Custom Credit Corporation Limited (in Liquidation) v Commercial Tribunal of New South Wales
Case
•
[1999] NSWSC 1021
•13 October 1999
No judgment structure available for this case.
Reported Decision: [2000] ASC 155-1041
New South Wales
Supreme Court
CITATION: CUSTOM CREDIT CORPORATION LIMITED (IN LIQUIDATION) v. COMMERCIAL TRIBUNAL OF NEW SOUTH WALES & ORS [1999] NSWSC 1021 revised - 26/06/2000 CURRENT JURISDICTION: Administrative Law FILE NUMBER(S): No. 30005 of 1997 HEARING DATE(S): 18 and 19 November 1998 JUDGMENT DATE:
13 October 1999PARTIES :
CUSTOM CREDIT CORPORATION LIMITED (IN LIQUIDATION)
v. COMMERCIAL TRIBUNAL OF NEW SOUTH WALES & ORSJUDGMENT OF: Greg James J at 1
LOWER COURT JURISDICTION: Commercial Tribunal of NSW LOWER COURT FILE NUMBER(S) : 272/92 LOWER COURT JUDICIAL OFFICER: G.M. Hoeben, Deputy Chairman
COUNSEL : Plaintiff: B. Coles, QC./D. Brogan
First Deft: No appearance
Second Deft: R. Beech-JonesSOLICITORS: Plaintiff: Blake Dawson Waldron
First Deft: No appearance
Second Deft: I.V. KnightCATCHWORDS: Credit Act - effect of contraventions - Commercial Tribunal - role and function when relieving from statutory penalty for contraventions - ambit of matters for consideration - nature of appeal - limited to identifiable errors of law material to conclusion - matters relevant to penalty - necessity to fix penalty for each kind of contravention. ACTS CITED: Credit Act 1984
Commercial Tribunal Act 1984
Supreme Court Act 1970
Criminal Appeal Act 1912CASES CITED: ANZ Banking Group Limited v. Director-General Department of Fair Trading & Ors [1999] NSWCA 278;
Canham & Ors v. Australian Guarantee Corporation Limited & Anor (1992-93) 31 NSWLR 246;
Lyall Offe v. The Residential Tenancies Tribunal of New South Wales & Ors (Court of Appeal, unreported 29 October 1997);
Custom Credit Corporation v. Gray (1992) 1 VR 540;
Attorney-General (Northern Territory) v. Minister for Aboriginal Affairs (1989) 23 FCR 536;
Regina v. Henry, Barber, Tran, Silver, Tsoukatos, Kyroglou & Jenkins [1999] NSWCCA 111;
House v. The King (1936) 55 CLR 499;
Regina v. Geddes (1936) 36 SR(NSW) 554;
Lowe v. The Queen (1984) 154 CLR 606;
Esanda Finance Corporation Limited v. Murphy & Anor (1989) ASC 55-703;
Australian Societies Group Financial Services (NSW) Limited v. Bogan & Anor (1989) ASC 55-938;
Canham & Ors v. Australian Guarantee Corporation Limtied & Ors, Pearce & Anor v. Australian Guarantee Corporation Limited & Ors, Porter v. Australian Guarantee Corporation Limited & Anor (1990) ASC 55-984;
Custom Credit Corporation Limited v. Commercial Tribunal of New South Wales & Ors (1993) 32 NSWLR 489;
Craig v. South Australia (1994-95) 184 CLR 163;
Anisminic Limited v. Foreign Compensation Commission [1969] 2 AC 147;
Lovell v. Lovell (1950) 81 CLR 513;
Evans v. Bartlam [1937] AC 473;
Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321;
Minister for Immigration & Ethnic Affairs v. Teo (1995) 57 FCR 194;
Minister for Aboriginal Affairs v. Peko Wallsend Limited (1986-87) 162 CLR 24;
Walter Pugh v. Commissioner of Consumer Affairs (1988) 13 NSWLR 420;
Royall v. The Queen (1991) 172 CLR 378;
March v. E. & M.H. Stramere Pty. Limited (1991) 171 CLR 506;DECISION: Appeal upheld in part
IN THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISIONNo. 30005 of 1997
GREG JAMES, J.
WEDNESDAY 13 OCTOBER 1999
CUSTOM CREDIT CORPORATION LIMITED (IN LIQUIDATION) v. COMMERCIAL TRIBUNAL OF NEW SOUTH WALES & ORSJUDGMENT
The proceedings
1 HIS HONOUR: The plaintiff, by summons under Part 51A Rule 4 of the Supreme Court Rules, in the Administrative Division of this court, sought, inter alia, that certain orders made by the first defendant be set aside and that it be ordered that the third to 527th defendants (the debtors), whose names are listed in a schedule to the summons, be liable to pay the whole of the credit charges under loan contracts with the plaintiff. 2 Alternatively it was sought, that the debtors be declared liable to pay the whole of the credit charges but that the plaintiff, pursuant to s.86B of the Credit Act 1984, pay into the financial counselling trust fund maintained under that Act, an amount deemed by the court to be appropriate. 3 Ancillary and consequential orders are also sought. 4 The application is brought by way of appeal from a decision of the first defendant in respect of an application by the plaintiff, a credit provider under the Credit Act, for relief to the first defendant under ss.85 and 86 of that Act from the effect of s.42, by reason of which, in consequence of certain contraventions of the Act, the plaintiff was deprived of its credit charges on loan contracts with the debtors regulated under that Act. The tribunal had made an order having the effect of restoring some 82% of the credit charges and requiring the plaintiff to refund or credit the 18% balance of their individual credit charge to each debtor. The plaintiff was ordered to pay the costs.
5 The scheme of the Act and the kind of application made here are conveniently described by Cole, AJA. in ANZ Banking Group Limited v. Director-General Department of Fair Trading & Ors [1999] NSWCA 278. (His Honour's references to s.86A are not of immediate reference):-
The statutory scheme
6 Other relevant provisions of the Act need to be referred to. Section 31 provides as follows:-
"A regulated loan contract is one relating to a loan of $20,000 or less [Credit Act 1984, s.30]. Section 85(1) provides:-
'85(1) Where, by reason of a contravention of or a failure to comply with this Act … by a credit provider, a debtor is not liable to pay to the credit provider under a regulated contract an amount that, but for the contravention or failure, he would have been liable to pay under the contract, the credit provider may apply to the Tribunal for an order increasing the liability of the debtor to the credit provider.'
Section 42 of the Credit Act provides, relevantly:-
'42(1) Subject to s.85, where:-
…
(b) a loan contract is not in writing signed by the debtor or is not in accordance with s.36, …
the debtor is not liable to pay to the credit provider the credit charge under the contract.'
Thus, if there was a contravention or failure to comply with s.36 of the Act, the Bank was deprived of its credit charge, and to avoid that consequence sought relief pursuant to ss.85, 86 and 86A.
Section 85 addresses the circumstance where a credit provider seeks relief against a single debtor from the discharge conferred by s.42 of the obligation to pay the credit charge. Section 86 addresses the circumstance where the contravention or failure to comply affects two or more regulated contracts. Where application is made pursuant to s.86, the Tribunal:-
'(a) may make a determination under s.86 in relation to one or more specified regulated contracts, and
(b) may make a determination under s.85 in relation to all regulated contracts entered into by the credit provider during a specified period, and
(c) may make a determination under s.85 in relation to all regulated contracts of a specified class entered into by the credit provider during a specified period (for example, all regulated contracts entered into during a specified period which are affected by a specified contravention or failure).'
Where an application is made under s.86, affected debtors need not be identified in the application unless the Tribunal requires such identification [s.86(2)]. The Tribunal may authorise notice of the application to be given by newspaper advertisement which, on compliance with certain provision, is regarded as effective notice to each debtor [s.86(3), (4) and (5)].
…
It is apparent that the combined effect of s.36, s.42 and ss.85, 86 and 86A(2)(b) is that any relief from the consequence of s.42 for a contravention or failure to comply with the provisions of s.36 granted pursuant to s.85 in consequence of the application of ss.86 and 86A relate only to the contravention or failure to comply which is the subject of the application by the credit provider. The reason why that is so is also plain: there may be one or more known contraventions or failures to comply which might be the subject of an application by the credit provider for relief, but there may exist, unknown at that time, other contraventions or failures to comply which, unexcused, may result in consequence of s.42 in the debtor being relieved of the obligation to pay the credit charge. That Act thus gives to the credit provider the facility to make multiple applications at various times in respect of known and established contraventions or failures to comply. The Act does not impose on the credit provider the obligation to make an application for relief pursuant to ss.85, 86 and 86A, nor does it impose an obligation to bring an application in respect of all contraventions or failures to comply known at the time of bringing a particular application. The Act does not, at least explicitly, address the circumstance of the credit provider being aware of two or more contraventions or failures to comply yet bringing an application only in respect of one. Presumably, that is because the credit provider is not obliged to bring any application at all in respect of a known contravention or failure to comply. The credit provider is given the option of not seeking relief. It could accept that the credit charge is not payable, but if it wishes to recover the credit charge, an application pursuant to ss.85, 86 and 86A would be necessary.
The debtor is placed in an invidious situation in reality. If the debtor becomes aware of a contravention or failure to comply with, for example, s.36, he has no right to bring an application for a declaration to that effect. Presumably, his course of action is either to continue to pay instalments as required by the loan agreement until all payments have been made excluding that which relates to the amount of the credit charge, and then decline to pay that sum. If sued, he could plead s.42 as a defence. Bearing in mind that the sum involved is less than $20,000, the reality of a debtor becoming so aware and adopting the course I have suggested, must be remote. Indeed, the prospect of a debtor in truth becoming aware of any application for relief, where application is made pursuant to s.86 and notification being by newspaper advertisement, must be equally remote. Be that as it may, it seems clear that the intent of ss.85, 86 and 86A is to confer upon the Tribunal, after actual notice to the debtor, deemed notice to the debtor, or notice to the Director General of the Department of Fair Trading (formerly the Commissioner), who intervenes in the applications in the public interest pursuant to s.43(1) of the Credit (Administration) Act 1984, mechanism whereby a credit provider who has departed from or contravened certain provisions of the Act may seek relief from the consequences of those departures which result from the operation of s.42.
The subject application to the Tribunal did not admit a contravention or failure to comply with the Credit Act, but rather posed for determination the question whether certain circumstances constituted a contravention or failure to comply with the Act, thus conferring jurisdiction on the Tribunal to consider the matter of relief under ss.85, 86 or 86A."
