Attorney General of the Australian Capital Territory On the Relation of Olaseat Pty Limited v the Australian Capital Territory Minister of Land and Planning, the Australian Capital Territory and the Rotary Club of Canberra Belconnen, Incorporated [1992] ACTSC 80 (21 August 1992)

SUPREME COURT OF THE ACT

ATTORNEY GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY ON THE RELATION OF
OLASEAT PTY LIMITED v. THE AUSTRALIAN CAPITAL TERRITORY MINISTER FOR LAND AND
PLANNING, THE AUSTRALIAN CAPITAL TERRITORY and THE ROTARY CLUB OF CANBERRA
BELCONNEN, INCORPORATED
S.C. No. 157 of 1992
Licences - Market
(1992) 109 FLR 389

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Licences - Licence granted by the Australian Capital Territory to Rotary - Construction and interpretation of Licence Agreement - Agreement to licence and regulate conduct of market.

Licences - Licence Agreement - Alleged breach - Restrictions on sale of certain classes of goods - Allegation that traders are selling goods in opposition to retailers - Whether sale of new goods and goods other than exempt goods are excluded by Licence.

Market - Whether sale of goods at approved market contrary to Trading Hours Act or Hawkers Act - Meaning of "market", "hawker", "shop" - Whether market stall a "shop" - What are "exempt goods".

Trading Hours Act 1962, ss.6, 7

Hawkers Act 1936, ss.5, 6

Wyld v Silver (1962) Ch 561

Summers v Roberts (1944) KB 106

Greenwood v Whelan (1967) 1 QB 396

Warley Caravans v Wakelin (1968) 66 LGR 534

Barking and Dagenham London Borough Council v Essexplan (1983) 81 LGR 408

HEARING

CANBERRA
21:8:1992

Counsel for the Plaintiff: Mr B Tamberlin QC with

Mr R Arthur

Instructing solicitors: Messrs Crossin Power Haslem

Counsel for the First and

Second Defendant: Mr P Walker

Instructing solicitors: ACT Government Solicitor

Counsel for the Third

Defendant: Mr R Refshauge

Instructing solicitors: Messrs Macphillamy Cummins and
Gibson

ORDER

The summons be dismissed.

DECISION

This is an application, by way of a Further Amended Summons. The plaintiff is described as the Attorney General of the Australian Capital Territory on the relation of Olaseat Pty Limited. I will, for both convenience and more relevant reference, refer to the plaintiff as "Olaseat". The defendants are the Minister for Environment Land and Planning (Mr Bill Wood), the Australian Capital Territory (the "Territory") and the Rotary Club of Canberra, Belconnen, Incorporated ("Rotary").

2. Olaseat is the landlord of premises known as Jamison Shopping Centre ("Jamison Centre"). Those premises are used for various businesses selling goods by retail. Olaseat itself conducts a retail business at Jamison Centre. No point is taken as to the standing of the plaintiff.

3. The facts relevant to Olaseat's claim are not really in issue, although there are questions of inferences from those facts which are, at least, not conceded. The central question is one of law.

4. Since at least 1974 Rotary has conducted a "Trash and Treasure" Market in the carpark adjacent to the Jamison Centre. A letter to the Speaker of the ACT House of Assembly described the market in the following terms in March 1984,

"... the Market will continue in its current format with the
emphasis on cottage industry, tourist merchandise, nursery items and
second hand goods".

5. As early as 1984 it was noted that the operation of the Market, as I shall call it, had elicited complaints of "unfair" competition from shopkeepers in the Jamison Centre.

6. The Assistant Secretary, Land Management, in a memorandum dated 25 January 1983, described the original purpose of the market as being,

"... to permit householders and craftpersons to dispose of non
commercially manufactured goods and old items of personal property."

7. In order that the Market might be conducted, Rotary was licensed by written agreements from time to time with the Commonwealth of Australia, through its various officers and agencies, to use part of the carpark area referred to. The more recent licences, and, more particularly, the current licence, is granted by the Australian Capital Territory ("the Territory"). No challenge was made to the validity of these licences as such, although Olaseat contends that they do not authorise, and could not authorise, breaches of Territory law.

8. Pursuant to that licence, Rotary has, each Sunday between 6.00am and 1.00pm, closed off the area of the carpark referred to and charged would be stallholders and customers a fee for use of space or for entry, as the case may be. Over the years, Rotary has raised large sums of money for charitable and community purposes from this activity.

