisa Rennie