7 Section 32 requires that a credit provider or the agent of a credit provider authorised to receive an offer to enter into a loan contract shall not give to a person a document for signature by that person as an offer in writing to enter into a loan contract unless it includes the relevant prescribed notice and in addition, before the person signs the document, there is given to that person a true copy of the document certified by the provider or agent. By subsection (5), where a person signs a document and thereby offers to enter into a loan contract, any subsequent alteration of or addition to the terms and conditions of the contract has no force or effect unless, after the alteration or addition has been made, the person has, opposite the alteration or addition, signed or initialled the margin of the original document or the copy. Subsection (6) expressly prohibits the provider or the provider's agent from altering or adding to the terms and conditions specified in the document with intent to deceive. The section defines "offer in writing" by subsection (7) as including a document that, if signed by or on behalf of the credit provider and the debtor, would be a loan contract. 8 Section 33 requires a copy of the accepted offer to be provided to the debtor and by s.34, in addition, the prescribed statement is to be provided both within 14 days, subject to certain limited exceptions. 9 Section 36 provides for the contents of the loan contract. It requires that such a contract shall include the date on which the offer was signed by the debtor; the amount financed; the credit charge; the total of the credit charged and the amount finances; the annual percentage rate; the person to whom and the place at which payments are to be made; a statement as to whether payments are to be made by instalments, and if so, a statement of such of the following as are known or can be calculated at the relevant date (s.36(1)(g)):-
"(1) Subject to subsection (2), a credit provider shall not enter into a credit sale contract or a loan contract that is not in writing signed by the debtor.
Penalty: 10 penalty units.
(2) Subsection (1) is not contravened if a credit sale contract or a loan contract is made by the acceptance of an offer in writing signed by the debtor to the credit provider to enter into the contract."
10 By subsection (4):-
"(i) where each instalment is the same amount, that amount;
(ii) where each instalment except the last is the same amount, that amount and the amount of the last instalment;
(iii) where neither subparagraph (i) or subparagraph (ii) applies, the amount of each instalment;
(iv) the number of instalments; and
(v) the time for the payment of each instalment or the time for the payment of the first instalment and the interval between each instalment and the subsequent instalment."
11 In addition to the Act providing for the automatic civil penalty under s.42, there is also provided, under s.43 that:-
"In this section, 'relevant date' means the date on which the loan contract is entered into or, if the loan contract is entered into by the acceptance by the credit provider of an offer made by the debtor, the date on which the offer is made."
12 Thus, failure to comply with s.31 may also attract a criminal penalty. Contracting out is both prohibited and a criminal offence, pursuant to s.157. 13 The history and philosophy of the Act and its context of the reform of Australia's credit laws are set out in the judgment of Kirby, P., with whom both Priestley and Meagher, JJA. agreed, in Canham & Ors v. Australian Guarantee Corporation Limited & Anor (1992-93) 31 NSWLR 246 at 252-254. His Honour described:-
"A credit provider shall not enter into a credit sale contract, or a loan contract, that is in writing but is otherwise not in accordance with this Division.
Penalty: 10 penalty units."
14 At 254 his Honour said:-
"… disclosure and truth in lending was the very linchpin of the new Credit Act. To discourage non-disclosure, whether deliberate or accidental, drastic consequences were provided by s.42."
15 The first defendant, the successor to the Commissioner of Consumer Affairs, pursuant to s.43 of the Credit (Administration) Act 1984, with the consent of the Minister, intervened before the Tribunal in the public interest and before me, has appeared to the summons and has submitted to such orders the court might make, save as to costs. The second defendant, the Director General, Department of Fair Trading, appropriately in the light of the decision in Lyall Offe v. The Residential Tenancies Tribunal of New South Wales & Ors (Court of Appeal, unreported 29 October 1997) in the role of contravener, appeared in opposition to the plaintiff. 16 Both before the Tribunal, in accordance with the Act, and in this court by Dunford, J., orders were made for notification to the debtors and providing for notice in lieu of service. Compliance was established by affidavits, in particular that of Stephen Tudjman sworn 16 June 1997, and also that of Edmond Bishara sworn 17 June 1997. 17 The limited response to that notification both in this court and below is also relied upon by the plaintiff in respect of such orders as should be made or should have been made, in particular in relation to the tribunal’s orders to refund, as being inappropriate.
"The ultimate theory behind the philosophy of truth in lending in our credit legislation is that disclosure of critical elements in the consumer contract will help to ensure honesty and integrity in the relationship (where one party is normally disadvantaged or even vulnerable); promote informed choices by consumers; and allow the market for financial services to operate effectively. This philosophy can be seen in the Rogerson Report, the Molomby Report, the Law reform Commission Report and in the legislation which has followed, including the Credit Act. The policy behind the philosophy must be kept in mind in approaching the application of particular provisions in the Act to particular facts. The modern approach to the interpretation of legislation is, so far as the language of the legislation permits, to ensure that to give effect to, and does not frustrate the achievement of, the apparent purposes of parliament as disclosed in the language: see generally, Kingston v. Keprose Pty. Limited (1987) 11 NSWLR 404 at 423 and cases there cited.
In Anderson v. HCF Financial Services Limited [1988] VR 251 at 255, the Victorian Full Court emphasised that the Victorian counterpart legislation to that which is here under consideration is 'primarily intended to protect borrowers [and] it should be given an interpretation beneficial to borrowers'. I agree with this approach."
The parties
18 The appeal is pursuant to s.20(5) of the Commercial Tribunal Act 1984. Section 20 relevantly provides:-
Statutory appeal provisions
19 Uninstructed by the case law, one might have considered because of the similar drafting, that subsection (5) dealt with matters akin to those to which subsection (3) refers, that is, only those identified questions which raised a matter of law determined by the chairman or deputy chairman and material to the Tribunal's decision. Without there appearing to be any detailed discussion on the difference between the effect of such a provision as that in subsection (5) and the common form provision providing for an appeal for error of law, it appears to have been assumed that this provision simply creates a similar appeal. This may not be right. But on any view, no appeal would be available under such a provision on mere matters of fact or assessment of weight in the exercise of discretion. However, I will turn to consider in detail the ambit of any appeal later.
"(1) A reference or appeal under this section shall be made in accordance with rules of the Supreme Court.
…
(3) Where, in proceedings before the Tribunal, a question arises with respect to a matter of law, the presiding Chairman or Deputy Chairman may decide the question or may refer it to the Supreme Court for decision.
(4) Where a question with respect to a matter of law is referred to the Supreme Court under subsection (3):-
(a) the Tribunal shall not make an order or decision to which the question is relevant until the Supreme Court has decided the question,
(b) upon deciding the question, the Supreme Court shall remit its decision to the Tribunal, and
(c) the Tribunal shall not proceed in a manner, or make an order or decision, that is inconsistent with the decision of the Supreme Court.
(5) Where, in proceedings before the Tribunal, the Chairman or a Deputy Chairman decides a question with respect to a matter of law, a party to the proceedings who is dissatisfied with the decision may appeal to the Supreme Court against the decision of the Chairman or Deputy Chairman.
(6) After deciding the question the subject of an appeal under subsection (5), the Supreme Court may, unless it affirms the decision of the Chairman or Deputy Chairman on the question:-
(a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or
(b) remit its decision on the question to the Tribunal and order a re-hearing of the proceedings before the Tribunal.
(7) Where a re-hearing is held pursuant to an order under subsection (6)(b), the Tribunal shall not proceed in a manner, or make an order or decision, that is inconsistent with the decision of the Supreme Court remitted to the Tribunal.
…
(10) For the purposes of this section, a reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal and a matter as to the admission or rejection of evidence."
20 By the Commercial Tribunal Act, the Tribunal is given such jurisdiction and such functions as are conferred on it by, inter alia, the Credit Act 1984, s.18(1). Its chairman or deputy chairman while presiding at a sitting of the Tribunal, has the same powers as are conferred by the District Court Act 1973 and by law, on a judge of that court when acting as a judge - s.18(3) - and subject to s.33, which deals with the filing of an order for payment of monies in an appropriate court, a judgment or order of the Tribunal has the same effect as and may be enforced in the same way as, a judgment or order of the District Court - s.18(4). 21 Proceedings before the Tribunal are regulated under s.19 and the constitution of the Tribunal for such hearings is to be determined by the chairman. There is power in certain circumstances for the chairman or a deputy chairman to sit alone, including in respect of matters where there is an application under s.86A of the Credit Act 1984. 22 By s.19(9), the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit and shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 23 Section 24(1) provides that in proceedings before the Tribunal, the Tribunal may in its discretion:-
The Tribunal
24 It may under, s.28 appoint a person to give assistance. It may, under s.32 award costs and under s.34 it is required to state its reasons for an order or decision in respect of which it has been given notice of a request to state the reasons.
"…
(a) receive in evidence the transcript of evidence in any proceedings before another court or tribunal …;
(b) adopt any finding, decision or judgment of a court or tribunal that may be relevant to the proceedings; and
(c) receive in evidence any report of the Commissioner that may be relevant …"
25 The Tribunal, after extensive hearings and submissions and considering voluminous evidentiary material, made the orders already referred to and provided a 49 page statement of reasons. The Tribunal noted that it was concerned with the second further amended application of the plaintiff filed in the Tribunal on 12 July 1996, which application sought orders and determinations in respect of "each and every such possible error or contravention applicable to the respondent’s contract". Such a "blanket" application is hardly conducive to the employment of precision and focus before the Tribunal nor to enabling a debtor satisfactorily to decide what course he or she might take in respect of any particular contraventions in respect of any particular contract. 26 The present application descended, however, to a degree of particularity and annexed a schedule of some 17 pages identifying some 289 contracts (two of which were re-financed) and eight classes of possible error, identified in the schedule by reference to columns, including a primary error, which in its legal effect meant that certain of the contracts might not have been in writing, as required by s.31 of the Act and in the facts and circumstances set out in the application. In summary, those circumstances were that the due dates for payment of the first instalment and/or for payment of any other instalment, did not appear in the document at the time the respondent signed the document, but were later inserted, and that the applicant did not, by its authorised officer, sign the memorandum of acceptance until after the due date for payment for the first instalment shown in the document. In neither case had the respondent relevantly signed a payment book as provided at the appropriate time. 27 Further and as a consequence, the contracts might not have been "in accordance with s.36" of the Credit Act because the due date did not appear in the contract at the time at which the respondent signed the contract and for non-compliance with s.36(1)(b), (d), (e), (g), (h) of that Act in the circumstances set forth in the application. 28 The Tribunal identified the relevant possible contraventions and the general nature of the loan arrangements as follows:-
The Tribunal's decision
29 The Tribunal accepted that loan contracts between the plaintiff and the debtors, who had been introduced to the plaintiff through Mr. John Leaver Throwden ("Mr. Throwden") and who had introduced the debtors to time share interests and contracts in a number of holiday resorts in New South Wales and other parts of Australia, which the loans from the plaintiff financed, did contain the primary error and the other errors particularised. It did so, not only on the basis of the extensive affidavit evidence, but also on the basis of the statement of agreed facts of some 14 pages which had been by consent provided to the Tribunal. That statement was not intended to operate to replace the primary evidence, but to summarise it and to provide for such adverse inferences to the applicant as the parties were agreed should be drawn. The Tribunal accepted that document as adequately and fairly representing the facts relevant to the application. It thus accepted that the errors had occurred and the necessary prerequisite to the obtaining of the relief sought had been established. 30 The Tribunal noted that the errors had come to light not only in New South Wales. Proceedings of a similar kind under this Australia wide legislation had been instituted by the plaintiff as a consequence of the detection of these errors in other States and the ACT as well. 31 The Tribunal therefore considered the primary error and the consequential "column two" error together in finding the basic facts and the surrounding circumstances. It held as follows:-
"The main possible contravention ('the primary error') is that the contracts were not in writing signed by the debtor. The remaining possible contraventions included misstatements in relation to undated contracts, the annual percentage rate, details of instalments, commission charges and the statement the total of the credit charged and the amount financed. The contracts related to the purchase of time share interests ('the time share agreements') in a number of New South Wales holiday resorts. The time share agreements were entered into at the same time the debtors were to have signed the contracts.