9. The current Licence Agreement ("the Agreement") places some restrictions on the goods, the sale of which Rotary will permit at the Market. Those provisions are,

Cl 6(j) "The Licensee, in granting permission to
a person to sell goods in the Market, shall make it a condition of
that permission that if that person carries on a business of selling
goods in the Territory or elsewhere that person shall not sell goods
normally sold by that person's business;
Cl 6(k) Where the Licensee has reason to
believe that a person may carry on a business of selling goods in the
Territory or elsewhere of the type that person intends to sell at the
Market, the Licensee shall require that person to sign a declaration
drafted in a form identical to that specified in Schedule "A". (The
Schedule declared compliance with cl 6(j))
Cl 6(l) the Licensee shall not sell nor permit
to be sold from the market motor vehicles, medical goods, liquor,
food (other than fresh fruit and vegetables and home made
preserves), ammunition or explosives (including fireworks);"

Clause 6(g) was also referred to.

Cl 6(g) "The Licensee shall comply with all
laws in force in the Australian Capital Territory affecting the use by
the Licensee of the land, and the requirements of any local or other
authority under those laws, and shall use its best endeavours to
ensure that other persons present on the land comply with those laws
of requirements;"

10. By a letter dated 26 February 1987, addressed to Mr John Flutter, an officer of the then Department of Territories, Mr James Notaras, manager of the Jamison Centre (he is also a director of Olaseat), complained that, contrary to the Trading Hours Ordinance 1962 (now an Act),

"... professional retailers mainly from NSW are selling new
clothes, shoes and fruit and vegetables."

11. In his affidavit of 12 March 1992, Mr Notaras referred to complaints he had received from retailers at the Jamison Centre about the range of goods being sold in the Market. Some of the traders at the Market were alleged to have been selling goods in opposition to the retailers at the Jamison Centre. One retailer complained that some traders were selling goods of that kind which were described as "seconds". That term, apparently, describes goods that, whilst not previously used, are rejected by factories and retailers because of some fault.

12. Mr Douglas Creek, an investigator, attended the Market on 22 March 1992, 29 March 1992 and 5 April 1992. He took photographs and he also gave evidence of what he observed taking place at the Market.

13. Outside the Market area, the entrances to which were controlled by Rotary members, Mr Creek noticed the following,

. Children offering for sale some "odds and ends";
. a man offering dogs for sale;
. stalls offering handicrafts for sale;
. take away food caravans along the boundary of the carpark.

14. Within the market area, Mr Creek noted and photographed various stalls. The photographs show various items offered for sale. They include,

. Leathergoods;
. Women's clothing (casual);
. Hats;
. Tie dyed trousers (casual)
. T shirts with printed motifs;
. Cushions;
. Rugs;
. Shoes;
. Tools;
. Toys;
. Sunglasses;
. Jewellery;
. Stationery;
. Books;
. Plants;
. Kitchenware.

15. On 29 March 1992, similar observations were made by Mr Creek. Other varieties of casual clothing were seen displayed for sale. Also observed were framed prints of art works.

16. There were some conversations overheard by Mr Creek indicating that stallholders had been requested to sign a new form by Rotary members. Some stallholders had been told that they would, in future, be excluded. The affected stallholders seemed indignant about that proposal.

17. The document was understood to require stallholders to acknowledge that the goods being offered for sale were "seconds" and that the stallholder had no other "outlet for sale".

18. On 5 April 1992 Mr Creek attended the Market again. He then observed, in addition to previous types of goods, running shoes being offered for sale. There were also:

. Fishing equipment;
. Baby clothing;
. Surf Boards, Wetsuits;
. Linen;
. Sunglasses.

19. Some of the same traders were observed at Natex carrying on similar activities the previous day. Generally, other stalls were conducted much as before. Some traders probably had places of business in New South Wales. The only obvious example, however, was a trader in fashion items who seemed to have closed down and, as a result, was selling off remaining stock.

20. None of the goods mentioned above and photographed seemed to have been previously used by consumers before being offered for sale at the markets. Some items were professionally packaged as if they were new. Other items, though unpackaged, were displayed with labels as if new.

