Commercial Tribunal Act 1982 (SA)

SOUTH AUSTRALIA

COMMERCIAL TRIBUNAL ACT, 1982

This Act is reprinted pursuant to the Acts Republication Act, 1967, and incorporates all amendments in force as at I April 1987.

The Commissioner of Statute Revision is authorized by the Acts Repub- lication Act, 1967, to make textual alterations of various kinds to an Act in preparing it for reprint. These alterations do not affect the substantive law. A report has been prepared containing a comprehensive list of textual alter- ations made under the Acts Republication Act, 1967, in the preparation of this reprint. Copies of the report are available, on request from the ofice of the Commissioner of Statute Revision, 11th Floor, S.G.I.C. Building, Victoria

Square, Adelaide.

Commercial Tribunal Act. 1982

SUMMARY OF PROVISIONS

PART l

PRELIMINARY

Section

1.         Short title

4.         Interpretation

4a. Transitional provisions

PART 11

THE COMMERCIAL TRIBUNAL

Establishment of the Tribunal

Constitution of the Tribunal

The Chairman and Deputy Chairmen of the Tribunal

Panels	~
Allowances and crpmws
The Commercial Rustrar and Deputy Commercial Registrar of the Tribunal
Valrdrty of acts of the Tribunal and xmmunity of its members

DIVISION 11-MANNER IN WHICH TRIBUNAL IS TO ARRIVE AT TTS DEC~SIONS

Decisions in o l x s where Tribunal sits in bunco

Principles on which Tribunal is to make decisions

Dl~lSl0N 1II-PROCEDURES AND POWERS OF THE TRIBUNAL

Proceedings before the Tribunal

Powers of the Tribunal

Orders for fines or costs

Reasons for decisions of Tribunal

Operation of order may be suspended

DIVI~ION IVdASES STATED. APPEALS AND REVIEWS

Case stated

Appeal

Proceedings to lie to single Judge of Supreme Court

Cenain divisions of the Tribunal are subject to review

PART I11

MISCELLANEOUS

Registers, etc.

Power to cure il'regularities

Proof of judgments and orders of the Tribunal

Enforcement of orders

Contempt of the Tribunal

How contempts of the Tribunal are dealt with

Regulations

COMMERCLAL TRIBUNAL ACT, 1982

being

Commercial Tribunal Act, 1982, No. 38 of 1982 [Assented to 22 April 19821'

as amended by

Commerc~al Tribunal Act Amrndnlmt Acl, 1983, No. 44 o r 1983 [Assented to 16 June 19831-.

Swtutes Amendment (Commrrcial Tenancies) Act. 1985, No. 19 o r 1985 [Assented to 1.I March 19851': Commercial Tribunal Act Ammdmcnt Act, 1986, No. 113 or 1986 [Assented to 18 Dccembrr 19861'. NOTE: Asterisks indicate repeal or deletion of text. For further explanation see Appendix.

An Act to establish a tribunal to exercise statutory jurisdictions formerly exercised by various boards and tribunals; to confer certain powers on the tribunal; and for other purposes.

The Parliament of South Australia enacts as follows:

PART I

PRELIMINARY

1. This Act may be cited as the "Commercial Tribunal Act, 1982". sh,,, ,i,~,.

4. In this Act, unless the contrary intention appears- Internretation

"Commercial Registrar" means the person for the time being holding

or acting in the office of the Commercial Registrar:

"the Commissioner" means the person for the time being holding or

acting in the office of Commissioner for Consumer Affairs:

"Deputy Commercial Registrar" means a person for the time being

"registrar" means the Commercial Registrar or a Deputy Commercial holding or acting in the office of a Deputy Commercial Registrar: Registrar:

"relevant Act" means an Act that confers jurisdiction on the Tribunal:

"the Senior Judge" means the person for the time being holding, or acting in, the office of Senior Judge under the Local and District Criminal Courts Act, 1926:

"the Tribunal" means the Commercial Tribunal established under

this Act.

I Came into opention I March 1984: Gru. 1 March 1984, p. 445.