The relief sought also includes any contract which in the relevant period re-financed or was part of a series of contracts ('re-financing contracts') which re-financed a prior regulated contract of the kind referred to above where the re-financing contract failed to include a statement of the amount financed pursuant to s.36(1)(b) of the Act. There are two re-financing contracts."
32 It referred to the evidence from Mr. Buxton that the omission was due to an intended delay mechanism to ensure the first instalment date did not fall due before the debtor received the benefit of the loan monies. It was Mr. Buxton's understanding, the Tribunal found, that such a procedure developed in response to the seven day "cooling-off period" contained within the time share agreement, the benefit of which the debtor would be denied if the information was included at the time the debtor signed the contract. It noted other evidence as to the actual practices of individual officers and offices. 33 In the light of the evidence that one of the main objectives of the plaintiff's training programme was to ensure that the introducer completed both the application form and the contract, that the introducer not only needed to be present at the time of signature, but was also required to personally complete both the application form and the contract, the Tribunal accepted that the omission of the relevant details was "directly contract to the practice" which should have been followed. 34 The Tribunal held:-
"There are 289 contracts with both the primary and the column 2 errors. These errors involved debtors signing the contract before the full details of instalments were provided on the contracts. In isolated incidents the contract was also left blank or was inaccurate insofar as it related to details of the amount financed, the commission charge, the credit charge and/or the annual percentage rate.
The contracts relevantly contained, inter alia, at p.2 the following:-
'Part E Payment of Amount Financed and Credit Charge by Instalments
E.1 Amount of each instalment
(other than the final instalment) _____
E.2 Amount of final instalment _____
E.3 Number of instalments _____
E.4 The first instalment _____
E.5 Instalments are then payable on the _____
day of every month.Important
You can withdraw this offer any time before the credit provider accepts it. When the credit provider does accept it, you are bound by it.'
The primary and the column 2 errors involved omitting the first and subsequent instalment dates ('E4' and 'E5') on the contract at the time the debtor signed the contract. Sometime later these details were inserted by the applicant onto the contracts. The contracts were not resigned or redated by the debtors. It is, therefore, for these reasons that it is possible the contracts were not in writing signed by the debtors.
In respect of two contracts, those of Messrs. R.J. Johnson and M.E. O'Malley, the memorandum of acceptance on the contract ('the memorandum') was signed by the applicant only after the due date for payment of the first instalment had passed.
It was the intention of the applicant that once the contract was completed and signed by the debtor it was to constitute an offer by the debtor to borrow from the applicant. In these circumstances, the debtor was intended to be the offeror. In reality, what occurred in respect of both the primary and column 2 errors was that the contracts failed to include details of E4 and E5 when the debtor first signed the contract. Consequently when the applicant inserted these details later, it became the offeror and the debtor the offeree. At no time after the insertion of the instalment details by the applicant were the contracts resigned by the debtors.
The applicant intended that Mr. Throwden would be present when someone (other than Mr. Throwden) completed the contract. However, it would appear that soon after the Act commenced this process was undertaken either in Mr. Throwden's absence or by sales staff at Port Pacific and later by staff described by Mr. Throwden as Port Pacific 'finance officers'. It was intended that the contracts be checked by Mr. Throwden's staff and the application forms ('the applicant form/s') and the contracts would then be forwarded to the applicant.
If an application form was approved by the applicant an officer of the applicant would sign the memorandum and the loan monies would be dispatched. Sometime after the applicant signed the memorandum the applicant would forward a copy of the contract and a repayment instalment book which included, amongst other things, the instalment dates.
For at least 18 months after the introduction of the Act the majority of the contracts were processed through the applicant's Taree branch. By all accounts it was a small branch staffed by only three people. In or about 1986 or early 1987 the Taree branch changed its duties so that it became a sales office of the applicant's Newcastle branch. Sometime during 1987 the Taree branch closed. From that time onwards the contracts were processed through the Newcastle branch.
The applicant's training check lists (annexed to the Brady and Coogan affidavits) indicate that the applicant's practice required that all details, including the instalment dates were to be completed before the debtor signed the contract. If an introducer was the source of the contract, then the introducer was required to be present: see also the first Buxton affidavit. At some unknown time it was noticed that E4 and E5 details were being omitted at the time the debtor signed the contract and before the applicant signed the memorandum. When the applicant received the contract one of its officers would insert the instalment dates and then sign the memorandum. A copy of the contract together with a repayment instalment book would then be dispatched to the debtor."
35 In order to examine the issue of compliance with the statute, the Tribunal applied the analysis to similar circumstances of the Full Court of the Supreme Court of Victoria in Custom Credit Corporation v. Gray (1992) 1 VR 540. (Although that decision, it was held in ANZ Banking Group Limited v. Director General, Department of Fair Trading & Ors (supra), should not in one respect be followed in New South Wales, it is accepted by both parties that the decision still stands good in this respect.) 36 Following that approach, the Tribunal held that the original omission of the instalment dates was not cured by later insertion and that those dates being essential, the proper conclusion was that the credit provider had made a counter-offer by sending to the debtor a copy of the documentation and the instalment repayment book, both of which then included the inserted instalment details. The debtor accepted the counter-offer by conduct, in, amongst other things, paying the relevant instalments. As a consequence, the contract so made was not a contract in writing, as required by s.42. Consequently, there was no compliance with s.31(1), in that the date on which the contract or the offer to enter into the contract was signed by the debtor was not included because the contract was not as required by s.42.
"Despite the fact that the applicant undertook to have in place training and development sessions which were designed to set appropriate and acceptable standards for processing of application forms and contracts, what actually occurred was quite different."
The primary and the consequential error
"There was no dispute between the parties that the primary error did not constitute a contravention under s.36. The Tribunal concurs with this view. However, counsels (sic) for both the Director-General and the applicant are in dispute as to the significance and the extent of the consequences to which this gives rise."
37 In respect of 61 contracts, the Tribunal held that there was a failure correctly to describe the insurer and thus a consequential breach of s.36(1)(b), but concluded that such a contravention, whilst a matter to be considered in the ultimate determination, was not of itself serious. 38 In respect of six contracts, the Tribunal accepted that they contained an incorrect statement of a total amount financed and the credit charge by reason of miscalculation of the two amounts, most likely caused by human error. Thus there was a consequential breach of s.36(1)(d). 39 In this context, the Tribunal noted the consistent evidence before it that, for the most part, debtors, because of aggressive sales pressure tactics designed to gag any line of enquiry or questioning, were hardly given the opportunity to enquire into any details of their contract nor did they have time to check calculations. Thus, the Tribunal concluded that the majority of the respondents were not fully apprised of the information they were entitled to under the Act, notwithstanding the applicant's responsibility to ensure correct calculations. 40 To define the legal significance of the errors, the Tribunal adverted to the extensive case law concerning strict compliance with s.36 and the philosophy underlying the legislation designed to promote honesty and integrity in the relationship by requiring precise and accurate disclosure of critical elements in the contract. 41 In the case of one contract, the Tribunal concluded that it did not contain a statement of the annual percentage rate and thus there was a consequential breach of s.36(1)(e). Again it would appear that the omission occurred as a result of human error. The Tribunal noted the essential nature of the requirement to specify the annual percentage rate so as to provide an opportunity to a borrower to make an informed, cost-conscious loan decision. 42 The Tribunal also noted in the case of one contract the failure to include the amount of a final instalment and number of instalments, occasioning a breach of s.36(1)(g) and in the case of two contracts, the failure to disclose by or to whom a commission charge was payable thus leading to a breach of s.36(1)(h).
Further errors
43 The Tribunal noted the thrust of the submissions of both counsel in relation to the primary and column two errors. For the Director-General it was put:-
Effect of the primary error
44 The applicant submitted that in consequence of what had occurred whilst the technical legal position was in accord with the analysis in Gray (supra), nonetheless, at the time that the debtors, by their conduct, entered into the contract they individually knew all the relevant terms and that therefore with the one exception of the Allport contract, there was no actual loss or damage nor potential for this to occur. 45 The Tribunal, however, when examining the relevant circumstances and indeed when looking at the individual errors which it accepted, had adverted to the necessity for the requirements of the Act to be complied with strictly or at least to the extent so that disclosure occurred sufficiently to fully inform relevant debtors of compliance with the Act. 46 The Tribunal adverted to the observations of Kirby, P. in Canham (supra) and the view consistently taken in the case law that defects in compliance with s.36 may be the subject of applications under ss.85, 86 and 86A to preclude injustice arising from the forfeiture of credit charges. Thus, the Act is properly to be construed as requiring strict compliance with its requirements. 47 The Tribunal noted that the number of contracts affected by the primary and column two errors and held:-
"That debtors at a certain point in time must have found themselves bound by their contracts when they were not fully apprised of all the relevant information to which they were entitled. As a consequence, the potential for loss or damage suffered by the debtors was that, had they wished to withdraw from the contract, they did not believe they could and made no attempt to do so."
48 In considering the significance of the error, the Tribunal had earlier held:-
"The Tribunal is of the opinion that the errors came about as a result of a number of aberrant practices and procedures which gradually emerged contrary to those intended by the applicant. One of the major practices which emerged involved omitting certain details of the contracts, that is the first and subsequent instalment dates. These contracts were subsequently 'amended' or 'adjusted' to include the omitted details by officers of the applicant, resort staff or employees of Throwden's. As indicated earlier in these reasons when these amendments or adjustments were made the contract which resulted amounted to a counter-offer by the applicant which was then accepted by the debtor.
The Tribunal considers that the errors, the subject of the present application, were peculiar in that they related to a specific geographical location within NSW, Port Pacific, and were confined to a particular class of regulated loan contract being contracts associated with time-share interests, where the applicant was introduced to the debtor by Mr. Throwden. It has been established that a single error should be regarded as only one error although an error extending over a lengthy period could be considered important to an issue of compliance: Westpac v. Various Respondents (No. 4) (1992) ASC 56-187 at 57,907:-
'… the Tribunal has to consider whether such a single error repeated in many contracts should be regarded as one error only or should be treated more seriously than single errors because of the repetition of the error in many contracts.