21. Mr James Notaras, a director of Olaseat, has observed the Market for many years. He gave evidence both by affidavit and orally concerning the businesses run at Jamison Centre. I will not list them. It suffices to say that there is an apparent overlap between the types of goods offered for sale in the Jamison Centre and those exposed for sale in the Market. Thus, I am satisfied, if it is relevant to be so satisfied, that the Market competes with the Jamison Centre traders in a general sense although it may well also attract customers to the Centre on a Sunday.

22. To Mr Creek's observations it may be added that on 24 August 1991, Mr Notaras observed plants being sold from a truck. The words "Sykes Indoor Plant Services" were written on it.

23. The various photographs tendered demonstrate that a number of traders at the Market do offer for sale items that do not appear previously to have been used by consumers. There are, nevertheless, considerable numbers of places within the Market where the goods offered for sale are obviously not new.

24. The entrance to the Market has a sign specifying "Conditions for the operation of Stalls in this Market". That was in place at least on 17 May 1992 when the photographs referred to in exhibit B were taken.

25. That sign states,

". THE ROTARY CLUB OF CANBERRA BELCONNEN INC.
(THE LICENSEE) RESERVES THE RIGHT TO DETERMINE WHAT GOODS MAY BE
OFFERED FOR SALE AT THE TRASH AND TREASURE MARKET (THE MARKET).
. THE LICENSEE ACCEPTS NO RESPONSIBILITY FOR ANY TRANSACTION
ENTERED INTO WITHIN THE MARKET.
. THE LICENSEE RESERVES THE RIGHT TO REFUSE ADMISSION TO THE MARKET
TO ANY PERSON AND TO EJECT OR CAUSE TO BE EJECTED ANY PERSON AND
HIS/HER GOODS AND CHATTELS WITHOUT EXPLANATION.
. THE RESERVATION OF STALL SPACES BY ANY MEANS, INCLUDING THE USE
OF BOXES AND TRESTLES TO BLOCK ACCESS TO STALL SPACES, IS NOT
PERMITTED.
. NO DOGS, WITH THE EXCEPTION OF GUIDE DOGS, ARE PERMITTED IN THE
MARKETS.
. THE LICENSEE, IN GRANTING PERMISSION TO A PERSON TO SELL GOODS IN
THE MARKETS, REQUIRES THAT IF THAT PERSON CARRIES ON A BUSINESS OF
SELLING GOODS IN THE TERRITORY OR ELSEWHERE, THAT PERSON SHALL NOT
SELL GOODS NORMALLY SOLD BY THAT PERSON'S BUSINESS.
. THE SALE FROM THE MARKET OF MOTOR VEHICLES, MEDICAL GOODS,
LIQUOR, FOOD (OTHER THAN FRESH FRUIT AND VEGETABLES AND HOME MADE
PRESERVES), AMMUNITION OR EXPLOSIVES (INCLUDING FIREWORKS) IS NOT
PERMITTED.
. IT IS A REQUIREMENT THAT ALL ITEMS OFFERED FOR SALE IN THE
MARKETS ON A PARTICULAR DAY AND NOT SOLD SHALL BE REMOVED FROM THE
SITE IMMEDIATELY AT THE CONCLUSION OF THE MARKET ON THAT DAY.
. IT IS A REQUIREMENT THAT ALL STALLHOLDERS SHALL COMPLY WITH ALL
APPROPRIATE LAWS OF THE TERRITORY."

26. Stallholders are also issued with a ticket. One, issued on 10 May 1992, was tendered in evidence. All tickets so issued were said to be in the same form.

27. On the back of the ticket there are also conditions. Apart from current prices for stall spaces (condition 8), they are as follows:

"1. The Rotary Club of Canberra Belconnen Inc (the Club) reserves
the right to determine what goods may be offered for sale at the Trash
and Treasure Market (Market).
2. No processed food shall be offered for sale within the Market.
3. No alcoholic liquor, motor vehicles, firearms, ammunition or
explosives shall be offered for sale within the Market.
4. The Club accepts no responsibility for any transaction entered
into within the Market.
5. The Club reserves the right to refuse admission to the Market to
any person and to eject or cause to be ejected any person and/or
his/her goods and chattels without explanation.
6. The reservation of stall spaces by any means, including the use
of boxes and trestles to block access to stalls, is not permitted.
7. Stallholders shall comply with all appropriate laws of the
Australian Capital Territory."

28. Olaseat did request the Minister for Urban Services to expressly prohibit the sale of "new" goods at the Market. This was particularly aimed at new items of clothing. That request was refused. On 21 March 1991 the same issue was addressed on the occasion of the issue of the renewed Licence Agreement agreed to at that time. It was accepted that what were described as "new goods and services" were available at the Market although the goods excluded by the previous agreement and referred to in condition 3 above, were not being sold.

