Retailer Harvey Norman suffered a further blow in its continuing push for changes to retail trading hours last week when the WA Supreme Court dismissed an appeal in relation to breaches of the Retail Trading Hours Act (RTHA).
Retailer Harvey Norman suffered a further blow in its continuing push for changes to retail trading hours last week when the WA Supreme Court dismissed an appeal in relation to breaches of the Retail Trading Hours Act (RTHA).
In June 2003, in a deliberate breach of RTHA to test the law, Harvey Norman advertised all its franchise stores as being open on Sunday June 22.
The Department of Consumer and Employment Protection lodged an action against the Osborne Park franchise for breaches of the RTHA based on the evidence of an inspector who attended the store on that Sunday.
Justice John McKechnie upheld the department’s position, dismissing Harvey Norman’s argument that goods were not for sale, based on a statutory interpretation of the RTHA.
In the first line of his judgement Justice McKechnie said that, “an air of unreality pervades these appeals”, and pointed out that Harvey Norman had advertised in two newspapers that its stores would be open.
He also added that any person attending the Harvey Norman store in Osborne Park that Sunday would have no difficulty in concluding that the store was open for business.
“They would be no doubt surprised that the apparent evidence of their own eyes would be insufficient to decide whether the store was open for Sunday trading … instead lawyers would argue, and a magistrate and a judge would consider and resolve legal principles to decide whether what was apparently obvious is also legally true,” Justice McKechnie said.
Harvey Norman representative Paul Plowman, who is also a spokesman for Franchisees Against Inequitable Retailing (FAIR), said the group was very disappointed with the outcome of the appeal.
“Unfortunately the situation in Western Australia remains that some traders can trade on Sundays and others are denied those opportunities,” Mr Plowman said.
Harvey Norman is likely to lodge an appeal and is seeking advice from lawyers in relation to taking further action.
“The situation remains very unclear for retailers, and we want a position of fairness for retailers to trade,” Mr Plowman said.
“While Harvey Norman may have been running contrary to the law on that Sunday, there are inequities in the marketplace, which creates a fair degree of inconsistency and hypocrisy.”
He gave the example of Bunnings being able to sell home wares on Sundays because they are classified as a hardware store, whereas competitors who are classified otherwise cannot open on Sundays.
Despite the outcome of the February 26 referendum on retail trading hours, which showed a lack of community support for expansion of retail hours, Harvey Norman will continue to push its case.
“We respect the outcome of the referendum, but believe the law should be reformed where our competition enjoys a different set of rules,” Mr Plowman told WA Business News.
He said the issues of retailers facing different trading principles were not clearly heard at the referendum.
“The referendum was very clear on not wanting a threat of large business to small business, but we don’t believe the outcome can be interpreted as not wanting some sectors trading on Sunday,” he said.
Consumer Protection commissioner Patrick Walker said DOCEP was very pleased with the Supreme Court decision and would confidently proceed with other pending matters relating to Harvey Norman stores.