2 Came into operation I March 1984: Goz. 1 March 1984, p. 446.

' Came into opention I January 1986: Gaz. 12 December 1985, p. 1802.

Came into opention 22 January 1987: Goz. 22 January 1987, p.122.

2 Commercial Tribunal Act, 1982

TW">~!~O"~I 4a.

(1) If, when the Tribunal acquires jurisdiction to hear and determine proceedings of a particular kind, any such proceedings have been com- menced but not completed, the proceedings may be continued and deter- mined by the Tribunal as if they had been commenced under the relevant Act by which the jurisdiction was conferred, a s in force upon the conferral of that jurisdiction.

,,"Y'lionr.

(2) The Chairman of the Tribunal may give directions in relation to the constitution of the Tribunal for the purpose of hearing and determining proceedings to which subsection (1) relates, and such directions shall have effect notwithstanding any conflict between those directions and the provi- sions of this Act.

(3) Where an order of a kind that the Tribunal has juridiction to make under the provisions of a relevant Act is in force immediately before the Tribunal acquires jurisdiction to make such an order, the order shall be deemed to be an order of the Tribunal and shall have effect as if made under the relevant Act by which the jurisdiction was conferred, as in force upon the conferral of that jurisdiction.

PART I1

THE COMMERCIAL TRIBUNAL

DIVIS~ON I-CONSTITUTION OF THE TRIBUNAL

UIaD,LlhmC"l or	5. There shall be a tribunal entitled the "Commercial Tribunal".
fhc Tribunal

Con~lltuI~m or 6.

(1) Subject to this section, the Tribunal shall be constituted in relation

to the hearing of any proceedings or the conduct of any other business of

the following members:

,he Tribunal

(a)	the Chairman or a Deputy Chairman of the Tribunal;
(b)	a member of the appropriate panel constituted under section 8(1) and selected by the Chairman or a Deputy Chairman of the Tribunal to be a member of the Tribunal for the purpose of the hearing of those proceedings or the conduct of that busi- ness;
(c)	a member of the panel constituted under section 8(2) and selected by the Chairman or a Deputy Chairman of the Tribunal to be a member of the Tribunal for the purpose of the hearing of those proceedings or the conduct of that business.

(2) The membership of the Tribunal may if the Chairman or a Deputy Chairman of the Tribunal, in a particular case, so determines include one or more members of a panel constituted under section 8(3).

(3) Where proceedings (including proceedings founded on an applica- tion) involving the same or similar questions are commenced under two or more of the relevant Acts, the Chairman or a Deputy Chairman of the Tribunal, if of the opinion that it would be expedient to consolidate those proceedings and that the consolidation would not unfairly prejudice any party to the proceedings, may direct that the proceedings be consolidated accordingly and in that event a member shall be selected under subsection (l)(b) from each panel constituted in relation to the Acts under which the consolidated proceedings arise.

(4) The regulations may provide that, in relation to the exercise of specified powers or functions, or in relation to matters of a specified class,

Commercial Tribunal Act, 1982 3

the Tribunal may be constituted solely of the Chairman or a Deputy Chair- man and where the regulations so provide, the Tribunal may be constituted accordingly.

(5) The Tribunal, separately constituted in accordance with this section, may sit simultaneously for the purpose of hearing and determining separate proceedings or conducting separate business of the Tribunal.

(6) Where other provisions of this Act or the provisions of a relevant Act deal with the manner in which the Tribunal is to be constituted for the purposes of proceedings or any other business under a relevant Act, this section shall be construed subject to those provisions.

7. (1) There shall he-	The Chairman and a o u l y
a a i m c n of ,he

(a) a Chairman of the Tribunal;

Tribunal.

and

(b) not more than five Deputy Chairmen of the Tribunal.

(2) The Chairman and Deputy Chairmen of the Tribunal shall be appointed by the Governor.

(3) A person is not eligible for appointment as the Chairman or a Deputy Chairman of the Tribunal unless he or she is-

(a) a District Court Judge;

(b) a legal practitioner of not less than seven years standing.