The Tribunal's view is that while such errors should not normally be treated as seriously as a like number of discrete errors would be they should be treated more seriously than a single error. The Tribunal recognises that the systemic error situation would not usually be expected to reveal the same level off (sic) incompetence as would be disclosed in the case of a multitude of discrete errors. However, weight has to be given to the fact that a greater number of contracts are affected by systemic error than would be the case in a 'one-off' error situation.'
The Tribunal concurs with this view.
The Tribunal is of the view that the primary and column two errors fall into this type of error: see also Bing Lee Pty. Limited v. Various Respondents (1994) ("Bing Lee") ASC 56-267 at 58,808.
The primary and the column two errors and the circumstances which gave rise to them are considered serious. This is considered together with the fact that they continued for seven years with the knowledge of senior management."
49 The Tribunal noted the Director-General's submission drawing its attention to the inclusion in these contracts of the following (at p.802 of the appeal books):-
"There was no dispute between the parties that the primary error did not constitute a contravention under s.36. The Tribunal concurs with this view. However, counsels for both the Director-General and the applicant are in dispute as to the significance and the extent of the consequences to which this gives rise.
In order for the Tribunal to assess the circumstances surrounding the primary and the column two errors it is necessary for it to address the question of whether the contracts constitute an offer from or to the applicant, how they were accepted and whether, if accepted, the agreement which then resulted contained terms which were so uncertain as to lead it to the conclusion that no contracts could have been formed.
Despite the fact that the applicant undertook to have in place training and development sessions which were designed to set appropriate and acceptable standards for processing of application forms and contracts, what actually occurred was quite different."
50 In general, the Tribunal accepted the Director-General's submission that as a consequence of the primary error, once the contract was signed by the applicant, the debtor would believe that it was binding, particularly since there was, by that stage, a binding time share agreement that the loan would finance. In most cases the funds would already have been advanced and some debtors would have received their repayment instalment books after the first payment was due. Thus the availability of the right to withdraw, a most valuable right, would have been concealed. 51 The Tribunal, however, also accepted that notwithstanding the reality of the situation was that many debtors were in fact in varying degrees of confusion, there was nonetheless merit in the plaintiff's submission that the debtors were relevantly aware of the nature of the terms. In one case to which I have already referred, the Tribunal noted the prospect of actual loss or damage, ie. the Allport contract. These were persons who did, in fact, seek to withdraw, apparently unsuccessfully. 52 It was submitted for the applicant that the Tribunal erred in concluding debtors may have believed themselves bound and thus suffered potential harm and the Tribunal should have confined itself to dealing with the application on the face of the documents, ie. the submission was that the errors were technical and not substantial. The Tribunal did not agree. 53 The Tribunal, in addition, for the purpose of defining the ambit and nature of the errors and thus the circumstances to set the culpability, made findings concerning the background to the making of the errors. In doing so, as will be seen, it is alleged to have fallen into error by embarking on an enquiry wider than authorised by the Act and by taking into account, as a result, irrelevant matters.
"Important.
• you can withdraw this offer at any time before the credit provider accepts it. When the credit provider does accept it, you are bound by it."
54 The Tribunal subjected the evidence concerning the practices of the applicant to some detailed analysis. It concluded that the relevant branch manager had displayed a casual, if not careless, attitude to the applicant's compliance procedures, particularly when the refusal of that manager to allow the Allports to withdraw from the contract, even though he knew the applicant had not signed the relevant memorandum, was taken into account. The Tribunal concluded that the supervisory and monitoring duties were discharged with little regard to the applicant's practices or procedures, such as they were, that the approach of branch managers was careless; that a set of practices had been allowed to develop which, on any view, must have been suspect, particularly given the hard sell tactics of the time share resorts; that one of the senior managers abrogated his responsibility as it related to giving assistance and support to branch management, in particular as to overseeing training and development in the Act's requirements and monitoring contracts; that a member of the senior staff only saw fit, the Tribunal held, to raise concerns about circumstances associated with the primary error, not because it was required as a matter of procedure, but because he was "concerned" about "aggressive sales tactics" exercised by time share staff. The Tribunal held:-
Applicant's practices as background to the errors
55 The Tribunal found that the evidence of that supervisory or senior staff member and the relevant branch manager to be, for the most part, unreliable and that they had played a central role in what occurred in the circumstances leading to the primary and column two errors. The "details relating to the form and content of the training and development sessions" of the applicant's programmes in relation to education on the requirements of the Act was starkly absent. 56 The Tribunal held that "while the applicant had worthy intentions in developing appropriate procedures and practices in its preparation for the Act's introduction, their methods for doing so proved to be either insufficient or ineffective". It concluded that monitoring of contracts by branch management was only cursory; there was no effective or objective compliance review system; there was informal set of practices and procedures which became entrenched, giving rise to the primary error; there was no evidence to indicate the existence of a practice or procedures manual to define best practice and on the evidence, with some exceptions, it appeared that managers displayed little if any commitment to proper practice and procedure and an unwillingness to be involved in rectifying suspect practices. The applicant was found to be culpable "in that it had no final point of accountability or system of review to resolve any questions or problems as and when they arose". The Tribunal was particularly concerned as to the unstructured training of those persons retained by the applicant to introduce persons to the applicant as a credit provider, not only in relation to time share products, but more generally. 57 In conclusion, when dealing with the circumstances surrounding the errors, the Tribunal held that:-
"The recognition of such tactics should have prompted any manager to have been ever more diligent in applying appropriate procedures and practice."
58 The Tribunal noted that the applicant moved promptly following detection of the relevant errors. It also found, as a matter of fact, that the delays in detection extended over seven years, albeit the relevant branch manager was aware of the circumstances which gave rise to the primary error but did not think to raise these with his superiors. 59 In the applicant's favour the Tribunal noted that, albeit for reasons unassociated with the application, the applicant had ceased executing contracts associated with purchase of time share interests and thus it need not consider whether there was any risk of future non-compliance.
"The practices and procedures which actually developed were in fact a response to facilitate a foot hole in the lucrative market of prime share interests. Effective practice and procedure took second place to this. The interests and concerns of the debtors were subsumed to this central objective. In such an environment and in the absence of any effective compliance review system, the potential for the development of the circumstances which gave rise to the primary and column two errors became greater. The Tribunal considers these factors to be of major significance in its consideration of the relevant circumstances."
60 Apropos the question of exposure of the debtors to potential damage, the Tribunal accepted that except in the case of the Allport and Reeves matters, there was no actual loss or damage. The Allports were denied the opportunity to withdraw and the Mr. Reeves was denied his right of "shopping around" for the best possible loan. The Tribunal concluded that debtors were not always fully apprised of the relevant information and that this would lead to their belief that they were bound. They would not have been concerned to seek to exercise their lawful rights, therefore, in the light of the statements made on the contracts that they were bound by it and the subsequent receipt of the repayment instalment book and copies of the contract. Thus, although the weight of affidavit evidence did not specify other actual loss or damage, the Tribunal held that it did not follow from the absence of such evidence that some such similar loss or damage to that suffered under the Allport and Reeves contracts was not a possible, or even likely, consequence of any of the contraventions. Indeed, the Tribunal concluded:-
Potential damage
61 The Tribunal took into account the applicant's estimated expenses associated with the application of approximately "$250,000". It concluded there should be no penalty in respect of the two re-financing contracts on the basis that any contravention there involved of s.36(2)(c) would be no more than a consequence of the contravention under s.36(1) in the prior contract.
"In the light of these circumstances, the potential for loss or damage to the respondents is considered to be a possibility."
The extent of the penalty
62 In determining that the credit charge might be restored to the extent of 82%, the Tribunal first held that the circumstances were sufficiently serious to warrant a penalty and the effect of the order which it proposed to make would be that for any debtor who had discharged his or her contract ahead of time, his or her liability in respect of the credit charge can be no greater than the amount of the "accrued credit charge" within the meaning of that expression under the Act. It had regard to its view that the task of the Tribunal was to impose an appropriate sanction, not only in respect of past conduct, but designed to secure appropriate conduct on the part of the credit provider in the future, citing Bing Lee and referring to the concepts of punishment, deterrence (specific and general) and rehabilitation. 63 It concluded, in the light of the applicant having ceased executing time share agreements, and having been placed in voluntary liquidation, that no portion of the sanction be directed towards the applicant's future rehabilitation. In the absence of evidence that costs associated with possible refunds under the contract would cause administrative difficulties, it concluded that it would not be unreasonable to require the applicant to adjust individual accounts to provide refunds. 64 Before me there was evidence of the consequence of the Tribunal's order.:-
65 That evidence was, of course, not before the Tribunal but it may be accepted that the Tribunal's order might have been expected to produce a consequence that could have been calculated on what was before the Tribunal as in that range. 66 It is the perceived loss of that sum or the proper proportion of it and the attendant costs of defining it which has generated this appeal.
"10. The plaintiff estimated that the accrued credit charges as at the date of the hearing of the application before the first defendant under the affected contracts in respect of which relief was sought in the application totalled $930,965.46. The plaintiff is currently unable, however, to estimate the quantum of the 'penalty' imposed by the first defendant as that is dependent upon the question of the proper construction of the order made by the first defendant. If the intention of the order is to require the plaintiff to recalculate the credit charge payable under each contract at the reduced rate and on the assumption that all payments by the relevant borrower under his or her contract are made on the day and in the amounts as agreed, this calculation will take some time but the plaintiff expects that it will be an amount which will be in excess of $140,000." (Affidavit of Ronald Edward Buxton, sworn 24 January 1996)
67 The plaintiff has brought the appeal on nine grounds each of which is asserted to involve the erroneous decision of questions with respect to matters of law decided by the chairman in the proceedings before the Tribunal, the decision of the Tribunal on such a matter being the decision of the chairman:-
Grounds of appeal
68 It is further contended that the order is uncertain in operation and effect and does not constitute a proper or lawful exercise of the power conferred by s.85 of the Credit Act, in that:-
(2) making orders relieving the plaintiff in part from the consequences of contraventions of the same nature but on the basis of increasing the amount of credit charged by applying an annual percentage rate the equivalent of 82% of the rate stated in the contract, so that, so it is contended, the quantum of the penalty varies in an individual case according to the amount of the credit charge and the time of the contract, which are not material to the relevant contraventions.