29. Although it was recognised that there was some degree of competition by stallholders with Jamison Centre traders, renewal of Rotary's licence was recommended.

30. There was until January 1984, a condition inserted in Rotary's Licence Agreement as follows:

"The selling of new items usually sold by nearby business houses
during ordinary business hours will not be permitted, nor will any
other items specified from time to time."

31. It seems that it was simply impossible to decide what constituted "new" items. A further clause was substituted in January 1984.

"The grantee shall ensure that no items are sold within the permit
area where such sales would reasonably be regarded as constituting
unfair competition to retailers trading within half a kilometre of the
permit area."

32. In response to representations protesting at this clause, the then Minister agreed to delete it, although he declined to exempt the Market from the Trading Hours Act.

33. The Licence Agreement was therefore redrafted to include, relevantly, the following terms:

Cl 12 "The Commonwealth may from time to time specify by written
notice addressed to the grantee, items the sale of which shall be
prohibited within the permit area and upon receipt of such notice, the
grantee shall ensure that such items are not sold therein.
Cl 13 The grantee shall ensure that where permission is given to
a retailer who carries on a business either in the Australian Capital
Territory or elsewhere, to sell goods within the permit area the
person shall not sell goods normally sold from his premises."

34. Clause 13 was said to reflect s.7(4) of the Trading Hours Act. The Minister informally advised Rotary that "commercial operators" should be excluded from the Market.

35. That latter concept also proved elusive. The present Licence Agreement has been drafted differently to those previous agreements.

36. It is apparent that the sale of "new" goods or products is not forbidden by the Agreement. It was reported, after a Departmental inspection on 17 December 1989, that half the stalls were selling "new goods", although many were of "second quality".

37. Subsequent pleas from Olaseat for the Agreement to be so drawn as to exclude "new goods" have been denied.

38. Mr John Sheldrick, President of Rotary, gave evidence that the Agreement was enforced by questioning traders who seemed to be "professional" whether they sell goods of the kind displayed by them, at "premises" elsewhere. If they admit to doing so, they are asked to leave.

39. The current Licence Agreement is with the Australian Capital Territory, it provides as follows,

Cl 6 -
"(j) The Licensee, in granting permission to a person to sell goods
in the Market, shall make it a condition of that permission that if
that person carries on a business of selling goods in the Territory or
elsewhere that person shall not sell goods normally sold by that
person's business;
(k) Where the Licensee has reason to believe that a person may
carry on a business of selling goods in the Territory or elsewhere of
the type that person intends to sell at the Market, the Licensee shall
require that person to sign a declaration drafted in a form identical
to that specified in Schedule "A".
(l) the Licensee shall not sell nor permit to be sold from the
market motor vehicles, medical goods, liquor, food (other than fresh
fruit and vegetables and home made preserves), ammunition or
explosives (including fireworks);"
"SCHEDULE "A"
DECLARATION
To the Rotary Club of Canberra, Belconnen Inc.
I, of in the Australian Capital
Territory declare to the Rotary Club of Canberra, Belconnen Inc. that
I am the stallholder of a stall at the Jamison Trash and Treasure
Market in Lane No. on this
day of 1992 and have on display for sale the following
goods:
and further declare that I do not carry on a business of selling goods
of the kind which I am displaying for sale on this day anywhere else,
whether in the Territory or not.
..................................
DATED the day of 1992"

40. Generally, the Market attracts 4,000 to 7,000 customers and over 200 stalls each Sunday.

41. I am satisfied that Rotary has conscientiously done its best to ensure compliance with the terms of the Agreement.

42. However, Olaseat claims that the Trading Hours Act forbids the sale of many of the items that the Agreement permits or would, but for the Act, permit.

Trading Hours Act 1962 ("the Act")
43. There is no general exemption for the Market. The Act does contain some exemptions.

44. Section 6(2) provides (I set out only provisions possibly relevant),

"This Act does not apply to or in relation to the sale of exempt
goods, or in relation to the sale of any other goods
(a) by a person otherwise than for the purpose of, or in the course
of, carrying on a business;
(c) by a hawker for the purpose of, and in the course of, carrying
on business as a hawker;
(d) by an organization otherwise than
(i) in the ordinary course of business of the organization; and
(ii) for the purposes of profit or gain to the individual members
of the organization;"

45. Section 6(2)(a) and (d) may be considered together. Plainly, persons selling goods at the market otherwise than for profit to themselves or an "organization" (or the members of it) may sell goods of any kind. No provision of the Act applies to them (including, of course, s.7(4)).