(4) A District Court Judge shall not be appointed as the Chairman or a Deputy Chairman of the Tribunal except upon the nomination of the Senior Judge.

(5) If the Chairman is absent or unavailable to act a Deputy Chairman nominated by the Minister may act in the office of the Chairman.

(6) A District Court Judge is not precluded by appointment as the Chairman or a Deputy Chairman of the Tribunal from performing any other judicial functions.

8. (1) The Governor may in relation to each of the relevant Acts paneis

establish a panel consisting of members representative of the interests of the class or classes of persons who are licensed or registered under the

Act. relevant Act, or whose conduct is otherwise regulated under the relevant	(2) The Governor may establish a panel consisting of members repre- sentative of members of the public who deal with the persons who are licensed or registered under the relevant Acts or whose conduct is otherwise regulated under the relevant Acts.
(3) The Governor may establish panels of experts whose expertise would in the opinion of the Governor be of value to the Tribunal.
(4) A member of a panel shall he appointed for such term of office, not exceeding three years, as the Governor may determine and specifies in the instrument of appointment and, upon the expiration of that term, shall be eligible for reappointment.

(5) The Governor may remove a member of a panel from office for-

4 Commercial Tribunal Act,1982

(a) mental or physical incapacity to carry out satisfactorily official

duties;

(b) neglect of duty;

(c) dishonourable conduct.

(6) A person ceases to be a member of a panel if the person-

(a) dies;

(b) completes a term of office and is not reappointed;

(c) resigns by notice addressed to the Minister;

or

(d) is removed from office under subsection (5).

(7) The Governor may make appointments from time to time for the purpose of maintaining or increasing the membership of panels established under this Act.

Allow~ncn and 9.

A member of the Tribunal is entitled to such allowances and expenses as may be determined by the Governor.

eipenrca.

(6) one or more Deputy Commercial Registrars.

(2) The Commercial Registrar must be a legal practitioner.

(3) A registrar is a Public Service employee.

(4) A registrar is an executive officer of the Tribunal and-

(a) has, subject to paragraph (b), the powers, discretions and functions conferred on, or assigned to, registrars by or under this Act or any other Act;

and

(6) if the registrar is a legal practitioner-may with the approval of

the Tribunal or the Chairman exercise the jurisdiction of the

Tribunal in relation to matters of a prescribed class.

(5) Where a registrar exercises the jurisdiction of the Tribunal, the registrar may, and shall, if the Tribunal or the Chairman so directs, refer the matter to the Tribunal for determination by the Tribunal.

vai ia i tyoianroi

11. (1) An act or proceeding of the Tribunal is not invalid by virtue (2) No liability attaches to a member of the Tribunal for an act or omission by the member or the Tribunal in good faith and in the exercise of official powers or functions by the member or the Tribunal.

the Tribvnal and

mcmblrr.

only of a vacancy in the membership of a panel from which members of

the Tribunal are drawn.

Commercial Tribunal Act, 1982 5

DIVISION 11-MANNER IN WHICH TRIBUNAL IS TO ARRIVE AT ITS DECISIONS

12. Where the Tribunal is constituted of the Chairman or a Deputy mcisiom.incs= v h c n Tribunal

Chairman and two or more other members- S ~ U in knro

(a) the Chairman or Deputy Chairman shall preside;

(b) the Chairman or Deputy Chairman shall determine any question

relating to the admissibility of evidence and any other question

of law or procedure;

and

(c) on any other question a decision in which a majority of the members of the Tribunal (excluding any drawn from a panel constituted under section 8(3)) concurs shall be a decision of the Tribunal and, if they are equally divided in opinion, the question shall be decided in accordance with the opinion of the Chairman or Deputy Chairman.

13. (1) The Tribunal shall act according to equity, good conscience and mnep~ao. which Tribunal is

the substantial merits of the case without regard to technicalities and legal torn+

forms and, subject to subsection (2) and the provisions of any other Act, is dr ir~anr

not bound by the rules of evidence, hut may inform itself on any matter in

such manner as it thinks fit.

(2) The Tribunal is bound by the rules of evidence in-

(a) disciplinary proceedings;

and

(6) proceedings related to a contempt of the Tribunal.

