Commercial Tribunal Legislation Amendment Act 1995 (NSW)
New South Wales
Commercial Tribunal Legislation
Amendment Act 1995 No 40
Contents
Page
1 Name of Act 2 2 Commencement 2 3 Amendment of Commercial Tribunal Act 1984 No 98 2 4 Amendment of Credit (Administration) Act 1984 No 95 2 5 Amendment of Building Services Corporation Act 1989 No 147 2 Schedules
1 Amendment of Commercial Tribunal Act 1984 3 2 Amendment of Credit (Administration) Act 1984 13 3 Amendment of Building Services Corporation Act 1989 14
New South Wales
Commercial Tribunal Legislation
Amendment Act 1995 No 40
Act No 40, 1995
An Act to amend the Commercial Tribunal Act 1984 and certain other Acts with respect to the composition and the practice and procedure of the Commercial Tribunal and for other purposes. [Assented to 26 October 1995]
| Section 1 | Commercial Tribunal Legislation Amendment Act 1995 No 40 |
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Commercial Tribunal Legislation Amendment Act
1995.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Commercial Tribunal Act 1984 No 98
The Commercial Tribunal Act 1984 is amended as set out in
Schedule 1.
4 Amendment of Credit (Administration) Act 1984 No 95
The Credit (Administration) Act 1984 is amended as set out in
Schedule 2.
Amendment of Building Services Corporation Act 1989 No 147
The Building Services Corporation Act 1989 is amended as set out in Schedule 3.
Commercial Tribunal Legislation Amendment Act 1995 No 40
Amendment of Commercial Tribunal Act 1984 Schedule 1 Schedule 1 Amendment of Commercial Tribunal
Act 1984
(Section 3 )
[1] Section 4 Definitions
Omit the definition of Deputy Registrar.
[2] Section 4A
Insert after section 4:
4A Notes in text
Notes in the text of this Act are explanatory notes only and do not form part of this Act.
[3] Section 7 Part-time members
Omit section 7 (1). Insert instead:
(1) The part-time members are to comprise:
(a) persons who, in the Minister’s opinion, have knowledge of, or experience in conducting, the business or other activity that is regulated by the Act in relation to which the persons are appointed, and (b) persons who, in the Minister’s opinion, have knowledge of, or experience in dealing with, consumer issues concerning the business or other activity that is regulated by the Act in relation to which the persons are appointed.
[4] Section 8 Immunity of members and Registrar
Omit “and Deputy Registrar”.
Commercial Tribunal Legislation Amendment Act 1995 No 40
| Schedule 1 | Amendment of Commercial Tribunal Act 1984 |
[5] Section 10
Omit the section. Insert instead:
10 Effect of the Public Sector Management Act 1988
Part 2 of the Public Sector Management Act 1988 does not apply to or in respect of the appointment of a member.
Section 12 Vacation of office of member
Section 12 (1) (f)
Omit section 12 (1) (f). Insert instead:
(f) becomes a mentally incapacitated person,
Section 12 (1) (i)
Omit “or retired from office under subsection (3)”.
Section 12 (3)
Omit section 12 (3).
| Section 17 |
| Omit the section. Insert instead: |
17 Registrar and staff of Tribunal
(1)
A Registrar and such other staff as are necessary to enable the Tribunal to exercise its functions are to be employed under Part 2 of the Public Sector Management Act 1988.
Commercial Tribunal Legislation Amendment Act 1995 No 40
Amendment of Commercial Tribunal Act 1984 Schedule 1
(2)
The Registrar has the functions conferred or imposed on the Registrar by or under this or any other Act or by the T r i b u n a l .
(3)
During the absence or a vacancy in the office of the Registrar, a member of staff holding office as Deputy Registrar or, if there is no such office holder, a member of staff duly appointed to act as Registrar has the functions of the Registrar and is taken to be the Registrar.
Section 18 Jurisdiction and functions of Tribunal
Insert after section 18 (l):
Note. The following Acts confer jurisdiction on the Tribunal: Building Services Corporation Act 1989
Credit Act 1984
Credit (Administration) Act 1984
Credit (Finance Brokers) Act 1984
Credit (Home Finance Contracts) Act 1984
Fair Trading Act 1987
Motor Dealers Act 1974
Registration of Interests in Goods Act 1986
Retail Leases Act 1994
Trade Measurement Act 1989
Trade Measurement Administration Act 1989Travel Agents Act 1986
Section 19 (2) Section 19 Proceedings before Tribunal Omit section 19 (2). Insert instead:
(2) The constitution of the Tribunal for hearings is to be
determined by the Chairman.(2A) The Registrar is, subject to any directions of the Chairman, to arrange and determine the times and places at which hearings of the Tribunal are to be held.