46. It is obvious from s.6(2)(a) and (d) that the claim for relief sought by the plaintiff is misconceived insofar as it seeks to prevent the sale of certain classes of goods. That comment does not, however, apply to persons who are carrying on "a business" in selling goods at the Market.

47. Any order restraining sale of goods of a kind, if any, prohibited by the Act must be limited to persons then carrying on "a business" of so doing. A similar limitation would need to be expressed in relation to sales of goods by or in relation to organizations.

48. It is necessary to consider the impact of s.6(2)(c). The term "hawker" is not defined in the Act. Such a class of persons are not prohibited from selling whatever goods they wish at the Market.

49. Generally, the Oxford Dictionary defines a hawker as "a man (or woman) who goes from place to place selling his wares, or who cries them from the street". It is obvious enough that many traders in the Market are travelling sellers of goods, particularly those who do the rounds of markets such as the Market.

50. Insofar as traders at the Market are there carrying on the business of a hawker, they are exempt from any provision of the Act (including s.7(4)).

51. It is necessary, therefore, to consider whether the activities of those traders, whilst not forbidden by the Trading Hours Act 1962 are forbidden by the Hawker's Act 1936.

Hawkers Act 1936 (ACT)
52. The Hawkers Act does define a "hawker" for its purposes. It applies to (per s.5(1)),

"Any person who carries any goods on his person or on any animal
or in or on any vehicle for the purpose of selling or offering for
sale those goods, or who sells or offers for sale any goods carried on
his person or on any animal or in or on any vehicle, shall, unless he
is the holder of an assistant hawker's licence, be deemed to be
carrying on the business of a hawker within the meaning of this Act."

53. Section 6(1) prohibits a person "carrying on the business of a hawker" without a licence. However, that prohibition does not apply (s.6(3)),

"... to the sale or carrying or offering for sale of any goods in
any market or fair established in the Territory ..."

54. The only matter which is unarguable in this matter is that the activity conducted by Rotary is a "market". It may well, also, be a "fair". (See, for example, Wyld v Silver (1962) Ch 561.)

55. It was not suggested, nor does the evidence establish that those traders at the Market who are "carrying on business" as opposed to those who are not, are doing so within 180 metres of a "shop". There is a prohibition on such activity by virtue of s.6A(1) of the Hawkers Act. However, such activity may be authorised by "the Minister". It is clear that "the Minister", by virtue of the Agreement, has authorised persons to carry on the business of a hawker in the Market. It would, accordingly, make no difference to the lawfulness of the activities of traders at the Market if there were hawkers within 180 metres of any "shop".

56. It would, I suppose, be possible to read s.6A(1) very restrictively so as to require individually written authorities for each hawker at the Market. However, such a view would render s.6(3) of little value. Clearly, if the Minister grants permission for a "market or fair" to be established in the Territory, that permission must carry with it permission for traders to sell goods at the place so established for the purpose.

57. It follows from the above that neither the Trading Hours Act nor the Hawkers Act restrict the range of goods which may be sold at the Market during its authorised hours of operation. Neither do they restrict the person or classes of persons who may engage in carrying on trading at the Market. The traders are either carrying on the business of a hawker or they are engaged in activity that falls outside of the concept of carrying on business.

58. Much of the argument before me was also directed to identifying "exempt goods". It is, strictly speaking, unnecessary to consider that issue.
Trading Hours Act, s.7

59. If, contrary to my opinion, the activities of traders at the Market are not regarded as excluded from the ambit of the Act, it is then contended that s.7 of the Act requires the range of goods offered for sale to be restricted to "exempt goods" traded by persons who do not have a "shop" elsewhere.