DIVISION 111-PROCEDURES AND POWERS OF THE TRIBUNAL

14. (1) The Tribunal shall give a party to proceedings reasonable notice w,,, bcfan the

of the time and place at which it intends to hear those proceedings, and Tnbunal

shall afford any such person a reasonable opportunity to call or give evi-

dence, to examine or cross-examine witnesses, and to make submissions to

the Tribunal.

(2) If a person to whom notice has been given pursuant to subsection (1) does not attend at the time and place fixed by the notice, the Tribunal

may hear the proceedings in that person's absence.

(3) The Commissioner may appear personally in proceedings before the Tribunal or may be represented at such proceedings by counsel or an officer of the Public Service.

(4) A party to proceedings before the Tribunal (not being the Commis- sioner) is entitled to appear-

(a) personally or by counsel;

(b) by leave of the Tribunal-by some other representative.

15. ( 1 ) The Tribunal may-	porn	of the
Tribunal.

(a) by summons signed on behalf of the Tribunal by a registrar,

require the attendance before the Tribunal of any person;

6 Commercial Tribunal Act 1982

(b) by summons signed on behalf of the Tribunal by a registrar, require the production of any books, papers or documents;

(c) inspect any books, papers or documents produced before it, and retain them for such reasonable period as it thinks fit, and make copies of any of them, or of any of their contents;

(d) require any person to make an oath or affirmation to answer truthfully all questions put by members of the Tribunal, or a person appearing before the Tribunal, relating to a matter before the Tribunal;

(e) require any person appearing before the Tribunal, including a person whose conduct is subject to an inquiry, (whether sum- moned to appear or not) to answer any relevant questions put by any member of the Tribunal, or by any other person appear- ing before the Tribunal.

(4) A person is not obliged to answer a question, or to produce books, papers or documents, under this section if-

(a) the answer to the question or the contents of the books, papers

or documents would tend to incriminate that person of an

offence;

(b) by answering the question or producing the books, papers or

documents that person would commit a breach of legal profes-

sional privilege.

(5) In the course of any proceedings, the Tribunal may-

(a) receive in evidence any transcript of evidence in proceedings

before a court, tribunal or board and draw any conclusions of

fact from the evidence that it considers proper;

(b) adopt, as in its discretion it considers proper, any findings, deci- sion, or judgment of a court, tribunal or board that may be

relevant to the proceedings.

(6) Where a person takes a proceeding before the Tribunal frivolously, vexatiously or for an improper purpose, the Tribunal may-

(a) dismiss or annul the proceeding;

and

(6) order the party by whom it was taken to pay to any other party compensation for any consequent embarassment, inconveni- ence and expense that the other party has suffered or incurred.

w e r s far	fin*	16. The Tribunal may make such orders for costs as the Tribunal considers' just and reasonable.
or CO*%

Commercial Tribunal Act, 1982 7

17. Where a party to any proceedings before the Tribunal has, within R	,,,,,for
dmirionr or

seven days after the Tribunal has made a decision or order in those pro- ~tib,.,~.

ceedings, requested the Tribunal to give reasons in writing for the decision

or order, the Tribunal shall give reasons in writing for its decision or order.

18. (1) Where an order has been made by the Tribunal, and the Tri- o,t.,~r aide, may be

bunal, or the Supreme Court, is satisfied that an appeal against the order suspended

has been instituted, it may suspend the operation of the order until the

determination of the appeal.

(2) Where the Tribunal has suspended the operation of an order under subsection (I), the Tribunal may terminate the suspension, and where the Supreme Court has suspended the operation of an order under subsection

(I), the Supreme Court may terminate the suspension.

DIVISION IV-CASES STATED, APPEALS AND REVIEWS

19. The Tribunal may state a case upon any question of law for the carcnatd.

opinion of the Supreme Court.

20. (1) A party to proceedings before the Tribunal who is dissatisfied A , , ,

with a decision or order of the Tribunal in those proceedings is, subject to this section, entitled to appeal to the Supreme Court against the decision or order.