Commercial Tribunal Legislation Amendment Act 1995 No 40
| Schedule 1 | Amendment of Commercial Tribunal Act 1984 |
Section 19 (3) (a)
Insert “or” at the end of section 19 (3) (a).
| Insert after section 19 (3) (b): |
| Section 19 (3) (b1) |
(b1) where the proceedings relate to:
a question as to the jurisdiction of the
Tribunal, or
an application to amend an application or
other document relating to proceedings
before the Tribunal, or
an application to set aside a summons
issued under section 25, or
an application to strike out proceedingsbefore the Tribunal, or
an application under section 86A of the Credit Act 1984, or
Section 19 (3)
Insert at the end of section 19 (3):
Note. Section 86A of the Credit Act 1984 empowers the Tribunal to vary civil penalties imposed on credit providers for minor errors found not to disadvantage the debtors concerned in any significant respect.
Section 19 (4)
Omit section 19 (4). Insert instead:
(4)
The Tribunal may deal with 2 or more matters together if the Chairman is satisfied that the parties concerned will not be prejudicially affected and the Tribunal is duly constituted in respect of all of those matters.
Commercial Tribunal Legislation Amendment Act 1995 No 40
Amendment of Commercial Tribunal Act 1984 Schedule 1 Section 19 (5)
Omit ‘‘subsections (3) and (6)”. Insert instead “subsection (3)”.
Section 19 (6)
Omit section 19 (6).
Section 19 (7)
Omit “sitting” wherever occurring. Insert instead “hearing”.
Section 19A Insert after section 19: 19A Variation in constitution of Tribunal during proceedings If during any proceedings one of the members constituting the Tribunal ceases to hold office or for any reason becomes unable to continue with the proceedings, the Chairman may replace the member with another member who is similarly qualified to the member.
parties or without their consent. However, if the parties The member may be replaced with the consent of the do not consent, the member may be replaced only if:
(a) the Tribunal has not, before the member ceased to hold office or was unable to continue with the proceedings, received evidence essential for the determination of the proceedings, and (b) the Chairman is satisfied that failure to replace the member would delay the determination of the proceedings and that the delay would impose additional costs on the parties, and (c) the Chairman is otherwise satisfied that the interests of the parties would not be detrimentally affected by the replacement.
Commercial Tribunal Legislation Amendment Act 1995 No 40
| Schedule 1 | Amendment of Commercial Tribunal Act 1984 |
If during any proceedings one of the members constituting the Tribunal (other than the person presiding) ceases to hold office or for any reason becomes unable to continue with the proceedings, the proceedings may be continued before the remaining 2 members of the Tribunal, but only with the consent of the parties. If the remaining 2 members of the Tribunal are equally divided on any matter, the decision of the person presiding prevails.
A consent under this section is irrevocable.
pronouncement of the decision is different from the constitution of the Tribunal at the time of the A decision of the Tribunal is not invalid only because the constitution of the Tribunal at the time the decision was
made.
Section 21 Parties
Omit “or entered up” wherever occurring.
Section 24 Evidence before Tribunal
Omit section 24 (3).
| Omit section 25 (1). Insert instead: |
| Section 25 Summons and examination of witnesses |
(1)
If, in relation to a hearing before the Tribunal, the Chairman or a Deputy Chairman so directs or a party so requests, the Registrar is to issue a summons requiring a person named in the summons to attend the hearing and at the time and place specified in the summons:
(a) to give evidence, or (b)
to produce any record specified in the summons that is in the person’s possession or control, or
(c) to do both of those things. (1A)
A requirement under this section to produce a record is taken to be complied with if the record is produced to the Registrar before the hearing concerned.
Commercial Tribunal Legislation Amendment Act 1995 No 40
Amendment of Commercial Tribunal Act 1984 Schedule 1 Section 28 Assistance to Tribunal
Omit “employ”. Insert instead “‘appoint”.
Section 28
Omit “employed”. Insert instead “appointed”.
Section 31 Dismissal of frivolous etc proceedings
Omit section 31 (1). Insert instead:
(1) The Tribunal may dismiss proceedings before it if
satisfied that:
(a)
the proceedings are frivolous, vexatious, misconceived or lacking in substance, or
(b)
it does not have jurisdiction to hear and determine the proceedings, or
(c)
the proceedings are not being actively prosecuted, or
(d)
for any other reason the proceedings should not be entertained.
Section 34 Reasons for decision of Tribunal
Omit “14” from section 34 (2). Insert instead “28”.