(1) in making the same form of order with respect to each of the borrower's contracts without attempting to distinguish between contracts involving different contraventions of the Credit Act;
69 At the hearing, the parties relied upon extensive written submissions. In an attempt to relate its arguments to the grounds, the plaintiff filed a concordance of contended errors of law to its written submissions. It reduced the contended errors to four categories which were not mutually exclusive. Those categories are set out as follows. I take their definition from the plaintiff's written submissions:-
(1) The penalty was not tailored to fit the particular case;(2) the penalty was not duly proportionate to the relevant conduct of the plaintiff;
(3) the tribunal did not give weight or any sufficient weight to the fact that there was no evidence any borrowers sustained loss or damage or was likely to or could have suffered loss or damage by reason of the contraventions;
(4) did not limit its consideration to circumstances to relevant circumstances and, in particular, had regard to conduct, possible loss and damage which did not arise or result from the contraventions;
(5) did not limit itself or give appropriate weight to the considerations courts had ordinarily treated as relevant in such circumstances;
(6) erred in holding that a belief on a part of the borrowers that they were bound to their contracts would lead to possible or likely loss or damage as a consequence of the contravention and that there was possible or likely damage as a consequence of the contravention;
(7) further, that the first defendant erred in determining it would not be unreasonable to require the plaintiff to adjust the accounts of the borrowers or to refund and failed to take into account the difficulties experienced by the plaintiff in locating and serving the borrowers such that it would be futile to attempt to adjust the accounts and make refunds to borrowers whose whereabouts can't be located.
70 The generality and overlapping nature of the propositions put did not produce a clarity of argument.
" Class 1 Incorrect definition of the question of fact to be answered in accordance with the law governing the controversy; misapprehending the matter of which the Tribunal had to be satisfied in reaching its decision.
Class 2 Making findings of fact which entirely lack a foundation in the evidence.
Class 3 Taking into account irrelevant considerations, in the face of the statutory requirement to consider relevant circumstances .
Class 4 Miscarriage of discretion on question of penalty which embraces (a) misjudgment of the culpability or seriousness of the contravention and of the precise extent by which there has been deviation from the obligations imposed by the Act; (b) ignoring differences and fixing a common rule; (c) imposing a penalty manifestly excessive; (d) not tailoring the penalty to fit the requirements of the particular case; and (e) failing to appreciate that the circumstances enlivened s.86B."
71 During the extensive oral submission that occurred at the hearing of this matter, the plaintiff sought to file and rely upon the affidavit of Stephen Tudjman sworn 30 June 1998, which affidavit referred to applications having been brought in Victoria, the ACT and Queensland in respect to contracts affected by similar contraventions and in respect of which similar legislation to the New South Wales Credit Act and the Commercial Tribunal Act existed as part of the a nationwide legislative scheme. The affidavit referred to the orders made in respect of those contraventions in each such State and Territory and it was submitted that although this evidence had, in part, not been before the Commercial Tribunal, the material was admissible in this court, at least so far as it might be useful in helping to define an appropriate range of penalty and in order to illustrate as to those decisions that preceded the determination of the Tribunal that the Tribunal had erred by failing to have regard to them by using its power to inform itself under s.19(9) or by failing to adopt a relevant decision or judgment under s.24(1)(b) of the Commercial Tribunal Act. 72 The whole of the material was said to be admissible on various bases including the principles of comity and to enable a comparison to be made to ascertain whether the penalty imposed in the present case is so out of reasonable proportion as to be disparate or to be in legal error in itself. 73 In arguing against the admissibility of the material, reliance was placed by the second defendant upon the judgment of Lockhart, J. in Attorney-General (Northern Territory) v. Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540 for the proposition that on an appeal for error of law, as here under s.20(5), the trend of judicial opinion would confine the evidence before the court to that before the decision maker. 74 The extensive written submission on the question refers to significant differences between the present decision of the Tribunal and the decisions of the other Tribunals, noting, in particular in detail, different findings including findings as to gravity by the New South Wales Tribunal from those made by the Credit Tribunal of Victoria. It was also noted that the ACT and Queensland decisions arose in a substantially different context as the ACT decision was in fact a consent order made after the New South Wales Tribunal had reserved its judgment, and was not brought by the plaintiff to the New South Wales Tribunal's attention and the Queensland order was made long after the New South Wales Tribunal published its decision. Further, the application in Queensland was made on the basis the contraventions were minor errors and that was on an entirely different legal basis to that made in the present proceedings. 75 It is contended that the reliance on the parity or unreasonable disproportion principle, therefore as and between these decisions and that in the instant case, is mistaken; that the principle does not support the proposition that a comparison can be made between those other decisions and this. But to so conclude, requires my consideration of the material. 76 In my view, I may refer to the material for the purpose of ascertaining whether the relevant decision is so out of conformity with some established range or context as to be in legal error. It is material which, had it been available, the Tribunal might have referred, and might have, had it wished to do so, adopted in whole or in part (s.24). 77 The affidavit of Mr. Tudjman provides evidence of that material. Rather than consider the materials as evidence in the strict sense, I consider that it is proper to have regard to these decisions in examining the conformity of this decision to some general pattern particularly because of the role required of the Tribunal in the administration of a national legislative scheme which required it, in the exercise of its discretion in furtherance of the objects of the Credit Act and its functions under the Commercial Tribunal Act, to have regard to and conform with matters of general policy and guidelines of national application: see Kirby, P. in Canham (supra) and Cole, AJA. in ANZ Banking Group Limited v. Director General of the Department of Fair Trading & Anor (supra). 78 Spigelman, CJ. in Regina v. Henry, Barber, Tran, Silver, Tsoukatos, Kyroglou & Jenkins [1999] NSWCCA 111 at paras.49-85, in the particular context of a statutory restriction on an appellate court receiving evidence that had not been available below, examined the utility on appeal of material analogous to that sought to be relied on here in the analogous case of ascertaining the appropriate range of sentence for particular crimes. Legal error in the exercise of discretion was there also the contended foundation for the appeal.
Further evidence on inconsistency
79 Similarly, I am of the view that I might have regard to this material in order to ascertain whether, considered in the context of the policies applied by the Tribunal appropriately and considering the approaches and orders made by the interstate Tribunals, the decision in the instant case can be said to be outside the range of an appropriate exercise of discretion: see House v. The King (1936) 55 CLR 499, insofar as the approach in the instant case can be seen in the light of those materials to be so disproportionate or disparate from the approaches taken by the other tribunals that error can be inferred. 80 The argument that is put is that these materials will show that the ultimate decisions was unreasonable in the Wednesbury sense as showing there was an "unreasonable disproportion": see Regina v. Geddes (1936) 36 SR(NSW) 554 at 556. It was submitted that the parity principle as applied in sentencing is to be and has been applied in the context of the Credit Act in Canham (supra) at 267 where Kirby, P. cited the observations of Mason, J. in Lowe v. The Queen (1984) 154 CLR 606 at 610. 81 I emphasise at this point that although I am having regard to the material contained therein for the purpose of evaluating the submissions as to unreasonableness, disproportion or disparity, I am cognisant of the differences between the present case and those referred to in the materials referred to in paragraphs 3-12 of the Director General's further submission in reply and of the submissions contained therein as to the nature of the appeal in these proceedings to which I will turn later. I am particularly aware of the submissions contained in paragraph 12, that in any event these decisions do not show such disparity or unreasonableness as to amount to error in the exercise of the discretion. 82 It is not the case that a mere disparity will show an error of law. Further, it is not the case that a mere difference in result will show a disparity. Much less is it the case that a difference in result capable of being explained in the way the second defendant has referred to in its written submissions here, will show any error of law in the exercise of discretion to which, on appeal, s.20(5) would apply or any unreasonableness, disparity or disproportion such that an implicit error of law may be said to underlie the result. Whilst I am of the view that I may have regard to the material, as will be seen, I do not consider that the materials make out any legal error as contended for. I am strongly of this view when I have regard to what the Court of Appeal judgments in Canham (supra) held concerning the 25% penalty for the common error there discussed and the examination of background circumstances as underlying the gravity of the contravention.
Manifestly excessive penalty
83 I turn then to the nature of the appeal to this court. I have earlier referred to the difficulties I have with the form of the statutory appeal provision. It has been held that the appeal is limited to questions of pure law: see amongst other cases Esanda Finance Corporation Limited v. Murphy & Anor (1989) ASC ¶55-703 at 58,349; Australian Societies Group Financial Services (NSW) Limited v. Bogan & Anor (1989) ASC ¶55-938 at p.58,558 and Canham & Ors v. Australian Guarantee Corporation Limited & Ors, Pearce & Anor v. Australian Guarantee Corporation Limited & Ors, Porter v. Australian Guarantee Corporation Limited & Anor (1990) ASC ¶55-984 at pp.58,924, 58,926 and 58,927. 84 In reliance on these decisions and what was said by the Appeal Division of the Supreme Court of Victoria in Custom Credit Corporation Limited v. Gray (supra), it was submitted that the Tribunal in various respects had erred in law in matters which, whilst not expressly decided, had in the reasons for decision raised questions with respect to matters of law by necessary implication and that was, in the light of the case law, sufficient for the statutory right of appeal to apply. 85 In Custom Credit Corporation Limited v. Commercial Tribunal of New South Wales & Ors (1993) 32 NSWLR 489, albeit the court was concerned more directly with s.20(3), Gleeson, CJ. at 492, pointed out:-
The nature of the appeal
86 In that passage, his Honour has referred to matters of law implicit in the decision and matters of law identified by the presiding chairman or deputy chairman for reference to the Supreme Court for decision. Appeal only lies against the decision of a question with respect to a matter of law by the chairman or deputy chairman. 87 Under subsection (3), where a question arises, the chairman or deputy chairman may decide the question or refer it. Subsection (5) appears to relate to the case where the chairman or deputy chairman decides the question and it is only in respect of that decision that appeal to this court lies, not in respect of the result in the proceedings as a whole. Carruthers, J. in Canham (supra) at 58,923, following the decision of Hunt, J. in Esanda Finance Corporation Limited v. Murphy & Anor (supra) which adverted to similar doubts as to the ambit of the appeal provision as those which affect me and his Honour's observations in that regard, which were, however, obiter, held that the section was intended only to embrace a pure question of law, that it did not include any question which merely contains some legal element and that the provision is not broad enough to cover mixed questions of law and fact. 88 His Honour, following the decision of Campbell, J. in Australian Societies Group Financial Services (NSW) Limited v. Bogan & Anor (supra) held that the necessary decision need not necessarily appear from an express ruling butt may be implied from the Tribunal's reasons. His Honour said:-
"3. On of the purposes of s.20 is to allocate decision-making functions. Where a chairman or deputy chairman sits with two lay members, it is the chairman or deputy chairman who alone has the capacity to decide questions of procedure and questions of law. It may or may not be appropriate or convenient to decide questions of law specifically and separately. Sometimes decisions of such questions may merely be implicit in the final decision of the Tribunal. However, it is clearly within the power of a chairman or deputy chairman, at any stage of proceedings, to identify a question of law and either decide it or refer it to the Supreme Court."