(2) The appeal lies as of right if it involves a question of law or arises from proceedings related to a contempt of the Tribunal but otherwise lies only by leave of the Tribunal or the Supreme Court.

(3) The appeal or application for leave to appeal must be instituted or made within one month of the making of the decision or order appealed against, but the Supreme Court or the Tribunal may, if it is satisfied that it is just and reasonable in the circumstances to do so, dispense with the requirement that the appeal or the application should be instituted or made within that period.

(4) The Supreme Court may, on the hearing of the appeal, exercise one or more of the following powers, according to the nature of the case:

(a) affirm, vary or quash the decision or order appealed against, or

substitute, and make in addition, any decision or order that

should have been made in the first instance;

(b)	remit the subject matter of the appeal to the Tribunal for further hearing or consideration or for rehearing;
(c)	make any further or other order as to costs or any other matter

that the case requires.

(5) The rights of appeal conferred by this section are subject to any limitations and exclusions contained in the relevant Acts.

21. For the purposes of a case stated or an appeal under this Division, hd., ,, t,,

to an@< Judge of

the Supreme Court shall be constituted of a single Judge but this subsection s Y P ~ ~ S

coon

does not derogate from the power of such a Judge to reserve an appeal or

question for hearing and determination by the Full Court.

21a. (1) Where a registrar makes a decision or order in the exercise of ccn~" diw.io..

of the T"hunat

the jurisdiction of the Tribunal, a party to the proceedings may, within one =>.t.ja m

rrvte\YI

8 CommercialTribunal Act, 1982

month of the date of the decision or order, apply to the Tribunal for a

review of the decision or order.

(2) The Tribunal may, on reviewing a decision or order under this section, confirm, vary or set aside the decision or order.

PART I11

MISCELLANEOUS

n c p i ~, ~ ~	Mr.	22. (1) The Commercial Registrar shall keep registers of all persons licensed or registered under the relevant Acts.
(2) Any person may on payment of the prescribed fee (if any) inspect any of the registers kept under this section.
(3) A certificate under the hand of a registrar certifying that on a date, .or between dates, specified in the certificate a person was or was not licensed or registered under a particular Act (being one of the relevant Acts) shall be accepted in legal proceedings, in the absence of proof to the contrary, as proof of the matter so certified.
(4) An apparently genuine document purporting to be a certificate under subsection (3) shall be accepted in legal proceedings, in the absence of proof to the contrary, as such a certificate.

Power to cure	23. (1) Where in proceedings before the Tribunal or an appeal from the Tribunal to the Supreme Court it appears to the Tribunal or the Court-
iwularitim.

(a) that some irregularity has occurred affecting the proceedings or any matter to which the proceedings relate;

and

(b) that it would conduce to the expeditious resolution of the ques- tions of substance at issue between the parties if the powers conferred by this section were exercised,

the Tribunal or the Court may cure the irregularity by ordering that, subject to the fulfilment of such conditions as may be stipulated by the Tribunal or the Court, the requirements of this Act, or of any other Act or law, be dispensed with to the extent necessary for the purpose.

(2) An order under this section does not affect the rights or liabilities of persons who are not parties to the proceedings.

~ ~ ~ r

24. An apparently genuine document purporting to be a copy of a shall be accepted in any legal proceedings, in the absence of proof to the contrary, as a true copy of a judgment or order of the Tribunal. ~ r

judemsna and ~ ~ d ~ judgment or order of the Tribunal and to be certified as such by a registrar ~ ~ f ~ h ~

Tribunal.

OT 25. (1) Where a judgment or order for payment of a pecuniary sum is given or made by the Tribunal, a registrar shall, upon application by a party to the proceedings in which the judgment or order was given, or a person claiming through or under such a party, issue a certified copy of the judgment or order.

(2) Where-

(a) a certified copy of a judgment or order is lodged with the clerk

of a local court:

Commercial Tribunal Act, 1982 9

and

(b) the fee (if any) payable upon lodgment is paid to the clerk,

the clerk shall register the judgment or order and proceedings may then be taken upon it as if it were a judgment or order of the court in which it is registered.

