Banks v Tremain

[2001] NSWSC 766

CITATION:	Banks v Tremain & Ors [2001] NSWSC 766
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 12463/01
HEARING DATE(S):	29 August 2001
JUDGMENT DATE:	4 September 2001
PARTIES :	Alan Banks Kevin Stanley Tremain Paul Kim t/a Golden Floor Sanding Fair Trading Tribunal of NSW
JUDGMENT OF:	Sperling J at 1

LOWER COURT JURISDICTION :	Fair Trading Tribunal of NSW
LOWER COURT FILE NUMBER(S) :	BU 1999/1231
LOWER COURT JUDICIAL OFFICER :	Mr Hookey

COUNSEL :	P J Snelgrove for the Plaintiff R Weaver for the First Defendant B Morris for the Second Defendant
SOLICITORS:	Snelgrove & O'Brien Solicitors for the Plaintiff Kevin E Worthington Solicitor for the First Defendant Benjamin & Khoury Solicitors for the Second Defendant
CATCHWORDS:	Practice and procedure - Appeal from Fair Trading Tribunal of NSW - whether Tribunal obliged to give reasons for decision without request to do so - whether jurisdictional limit applies to the amount mentioned before the Tribunal or on appeal - whether the regulation prescribing jurisdictional limit is ultra vires
LEGISLATION CITED:	Fair Tradiing Tribunal Act 1998, s45, s61 Fair Trading Tribunal Regulation 1999, cl18
DECISION:	Notice of motion dismissed; Otherwise, per para 23 of this judgment.

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IN THE SUPREME COURT
OF NEW SOUTH WALES

Common Law Division

4 September 2001

SPERLING J

12463/01 Banks v Tremain & Ors

Judgment

1    By summons filed on 8 August 2001, Mr A Banks appeals against a determination of the Fair Trading Tribunal of New South Wales, in its Home Building Division, being proceedings No. BU 1999/1231.

2 The appeal is brought pursuant to s 61 of the Fair Trading Tribunal Act 1998 which provides so far as is relevant:

61(1) A party to proceedings before the Tribunal may appeal to the Supreme Court on a question of law against any decision of the Tribunal in those proceedings, except where the regulations preclude such an appeal.
(2) ...
(3) ...
(4) Regulations made for the purposes of subsection (1) may preclude an appeal;
(a) in cases where the amount claimed or disputed in the matter concerned did not exceed $25,000 (or such other amount as may be prescribed), or
(b) in cases of any prescribed class or description.

3 Clause 18 of the Fair Trading Tribunal Regulation 1999 provides as follows:

18. No appeal lies to the Supreme Court under section 61 of the Act in respect of a decision of the Tribunal:
(a) in a matter heard in the Consumer Claims Division or the Motor Vehicle Division of the Tribunal, or
(b) in a matter in the Home Building Division of the Tribunal in which the amount claimed or disputed does not exceed $25,000.

4    The claim before the Tribunal was brought by Mr K S Tremain. It was for $38,000. On 19 July 2001, the member of the Tribunal who heard the claim, Mr Hookey, made an award against Mr Banks for $18,000. No award was made against Mr P Kim who had also been joined as a party. Mr Banks was ordered to pay Mr Tremain’s costs, and Mr Tremain was ordered to pay Mr Kim’s costs.

5    No record was made of the evidence which was taken over a period of some days. Mr Hookey delivered his judgment orally on 19 July 2001. It took about half an hour. It was tape recorded. No transcription has been attempted. The quality of the tape recording is not known.

6    The decision was notified by notice of order issued on 24 July 2001. That was pursuant to s 45 of the Act, which provides as follows:

45(1) The Tribunal must within the time prescribed by the regulations, give notice of its decision in a matter to the parties to the proceedings.
(2) If the regulations so require (or if a party to the proceedings, within the time and in the manner prescribed by the regulations, requests the Tribunal to do so), the Tribunal must also prepare a written statement of reasons for its decision. The statement may be brief, but must:
(a) set out the decision and the reasons for it,
(b) set out the findings on any material question of fact, and
(c) refer to the evidence or any other material on which the findings of fact were based.
(3) The Tribunal is to cause a copy of any statement prepared under subsection (2) to be served on each party to the proceedings within the prescribed time after the decision concerned was made.

7    On 24 August 2001, Mr Tremain filed a notice of motion seeking an order that the summons be dismissed. This is, then, an application for summary dismissal pursuant to Pt 13 r 5(1)(a). The bar is high. The court must be satisfied that the proceedings are clearly futile.

8    Counsel for Mr Tremain put his case on two grounds:

(1) The absence of a record;

(2) The jurisdictional limit.