89 His Honour agreed that it was not a practical or sensible interpretation of the provisions to require the chairman or deputy chairman to set out separate judgments on all questions of law as might be involved in a matter by way of individual decisions separating them out from questions of fact and held:-
"It would, of course, be desirable (if circumstances permitted) that where the chairman or deputy chairman decides a question arising with respect to a matter of law, such decision be recorded. However, although my mind has wavered on the matter, where no such specific record has been made, it is open to this court to infer from the wording of the Tribunal's joint judgment, the question or questions with respect to a matter of law which were decided by the chairman or deputy chairman."
90 The authorities therefore establish that it is with matters of law only that this court is concerned. The issue is not whether there has been a factual error in deciding on jurisdiction or whether there has been a factual error in the exercise of the discretion but whether, in proceedings before the Tribunal, the chairman or a deputy chairman who has decided a question with respect to a matter of law, has fallen into legal error. It is only that question which the Supreme Court may deal with when deciding the question the subject of an appeal under subsection (5). The identification of that question was the task from which Hunt, J. (as he then was) was relieved in Esanda Finance Corporation Limited v. Murphy (supra) by the availability of quasi prerogative relief. It is that decision of the Chairman on such a question which may be affirmed or not. It is only in consequence of a decision to affirm or not that the court may make such order in relation to the proceedings as in its opinion should have been made by the Tribunal, ie., as consequential upon a decision as to the correctness of the decision of the chairman or deputy chairman or to remit its decision on the question to the Tribunal and ordering a re-hearing (see subsection (6)). 91 Thus, on such a re-hearing, subsection (7) requires that the question with respect to the matter of law be clearly identified to enable the Tribunal to proceed in a manner not inconsistent with the decision of the Supreme Court. 92 It is contended here there have been factual errors of such a character as to show error of law but to avail itself of this right of appeal rather than quasi-prerogative review, it is necessary for the plaintiff to identify the error of law so as to give this court's decision the precision s.20 requires. To do this it is necessary to examine the nature of the relevant Tribunal and what powers Parliament has conferred on it. In this case an enquiry into the nature of the Tribunal is assisted by examining the nature of the appeal.
"It is, I think, appropriate that I express my views upon the meaning of the phrase 'a question with respect to a matter of law'. Despite arguments both by the plaintiffs and AGC to the contrary, it is my view the draftsman intended this phrase to encompass nothing more than a pure question of law. I think it was the legislature's intention that apart from vesting the chairman or deputy chairman with the right and obligation either to decide a question of law himself or to refer it to the Supreme Court, no distinction was to be drawn between the powers and functions of the respective members of the Tribunal. Thus it could not have been the intention of the legislature that the chairman or deputy chairman solely decide other than pure questions of law. Further, I am confident that the legislature would not have intended that the chairman or deputy chairman have the right to refer anything other than a pure question of law to the Supreme Court for decision. It would be quite inconsistent with well established practice, as well as the function of this court, for a mixed question of fact and law to be referred to it for decision."
93 The provisions of s.20 have their counterpart in ss.106 and 107 of the Residential Tenancies Act. They are unlike almost any form of "appeal" generally known. They plainly are to be distinguished from provisions which permit of an appeal in the Warren v. Coombs sense as under the Supreme Court Act, or an appeal on law as under s.5 of the Criminal Appeal Act. The analogy is much closer with the reservation of a point of law under s.72 of the Judiciary Act or the submission of questions of law under s.5AE and s.5A of the Criminal Appeal Act 1912. An appeal under such provisions requires the identification of the legal matter for decision and assistance, if necessary, to do that from the parties during the hearing below. It would permit the parties and the chairman or deputy chairman presiding at the Tribunal to have regard to the materiality of the decision on a question of law for such questions as might be the subject of an appeal, ie., as might be in dispute below, to be adequately defined for the purposes of appeal. It would permit, on appeal, the grounds of appeal to be considered on their face and in the light of the decision below as to whether they raised a pure question of law suitable for the decision of this court. It would allow the exposure of questions of fact and mixed fact and law and the consideration in a particular case of whether a question with respect to a matter of law might include such a matter of fact or mixed fact from which the relevant question of law could profitably be winnowed out. 94 The language employed in s.20(5) is in marked contrast to familiar provisions conferring a right of appeal on law and particularly having regard to that contrast, I am not satisfied that there is provided some form of generalised administrative review by this court of the ultimate decision in some general context of examining the legal principles applied expressly or implicitly. I consider it will at least be necessary for a party to avail itself of the appeal right afforded by s.20(5) to articulate a precise question relating to a matter of law, to show how the decision of it, whether express or implicit, was integral to the conclusion and why that decision was wrong. Usually, one would expect such a question to be raised and argued before the Tribunal. The questions raised on this appeal by the asserted grounds of appeal lack these qualities.
Difference from other appeal provisions
95 Certain of the grounds appear to assert error of law by way of jurisdictional error. Section 20(10) provides:-
Errors of jurisdictional fact and errors of law
96 Thus, if although the full effect of such a provision is at the least a matter for speculation, a question with respect to a matter relating to the jurisdiction of the Tribunal would be capable of founding an appeal under s.20. In shorthand it could be said that error in respect of jurisdictional matters is here error of law . 97 Usually errors as to jurisdiction are also relevantly errors of law. Case law defines such errors. In Craig v. South Australia (1994-95) 184 CLR 163, the High Court, in discussing jurisdictional error in the context of the examination of the applicability of certiorari to the decision of a subordinate court, referred to the well known passage in Lord Reed's speech in Anisminic Limited v. Foreign Compensation Commission [1969] 2 AC 147 at 171 in which in Lord Reed's catalogue of errors are included a decision in bad faith, a decision which the Tribunal had no power to make, a failure to comply with the requirements of natural justice, a misconstruction of the provisions giving power to act, so as failing to deal with the question remitted or deciding some question not remitted, refusal to take into account something which was required to be taken into account or basing the decision on some matter which, under the provisions setting up the Tribunal, it had no right to take into account. The High Court continued (at p.179):-
"For the purposes of this section, a reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal and a matter as to the admission or rejection of evidence."
98 In Lovell v. Lovell (1950) 81 CLR 513, in the consideration by the justices of the High Court of the ambit of appeal legally permissible from a discretionary judgment, Kitto, J. drew the distinction between such errors as might found an appeal from the exercise of discretion and mistakes of law (at 532), referring at 533 to the speech of Lord Atkin in Evans v. Bartlam [1937] AC 473 at 481. That decision re-emphasised the respect due to an original exercise of discretion in the absence of error: see House (supra at 504-505). 99 It is on the error of law rather than what consequent errors are caused that it is necessary to focus to apply s.20(5). 100 To detect what jurisdictional matters may be important the general law should be shortly considered. 101 It is unusual for a tribunal to have conferred on it authority either to determine authoritatively questions of law or to make an order or decision otherwise than in accordance with the law: see Craig (supra at 179). However, a presumption that a Tribunal does not have that power must yield to the language of the Parliament and the terms of the legislation under which the Tribunal is set up: see Craig (supra at 179). 102 Where, as here, an appeal is provided for by the statute and that appeal is limited as has so far been held, to an appeal on a pure question of law and, in my view, to a pure question of law the decision of which affects the result below materially, which question, whether expressly or implicitly was decided below, then it would appear that Parliament has conferred upon the Tribunal the authority to decide questions of law as well as questions of fact involved in matters which it has jurisdiction to determine: see Craig (supra at 179-180). Section 20(10) clearly evidences that this is such a Tribunal. In such a case, the observations of the High Court at 180 are of significance:-
"If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material, or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers."
103 These remarks are applicable to an appeal under s.20. 104 But in the absence of such an error, appeal by this means will be unavailable. 105 Although the Director-General accepts the plaintiff's submissions as to the nature of the appeal right conferred by s.20(5) in respect of the various errors contended for, it submits either that the Tribunal did not fall into error or that the relevant error was not an error of law. It contends that no error of law arises if the Tribunal, absent jurisdictional error merely made a wrong finding of fact or wrongly found some immaterial matter (Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 at 355-356 per Mason, CJ.) or if it applied a reasonably appropriate matter of opinion or policy, particularly as identified as a guide to serve the object of the discretion as on appeal as in, eg., Canham (supra). (See the discussion of the application of appropriate policy as defined as relevant to the exercise of discretion in the analogous context of sentencing by Spigelman, CJ. in Henry & Ors (supra) at paras.13 and following.) 106 So much may be accepted. Within the limits set by the Act, and the decided authorities, it will be for the Tribunal to identify and apply appropriate policy, to decide what is relevant and what is irrelevant, to evaluate and weigh the circumstances and consider them in context. There is confided in the Tribunal a jurisdiction that involves the exercise of a normative judgment. Within the ambit of the functions it is required to perform and the requirements imposed upon it by the Act, the making of such a judgment is for it. Minister for Immigration & Ethnic Affairs v. Teo (1995) 57 FCR 194 at 199G, 201B. The jurisdiction is wide and includes the finding of jurisdictional facts. Here, the relevant body is not a court but a specialist Tribunal to which the legislature has confided a statutorily unrestricted discretion which therefore is limited only by the implications necessary from the subject matter, scope and purpose of the legislation (in this case the Credit Act and the Commercial Tribunal Act). For the limits on the court's power to intervene, see the discussion by Mason, J. (as he then was) in Minister for Aboriginal Affairs v. Peko Wallsend Limited (1986-87) 162 CLR 24 at 39-42, in particular at 40:-
"Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court …"
107 The appeal here is from a Tribunal which is entrusted with the task of ensuring stringent compliance with legislation as part of a national scheme and which legislation involves the regulation of a substantial portion of the economic life of the nation. In that regard it will be open to the Tribunal to have regard to matters of policy and to take into account matters which will peculiarly fall within the knowledge it might acquire appropriately and have regard to under the provisions of the Act and in the administration and decision of the matters coming before it. To a very great extent, Parliament has confided in the Tribunal the task of itself defining the ambit of relevance in a given case. It is particularly entrusted with the task of assessing the gravity of any contravention in the context of the role the Tribunal plays in the administration of the national credit regulating scheme. It will be for the Tribunal to consider such facts as are necessary and to decide what factors it will consider amongst those which it is permissible but not obligatory to consider (Minister for Aboriginal Affairs v. Peko Wallsend Limited (supra) at 39-42). The necessary matters are stipulated by the Act or essential properly to comply with it. The permissible matters are those within the proper ambit of what might reasonably be considered conducive to the achievement of the statutory object. 108 I conclude that error of law would only be for jurisdictional error from decisions turning on a wrongful decision as to the first class of those matters. Discretionary judgment would not involve error of law unless there is error of law as defined in the well-known passage from House (supra) at 504-505. Further, it appears to me that under the legislation, it is important to discriminate between matters which might have founded an appeal against the exercise of a discretionary judgment to an appellate court entrusted with a wide appellate jurisdiction not limited to appeals on pure questions of law and those matters which would permit appeals on questions arising with respect to matters of law in the proceedings. Thus here, I am not concerned with any submission of breach of natural justice or jurisdictional error in the sense referred to in Anisminic Limited (supra) or in Craig (supra) unless also that error amounts to an erroneous decision with respect to a matter of law arising in the proceedings within the ambit covered by s.20(5) and s.20(10). Given that the decision may be implicit rather than express and isolated, and that it must be taken to be the decision of the chairman or deputy chairman, albeit it will underlie the decision of the Tribunal, nonetheless, any error of this kind must be capable of being clearly identified as a legal error for the reasons which I have given. 109 Many of the plaintiff's contentions as to error in this appeal rely upon implicit or inferred errors not identified before the Tribunal, or indeed as far as can be seen from the three volumes of appeal papers, often not identified in argument or in the decision as questions of law before the presiding deputy chairman or the Tribunal as a whole. As to a great many of the submissions now made by the plaintiff as to errors to which it is contended s.20(5) would go, it is notable upon analysis that those errors are either not in respect of pure matters of law or before me those errors were not so defined as to isolate the relevant question of law for decision. 110 This, as I have demonstrated, is of some considerable importance and not only since it is necessary to be able to ascertain what decision should have been made by the Tribunal on the relevant question in the opinion of this court so that an appropriate order might be made under s.6(a) or alternatively so that the decision on the question might be remitted to the Tribunal for a re-hearing of the proceedings. But also since it would be necessary at the least that the decision of law in question be material to the conclusion. The section is not so wide as to permit a re-agitation of all legal questions that might have been before the Tribunal on the basis that the plaintiff is aggrieved with the ultimate decision. 111 Nonetheless, and having regard to the submissions of the parties, whilst I might have been of the view, unassisted by authority, that it was necessary for the decision of the relevant question below to be identified below or at least clearly before me,. I will accept at least until this question has been otherwise examined and the court assisted by full argument, that it is open to the plaintiff to proceed on the basis that implicit questions of law have been erroneously decided against it. If, however, I am unable with the assistance of the submissions of the parties, sufficiently to isolate the questions of law from matters of fact so as to be able to detect error, if it existed, in the decision of the pure question of law, it would, as I understand the authorities, be incumbent upon me to reject the suggested submission of error.