(3) A judgment or order is registrable under this section in-

(a) the Local Court of Adelaide;

(b) some other local court, being the local court nearest to the place at which the person who is liable upon the judgment or order resides.

25a. A person who---	cantempt	or the
T"buna1.

(a) fails without reasonable excuse to comply with a summons issued

to attend, or to produce books, papers or documents, before

the Tribunal;

(b) misbehaves before the Tribunal, wilfully insults the Tribunal or one or more of the members in the exercise of the member's official duties, or interrupts the proceedings of the Tribunal;

(c) refuses to be sworn or to affirm, or to answer a relevant question

when required to do so by the Tribunal,

(d) fails to comply with a judgment or order of the Tribunal (not

being a judgment or order for the payment of a pecuniary

sum),

is guilty of a contempt of the Tribunal.

25b. (1) A contempt of the Tribunal- of thc Tnbunal HW mnlcmpu

(a) may be prosecuted as a summary offence (punishable by a fine "'*'"'"'

not exceeding $10 000);

(b) may be dealt with by the Tribunal under this section.

(2) The Tribunal may punish a contempt by a fine not exceeding

$10 000.

(3) A fine imposed under this section may be recovered as a debt due to the Crown.

26. (1) The Governor may make such regulations as are contemplated Regularions

by this Act or any other Act confemng jurisdiction on the Tribunal, or as are necessary or expedient for the purposes of this Act or any other Act confemng jurisdiction on the Tribunal.

(2) Without limiting the generality of subsection (I), the regulations

may-

(a) provide for the constitution of panels from which members of the Tribunal are to be drawn and require consultation with specified bodies in relation to the membership of such panels;

10   Commercial Tribunal Act, 1982

(b) prescribe matters relevant to the practice and procedure of the

Tribunal;

(c) provide for the settlement or attempted settlement, by concilia-

tion, of disputes between parties to proceedings before the

Tribunal;

(d) provide for the enforcement of judgments and orders of the Tribunal (other than judgments or orders for payment of pecuniary sums);

(e) prescribe information to be included in the registers to be kept

under this Act;

fl assign functions to the registrars and reguiate the manner in which

they are to be camed out;

.(g) prescribe and provide for the payment of fees;

and

(1,) prescribe penalties (to be recoverable summarily) not exceeding

$500 for contravention of, or non-compliance with, any regu-

lation.

SCHEDULE

SPECIAL PROVISIONS RELATING TO CONSTITUTION

OF TRIBUNAL

COMMERCIAL TENANCIES

1. In this schedule-

"commercial tenancy agreement" means a commercial tenancy agree- ment within the meaning of Part IV of the Landlord and Tenant Act, 1936.

2. (1) Subject to this clause, the Tribunal shall, for the purpose of exercising its jurisdiction under Part IV of the Landlord and Tenant Act, 1936, be constituted of-

(a) the Chairman or a Deputy Chairman of the Tribunal;

(b) a member of the appropriate panel constituted under clause 3(a) and selected from time to time by the Chairman or a Deputy Chairman of the Tribunal to be a member of the Tribunal;

and

(c) a member of the appropriate panel constituted under clause 3(b)

and selected from time to time by the Chairman or Deputy

Chairman of the Tribunal to be a member of the Tribunal.

(2) The membership of the Tribunal may if the Chairman or a Deputy Chairman, in a particular case, so determines include one or more members of a panel constituted under section 8(3).

(3) Where the regulations so provide, the Tribunal may be constituted solely of the Chairman or a Deputy Chairman.

3. (1) The Governor may, for the purposes of clause 2-

(a) establish a panel consisting of members who, in the opinion of

the Governor, are suitable persons to represent the interests of

landlords under commercial tenancy agreements;

Commercial Tribunal Act. 1982 1 1

(b) establish a panel consisting of members who, in the opinion of the Governor, are suitable persons to represent the interests of tenants under commercial tenancy agreements.

(2) The provisions of Part I1 shall, subject to this schedule, apply in relation to members of the panels established under this clause as if they were members of panels established under that Part.