Ground (1): The absence of a record.

9    It was at first thought that there was no record at all but, as mentioned above, later evidence showed that there is a tape recording of the judgment.

10    One of the grounds of appeal in the summons is deficiency of reasons. The tape recording of the judgment might be technically sound. So the content of the judgment may be ascertainable. It is then possible that there might be a demonstrable deficiency of the kind asserted by Mr Banks. That would give rise to the following questions:

(a) Was there an obligation to give reasons at that stage and without a request to do so, in view of the provisions of s 45?

(b) If there was no obligation to give reasons at that stage, can there have been error of law in failing to give adequate reasons at that stage?

(c) Should s 45 be seen as merely facilitating the performance of an obligation to give reasons rather than the source of such an obligation, so that failure to give adequate reasons would be an error of law whenever the reasons were given?

11    The hearing of the application was listed with an estimate of one hour. The reading of evidence and the presentation of submissions took about that time. The points I have mentioned were not argued in depth. No authorities were cited in relation to obligation to give reasons. No principles were stated and no cases were cited in relation to the aspect of statutory interpretation involved. The over-all structure of the legislation was not reviewed for context.

Ground (2): Jurisdictional limit on appeal.

12 It was submitted on behalf of Mr Tremain that the appeal was precluded because “the amount claimed or disputed does not exceed $25,000” within the meaning of cl 18 of the 1999 regulation. The argument was that the regulation directs attention to the amount involved in the appeal, in this case, $18,000.

13    The contrary argument advanced on behalf of Mr Banks was that the regulation addresses the amount involved in the claim before the Tribunal. That was $38,000.

14    There are problems about both constructions. I raised for consideration that Mr Tremain’s construction does not sit comfortably with use of the word “claimed” in the regulation. Money is not claimed on an appeal. I also raised for consideration that Mr Banks’ construction meant that the jurisdictional limit would be satisfied by the happenstance of an unreasonable ambit claim before the Tribunal.

15 I also raised for consideration whether cl 18 of the regulation was ultra vires the regulation making power in s 61 of the statute or the general regulation making power in s 77, in view of the change of tense as between s 61 and cl 18 of the regulation. If there was a shift in focus from the amount involved in the claim before the Tribunal to the amount involved in the appeal that could be the case.

16    Again, these matters were not argued in depth. No principles relating to statutory interpretation were stated and no authorities were cited. The practical implications of the competing constructions advanced on behalf of the parties were not examined. The ultra vires point was not addressed in more than a cursory fashion.

Conclusions

17    Having regard to the questions which arise and the foregoing considerations, I am not persuaded that the summons cannot succeed. The notice of motion should accordingly be dismissed, Mr Tremain to pay Mr Banks’ costs.

18    Mr Kim was joined as a defendant. He supported the notice of motion. He should pay his own costs of the motion.

19    The summons is not properly framed to specify succinctly, clearly and exhaustively the errors of law asserted. It should be amended to that end.

20    It will be necessary for Mr Tremain to put the judgment of the Tribunal before the court on the hearing of the summons. A transcription of the judgment should be prepared. If necessary, the tape recording of the judgment can be brought into court under subpoena and released to his solicitors for the purpose of preparing a transcription. The transcript can be annexed to an affidavit.

21    The parties should have the opportunity of filing whatever further evidence they wish in relation to the proceedings before the Tribunal.

22    The question of the Tribunal’s obligation to give reasons and the question of jurisdictional limit for appeal have important implications for the operation of the legislation in relation to first instance hearings and in relation to appeals. A copy of this judgment should be provided to the Attorney-General. He should be invited to make such application as he may be advised to be heard by counsel on the hearing of the summons. Speaking for myself, I believe that the court would be assisted by such intervention.

Orders and directions

23    I make the following orders and directions:

(1) Notice of motion filed on 24 August 2001 dismissed;
(2) The first defendant to pay the plaintiff’s costs of the notice of motion;
(3) No order as to the costs of the second defendant in relation to the notice of motion;
(4) Leave to the plaintiff to file an amended summons within 28 days from today’s date;
(5) Leave to the plaintiff to file further evidence within 28 days from today’s date;
(6) Leave to the defendants to file further evidence within 14 days thereafter;
(7) Leave to the plaintiff to file any evidence in reply within seven days thereafter;
(8) The summons to be listed for the first available call-up before the list judge, not earlier than eight weeks from the present date, with my estimate of one to two days, the registry to notify the parties of the call-up date;
(9) The registry to write to the Attorney-General pursuant to para 22 of this judgment.


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Last Modified: 09/05/2001