"(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation [1948] 1 KB at 228."
112 In the light of that discussion, I can deal shortly with some of the grounds of appeal. Certain of the grounds may be dealt with together, in particular those grounds I refer to in paragraphs 67 and 68 above, insofar as they refer to the Tribunal making the same form of order in relation to each contract, the fixing of a penalty at a percentage rate, as is contends the penalty was not tailored to the particular case, not duly proportionate to the relevant conduct and inappropriately reflective of an actual or possible loss and damage held to flow from the contravention. Except for the issue relating to the appropriate resort to an alternative to refund as provided by s.86B, these embrace the matters referred to as within class four in the concordance. 113 That last matter does not appear to have been raised below in some such form as would satisfactorily enable the review of the determination of the Tribunal. The Tribunal determined that the applicant did not present any evidence that costs associated with possible refunds would cause difficulty. On that basis, it considered that it would not be unreasonable to require the adjustment of individual accounts. No doubt for that reason, but in any event, it did not express any finding of fact sufficient to enliven its power to give a direction under s.86B(3), and the finding of fact it did make would speak against its being satisfied of the necessary matters. 114 It is only in the rarest case that an error of law might arise where the statute confides in a Tribunal a power conditioned upon it reaching satisfaction as to a state of fact and where neither that fact has been found nor the facts necessary for such satisfaction. Here, it is simply not open to seek to isolate a decision on a question with respect to a matter of law on which the plaintiff might succeed. I am satisfied there is no substance in this ground. 115 As to the grounds that challenge the form of order to which I have earlier referred, for the reasons I have given in relation to the admission of the additional material and in discussing the parity question, I do not consider that it is open to argue that here in the circumstances found, the resultant penalty remaining after the increase of the debtor's liabilities was manifestly excessive or disparate. I do not consider the adopting of a percentage basis for penalty as legal error. Such a mode of fixing penalty has been referred to often in the case law without criticism. There is nothing inherently objectionable about it. 116 For the reasons given by Mathews, J. which I will turn to discuss shortly and those given by Kirby, P. in Canham (supra), in particular which, in this respect amplify the principles applied, albeit without detailed consideration in a number of the cases, I consider that it is clear that the surrounding circumstances as well as the precise contravention need to be considered for the purpose of ascertaining to what extent the liability of the debtors should be increased and the concomitant penalty on the credit provider reduced. 117 Submissions were made to me not unlike those put to Mathews, J. and considered by her in Walter Pugh v. Commissioner of Consumer Affairs (1988) 13 NSWLR 420 at 427 where her Honour condensed the individual submissions there summarised and said as follows:-
The suggested errors
118 After her Honour turned to consideration of the way in which the contention had been put, she rejected it having analysed it and concluding at 429:-
"The essence of the plaintiff's complaint about these matters is that the Tribunal took into account, in reaching its determination, matters which were not properly relevant to the exercise of its discretion under s.85. To this extent it says that the Tribunal misconceived the nature and extent of its discretion under that section (that being ground 3 in the Part 51A statement). This resulted, it says, from the Tribunal's erroneous construction of s.85 (that being ground 2(a)). The matters complained of in para.2(b) represent particular findings of the Tribunal, arising from its consideration of the relevant provisions, which the plaintiff says were wrong in law.
Thus it is that all these grounds of appeal can readily be encapsulated in the single complaint that the Tribunal erred in its interpretation of s.85 in that it construed the section as requiring or authorising it to take account of matters which were not properly relevant to its discretion. As a result of this error, the plaintiff says that the Tribunal relied in its judgment upon material which should not properly have been considered by it.
The plaintiff's substantial complaint is that the Tribunal took account of the interest rate invariably charged by the plaintiff, and used this as a basis for finding that the plaintiff should not be entitled to the relief which it sought. In the process it considered mush irrelevant material, including the debtors' understanding of the interest rate under the contracts, the practice of other moneylenders, and even the statutory ceiling for interest rates in Victoria. All of this, the plaintiff says, was outside the ambit of matters which should properly have been considered under s.85.
As a necessary basis for the success of this argument, Mr. McDougall has urged that the 'relevant circumstances' to be considered by the Tribunal under s.85(2) should be confined to matters relating to the contravention itself. In the circumstances of this case, the Tribunal was perfectly entitled to explore the plaintiff's conduct leading up to the contravention, and the effect of the contravention upon the affected debtors. But it should not have paid any regard to the interest rates charged under the contracts, that being entirely irrelevant to the contravention in question."
119 In relation to contraventions or failures to comply with the Credit (Administration) Act 1984 in contrast to the consequences of a contribution under the Credit Act, her Honour noted that the former provides for a civil penalty whereby the debtor is not liable to pay either the principal (amount financed) or the credit charge and thus on an enquiry under that Act the issue whether the contravention "ought reasonably to be excused" is relevant only to whether the debtor's liability to pay the amount financed should be reinstated. She assumes that on such an enquiry there should be a restricted ambit to considerations relating to the circumstances and consequences of the contravention itself and upon that assumption her Honour describes a scheme which she descries under s.85(2)(a) and (b):-
"For his fundamental argument is that the Tribunal, in making its determination under s.85(2)(c), is entitled only to consider matters directly relating to the contravention."
120 That case involved what her Honour held to be many contraventions of s.36 which were regarded by the Tribunal quite rightly, in her view, in a very serious light. There were said to be constant breaches caused by the failure of the plaintiff's staff to appreciate the omission or the significance of the omission of relevant material from being included on the standard form of contract asserted to have been by reason of a lack of space arising from a printer's error. The breaches were said, in turn, to have resulted from inadequate staff training as to the obligations imposed upon credit providers and revealing a blatant disregard of the importance of attention to obligations under the Act. Her Honour concluded that the appreciation by the Tribunal of these matters was entirely appropriate, fair and reasonable and that in the circumstances, the increase of the liability of the debtors from nil to 29% where small, short term loans such as those provided by the plaintiff were commonly subject to interest rates of between 19% and 35% was, in a sense, generous to the plaintiff.
"Having satisfied itself that there has been a contravention or failure to comply with the Credit (Administration) Act, the Tribunal must then determine whether it ought reasonably to be excused. This will involve a consideration of matters directly relating to the breach. If it is satisfied that the contravention ought reasonably to be excused, then it is bound to re-establish the debtor's liability to pay the principal amount financed under the contract. It still, however, retains a full discretion to make orders in relation to the credit charges. To use the same discretion by that conferred by sub-clause (c) in relation to contracts which contravene the Credit Act. It must follow from this analysis that far from restricting the considerations available to the Tribunal under s.85(2)(c), the scheme the legislation requires the Tribunal when determining whether to reinstate the whole or any part of the credit charge, to consider matters which go beyond the circumstances relating to the breach itself. For even if the breach is one which 'ought reasonably to be excused', nevertheless the Tribunal retains, under s.85(2)(a)(i), (b)(i) an unfettered discretion to reinstate the whole or any part of the credit charge."