Section 34 (3) Insert after section 34 (2):
(3) If
(a)
an appeal lies to the Supreme Court against an order or decision of the Tribunal, and
(b)
the period for lodging such an appeal is limited to a specified period after the order or decision is made, and
(c)
a notice is served under subsection (1) requesting the Tribunal to state its reasons for the order or decision,
Commercial Tribunal Legislation Amendment Act 1995 No 40
| Schedule 1 | Amendment of Commercial Tribunal Act 1984 |
the period for lodging the appeal commences on the date those reasons are notified to the party who served the notice.
Schedule 1 Transitional provisions
Renumber clause 1 as clause 1A.
Schedule 1 clause 1A (as renumbered), Omit “Schedule”. Insert instead “Part”.
| Schedule 1, Part 1 Insert before clause 1A (as renumbered): | ||
|
1 Regulations
(1)
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:
• this Act, •
the Commercial Tribunal Legislation Amendment Act 1995.
(2)
Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
(3)
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b)
to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Commercial Tribunal Legislation Amendment Act 1995 No 40
Amendment of Commercial Tribunal Act 1984 Schedule l Part 2 Provisions Consequent on Enactment o f
this Act
[31] Schedule 1, Part 3
Insert at the end of the Schedule:
Part 3 Provisions Consequent on Enactment
of Commercial Tribunal Legislation
Amendment Act 19954 Continuity of appointment of part-time members of the
Tribunal
(1)
A person holding office as a part-time member of the Tribunal referred to in paragraph (a) or (b) of section 7 (1) (as in force immediately before the commencement of Schedule 1 [3] to the Commercial Tribunal Legislation Amendment Act 1995) is taken to satisfy the requirements of that paragraph (as in force after that commencement).
(2)
Any such person does not cease to hold office only because of the amendments made to section 7 by that Schedule.
5 Continuity of employment of Registrar and staff of the
Tribunal
The employment of the Registrar, Deputy Registrar (if any) or other staff of the Tribunal is not affected by the amendment made to section 17 by Schedule 1 [9] to the Commercial Tribunal Legislation Amendment Act 1995.
6 Pending proceedings of Tribunal
(1)
The amendments made by the following provisions of the Commercial Tribunal Legislation Amendment Act 1995 do not affect proceedings pending on the commencement of those amendments:
(a) Schedule 1 [11] and [[15]–[18], (b) Schedule 2.
Commercial Tribunal Legislation Amendment Act 1995 No 40
| Schedule 1 | Amendment of Commercial Tribunal Act 1984 | |
|
(a) Schedule 1 [13], (b) Schedule 1 [19],
(c) Schedule 1 [21] and [22], (d) Schedule 1 [25], (e) Schedule 1 [27].
(3)
The amendment made by Schedule 3 to the Commercial Tribunal Legislation Amendment Act 1995 extends to appeals against decisions made before the commencement of the amendment.
7 Reasons for decision of Tribunal
The amendment made by Schedule 1 [26] to the Commercial Tribunal Legislation Amendment Act 1995 applies only to notices served on the Registrar under section 34 (1) after the commencement of that amendment.
Commercial Tribunal Legislation Amendment Act 1995 No 40
Amendment of Credit (Administration) Act 1984 Schedule 2 Schedule 2 Amendment of Credit (Administration)
Act 1984
(Section 4)
[1] Section 12 Grant or refusal of licence
Omit section 12 (6).
[2] Section 23 Disciplinary action against licensee
Omit section 23 (15).
[3] Section 25 Death of licensee
Omit section 25 (6).
[4] Section 57 Secrecy
Omit “employed” from section 57 (1) (h).
Insert instead “appointed”.Commercial Tribunal Legislation Amendment Act 1995 No 40
| Schedule 3 | Amendment of Building Services Corporation Act 1989 |
| Schedule 3 | Amendment of Building Services Corporation Act 1989 |
(Section 5)
Section 86 Time limits
Insert after section 86 (2):
(3)
Despite subsection (l), an appeal may, with the leave of the Commercial Tribunal, be lodged with the registrar of the Tribunal after the end of the period referred to in that subsection, but only if:
(a)
within 30 days after the end of that period, an application is made to the Tribunal for leave to lodge the appeal out of time, and
(b) the Tribunal grants that leave. (4) The Commercial Tribunal must grant leave applied for
under this section if satisfied that:
(a)
there is a sufficient explanation as to why the appeal was not lodged in time, and
(b)
the other persons concerned in the matter would not be prejudicially affected if leave were granted.
[Minister’s second reading speech made in—
Legislative Assembly on 20 September 1995
Legislative Council on 19 October 1995]
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