60. Section 7 is in the following terms:

"7. (1) This section does not apply to or in relation to the sale
of -
(a) exempt goods; or
(b) goods sold by auction.
(2) For the purposes of this section, the sale of goods at a shop
is prohibited at any time
(a) on a Sunday;
(b) on a day that is a public holiday in the Territory or in part
of the Territory in which the shop is situated;
(c) on a week day - before the hour of 6 o'clock in the morning of
that day;
(d) on a week day that is not a late shopping day in relation to
the shop - after the hour of 6 o'clock in the evening of that day;
(e) on a week day that is a late shopping day in relation to the
shop - after the hour of 9 o'clock in the evening of that day;
(f) on a Saturday that is not a public holiday - before the hour of
6 o'clock in the morning of that Saturday; or
(g) on a Saturday that is not a public holiday - after the hour of
noon on that Saturday.
(3) A person shall not sell goods at a shop at a time when the sale
of goods at a shop is prohibited.
Penalty: $200.
(4) A shopkeeper shall not, at a time when the sale of goods at a
shop is prohibited, sell away from his shop goods of a kind that he
ordinarily sells at his shop.
Penalty: $200."

61. Why s.7(1) needed to provide that s.7 has no application to the sale of exempt goods when s.6(2) provides that the Act as a whole does not apply to exempt goods is a mystery I need not resolve. The intention to allow the sale only of exempt goods outside prohibited hours is no less clear for being repeated.

62. Section 7(2) prohibits the sale of goods (not being exempt goods) "at a shop" on (inter alia) a Sunday. The prohibition is supported by making it an offence to sell goods "at a shop" at a prohibited time. It is also an offence for "a shopkeeper" at a prohibited time to "sell away from his shop goods of a kind ... he ordinarily sells at his shop".

63. The term "shop" is defined by s.5(1) as -

"... a place, building, stall or tent in which
(a) goods are sold or exposed for sale; or
(b) goods are received for servicing or repair;"

64. "Shopkeeper" is defined as,

"... a person who directly or indirectly, as principal, occupies a
shop."

65. The use of the word "in" gives some guidance to the degree of exclusivity and definition required for a "shop". Ordinarily, a market stall would not be regarded as a "shop" (see, for example, Summers v Roberts (1944) KB 106, Greenwood v Whelan (1967) 1 QB 396). This is said to be because it lacks the necessary degree of permanency, although it seems that the structure, if any, for use in storing or displaying goods need not be more than bare ground, for example, a place or yard for selling vehicles (see Warley Caravans v Wakelin (1968) 66 LGR 534).

66. Depending on context, however, there is no reason why a market stall could not be a "shop" (see, for example, Barking and Dagenham London Borough Council v Essexplan (1983) 81 LGR 408.

67. In my opinion, the use of the terms "stall or tent" indicate that the Act was intended to apply to any place being occupied for the purpose of the sale of goods, even if the occupation was to be temporary and the associated structures were minimal. That is to be contrasted with the term "shop" in s.6A(1) of the Hawkers Act. There a fixed place occupied for the purpose of trading is plainly intended.

68. Also, the term "shop" for the purposes of s.7(4) must indicate a place usually occupied and used as a shop. It cannot apply to the hawker who carries his "shop" from place to place. It may be added, also, that the "shop" in question can only be situated in the Territory. The Trading Hours Act does not purport to control shopkeepers in New South Wales or elsewhere. It would hardly do so by reference to a prohibition on selling goods imposed only on shops in the Territory.

69. It is, to some extent, artificial to consider this point because, if the trader habitually and frequently shifts the location of his or her tent or stall, that trader will be a hawker and excluded from the operation of the Act in its entirety, including the consequences of coming within the stipulative definition of the term "shop". That trader, as already noted, does not come within s.7 of the Act for any purpose.

70. However, if s.7 does apply and if the stalls occupied at the Market are "shops", a question would arise as to what are "exempt goods".

71. There is a list of 19 categories of such goods and classes of goods in the Schedule to the Act.

72. Many of the items depicted by the photographic evidence are, of course, clearly within that list. Others, equally clearly, are not. Of the items which the plaintiff claimed entitlement to restrain, for example, "new tools" would be "hardware", "new jewellery" would be "handicraft goods". They would be "exempt goods". Items of personal apparel, however, unless themselves handicrafted, second hand or souvenirs, would not be exempt goods. The list of goods Olaseat suggests should be regarded as outside the range of "exempt goods" would therefore need considerable qualification, even if it was appropriate to grant relief.

73. It is, fortunately, unnecessary for the reasons I have stated to further consider the extent of the range of goods which fall outside the definition of "exempt goods" or whether the relief sought might have been refused on discretionary grounds.

74. It follows that the plaintiff's summons is dismissed. I will hear the parties as to costs.