121 Considering the principles enunciated by her Honour and those enunciated in Canham (supra) to which I have referred, in my view it was plainly open to and correct for the Tribunal to find the facts and nature of the contravention, the surrounding circumstances, the practices of the plaintiff and to characterise the errors of the plaintiff as appropriately seen by the Tribunal in the context of its application of the legislation and its underlying policies. To do so was not to ask the wrong question, to consider irrelevant matters or to misapprehend what necessary matters should be considered. 122 It was open, in my view, for the Tribunal to conclude that the plaintiff's errors were serious, that in some respects the contraventions continued for seven years with the knowledge of members of senior management, that the errors occurred because of inappropriate practices and that it became apparent that the plaintiff either fundamentally misunderstood or disregarded its responsibilities under the Act. These were matters that the plaintiff contended were irrelevant. It was not only open to the Tribunal to consider that they were relevant but, in my view, these were matters of fact and not jurisdictional fact. It was also open to the Tribunal in performing its evaluative function to conclude that the errors were serious in the light of what it identified as the errors. The plaintiff came to the Tribunal on an "in globo" approach seeking that such errors as the Tribunal identified should be the subject of relief. The Tribunal then identified the errors available on the evidence. It made in that respect findings of fact. 123 Similarly, it was open to the Tribunal to conclude, putting aside the matter of Allport, there was in each case involving the primary error, potential or possible loss or damage, ie., that those who might have come to deal with the plaintiff would have been exposed by its practices to potential loss or damage against which the legislation had set its face. Clearly, the effect of the omission of E4 and E5 in the contract was significant both in the causal chain which led to the relevant error occurring and in the prejudice that those omissions occasioned to debtors. Potential loss or damage is clearly relevant: see Walter Pugh (supra) at 427C. 124 The attribution to the practices of the plaintiff and the various errors identified of potential loss or cause is a matter of fact as are most matters of causation: see Royall v. The Queen (1991) 172 CLR 378 and March v. E. & M.H. Stramere Pty. Limited (1991) 171 CLR 506. 125 The suggestion that the Tribunal has failed to penalise the true error and instead penalised other conduct, is to ignore the way in which the application was put before the Tribunal, the evidence before the Tribunal and the ambit required of an enquiry by the Tribunal under the Act. The finding that the potential loss or damage lay in the acceptance of the contract by conduct so that a debtors might not have availed themselves of their contractual or statutory rights to withdraw, is a finding that the parties sought to be protected by the legislation had been, by the practices of the plaintiff, deprived of that protection. 126 As was submitted on behalf of the second defendant, the primary error was a failure to have the entire contract between the plaintiff and the relevant debtor signed in writing by that debtor. It was not a failure on the part of the plaintiff to have the borrower re-sign. Such a course would merely be an attempt to rectify the basic error. The Tribunal was entitled to find what were the contraventions and act on its findings. It found the fault to be as the second defendant submitted. That does not evidence any legal error. 127 It is not necessary for me to examine precisely the accuracy and correctness of the Tribunal's other challenged findings of fact. For the reasons I have given, the Tribunal was entitled to regard those matters as relevant. They have not been demonstrated to me to be irrelevant. Where such findings of fact could not give rise to legal error, the Tribunal is entitled to make those findings free from factual review for correctness. The discussion I undertook above shows that in finding so there was no erroneous decision of an identifiable question with respect to a matter of law. The Tribunal has confided in it the task of dealing with matters of fact. It is only decisions on questions with respect to matters of law that may be reviewed under the appeal provisions here in question. Unless those findings showed legal error, they must stand. 128 Notwithstanding my reading of the voluminous material, I found no support in it for the assertions the Tribunal lacked evidentiary support for its findings or mistook the evidence. 129 I consider the Tribunal is not limited in the imposition of penalty to the consideration only of matters comprising contravention which enlivened the jurisdiction of the Tribunal. It is not only entitled but bound within the policy and for the object and purposes of the Act to consider those matters to which Mathews, J. in Walter Pugh (supra) and Carruthers, J. in Canham (supra, at first instance) and Kirby, P. on appeal, adverted. None of the matters to which the plaintiff has referred are in my view illustrative of some underlying error of law in the sense of being wrongly decided jurisdictional facts, materially irrelevant or otherwise indicative of error of law in the Craig sense or to which s.20(10) applies. 130 I find no error in the Tribunal's appreciation of the ambit of its fact finding function, so far as might enable me to detect any identifiable legal error, nor do I find error in its findings as to matters of fact so far as they have been challenged on this appeal. The Tribunal, in my view, did not err either as to relevance, weight or the finding of any particular matter of fact nor did it misapprehend a matter of which it had to be satisfied or take into account any irrelevant circumstance. I do not consider that the resultant penalty imposed upon the plaintiff by reason of the partial relief afforded to it by the Tribunal involved any misjudgment of the culpability or seriousness of the plaintiff's contraventions or was otherwise in error except in one respect.
Conclusion
131 As I have said earlier, the Tribunal not only found the primary error, but in addition, the further errors to which I have already referred. The Tribunal concluded there should be no penalty in respect of the two re-financing contracts on the basis that any such error in the re-financing was merely consequential upon the earlier error. However, when one turns to the Tribunal's assessment of penalty, the Tribunal does not discriminate between contracts affected by the primary error alone and those affected by the further errors to which I have referred. It says:-
One error
132 The reference to no "penalty" in respect of the two re-financing contracts would seem to indicate that the Tribunal, by this blanket order, intended to deal with all other contracts and all other contraventions or errors in such a fashion that it was not intending to disregard the contraventions and errors which occurred in addition to the primary error. This would seem to indicate that the Tribunal would have applied penalties to contracts unaffected by the additional contraventions and errors of the same order as that applied to contracts so affected. The Tribunal had held that the additional contraventions "will form part of the Tribunal's consideration of relevant circumstances" and particular held in relation to six of the contracts which had the error of incorrect addition of the amount financed, that that error would be taken into account. It is submitted that the Tribunal thereby erred with respect to a question of law, that is, that the penalty should reflect the circumstances of each individual contract at least insofar as the contraventions differed from one contract or class of contract to the other. 133 I return to the decision of the Court of Appeal in Canham (supra) in which appeals and summonses challenging determinations by the Commercial Tribunal, being appeals pursuant to s.20(5), similar to that brought here had been dismissed at first instance by Carruthers, J. 134 The relevant contraventions included a common contravention by way of breach of s.36(1)(e) of the Act which required that a loan contract should include a statement of the annual percentage rate in accordance with s.38. As to such a contravention, similar to the contraventions here found, his Honour Kirby, P. said (at 249):-
"It is the Tribunal's opinion that the contraventions and the relevant circumstances in which they arose in terms of ss.85 and 86 are sufficiently serious to warrant penalty. It is the Tribunal's view that the liability of the respondents should be increased by the amount of the credit charge under his or her contract determined by applying an annual percentage rate which is equivalent to 82% of the rate stated in the particular contract to the amount financed on the contract over a period for which the amount of finance or any part thereof, remained owing and the Tribunal proposes to make orders accordingly."
135 However, that case went on to deal with the problem that arose where certain of the contraventions occasioned consequential contraventions and contraventions different in kind and additional to the common errors to which his Honour had referred. The complaints of those errors had either been dismissed as not constituting in law a contravention or, although accepted and acknowledged as an additional and different contravention, did not attract different and additional penalties. 136 In addition as to the consequential or "flow on" contraventions, the Tribunal simply made an order similar to that which it had made for the common errors by adopting (with certain exceptions said not to be relevant to those proceedings) a single determination at the same rate. 137 Whilst his Honour noted that (at 265F):-
"Pursuant to s.42 of the Act, such a failure to comply with s.36 resulted (subject to s.85 of the Act) in relief to the debtor. By virtue of s.42, he or she was 'not liable to pay to the credit provider the credit charge under the contract'. This relief was the sanction devised by parliament to instil in credit providers, such as AGC, stringent conformity with the obligations imposed by the Act including, relevantly, the obligation of disclosure under s.36(1)(e).
Section 85 of the Act, however, permits the credit provider to apply to the Tribunal for an order 'increasing the liability of the debtor to the credit provider'. Section 86 permits the Tribunal, in a determination under s.85, to make various determinations in respect of specified regulated contracts, including of a specified class, entered for a specified time. Obviously, this provision was enacted out of recognition of the fact (as reflected in the circumstances of this case) that common errors are likely to replicate themselves in credit contracts until they come to notice and occasion applications for relief against what would otherwise be the drastic operation of s.42.
It was for such an application for relief that AGC approached the Tribunal. It conceded the common error. It proved various steps which had been introduced by way of training and instruction to avoid repetition. The Tribunal, in all of the cases made common orders increasing the amount of the credit charge to be paid by the various debtors to the equivalent of 75 per cent of the percentage rate disclosed in the contract. It also ordered AGC to pay the costs of the debtors, as taxed on the special scale of the District Court.
If this had been all, Carruthers, J. and this court would not have been troubled by the case. Overall, the Tribunal's decision appears a sensible implementation of the policy of the Act. AGC has brought to notice, on its own initiative, the error which had occurred. It has sought relief. It has been provided with relief which effectively reinstated the contracts with the 298 debtors. But it was penalised as to 25 per cent of its charges by way of a civil penalty designed to bring home to it the obligation to conform strictly with the requirements of the Act. Doubtless this sanction, and a fear to avoid its repetition, triggered the improvement of procedures adopted by AGC as described in the evidence."
138 And that in circumstances where no particular losses were found, s.85 invoked a very broad jurisdiction, he continued:-
"The only limitation imposed by the Act upon the discretion conferred on the Tribunal is that contained in s.85(3) of the Act."
139 His Honour went on to hold that (at 266):-
"And s.86 contemplated that a general order could be made in respect of a number of contracts where contravention of the Act had been proved. This was no more than a recognition by the legislature of the likely commonality of errors of practice, once they occur, creeping into a large number of transactions.
All of the foregoing matters may be conceded. But it remains to be said that the discretion provided by s.85 and s.86 is limited by the general rule that it must be exercised for the purpose for which power has been provided by parliament to the donee of that power. It is to relieve a credit provider from the prima facie rule established by s.42 of the Act. That rule, in turn, relieves the debtor from the liability to pay the credit provider the credit charge under the contract where, relevantly, the contract is not in accordance with s.36 of the Act. This may be called a 'windfall' to the debtor by some. But, viewed in another light, it is a peculiar and special sanction which parliament has designed for the high purposes which the reform of credit legislation in this country set out to achieve. In my view it is a mistake to draw a sharp distinction between 'windfalls' to the borrower and 'penalties' upon the credit provider. The former is but the means of achieving the latter. No doubt it was hoped that, by this procedure, borrowers would be educated in their rights and provided with a stimulus to assert them. Creditors, to avoid such 'windfalls', would be stimulated into strict compliance with the Act. To that extent, some windfall benefit to borrowers (if the effect of s.42 is properly to be so described) is inevitable in penalties upon credit providers. The one goes with the other.
Given that each individual contract is one governed by, and subject to, the Act and may be subject to an application to the Tribunal, it is not immediately apparent why, where different defaults in compliance with the Act are demonstrated, it is a proper exercise of the discretion to relieve the credit provider as s.85 and s.86 allow to ignore the differences and fix a common rule. Such common rules are generally the business of legislators, not of tribunals exercising quasi judicial powers. … Some of the matters required by s.36(1) to be included in a credit sale contract are relatively insignificant. Thus a failure, in accordance with s.35(1)(a), to insert the date in the contract would appear trivial in at least most cases. But the failure to state the credit charge and the amount finances (under s.35(1)(e)) is arguably more serious. More serious still, as it seems to me, is the failure to disclose that a commission charge is payable (s.35(1)(i)). There is a multitude of matters that must be covered. They are not all equally important. Default in respect of them is not equally serious. To ignore the variety of defaults and to fix upon a common penalty whatever the circumstances of each contract is not prima facie acceptable, given the relief which s.42 of the Act affords."
140 Then (at 267):-
"That would undermine the scheme of providing for sanctions by way of civil penalties and the self-evident gradation in the seriousness of departures from the requirements of the Act which calls for the calculus of penalty under s.85 and s.86 which is sensitive to the actual defaults proved."
141 His Honour was of the view that manifest error would constitute an error of law and that such orders as were there and are here in question "cannot fulfil the purposes for which the relieving power under s85 and s.86 of the Act were afforded to the Tribunal by parliament" (at p.268). The other members of the Court of Appeal shared those views. I am bound by that decision and consonant with it conclude that here, too there has been error. 142 I am therefore of the view that the Tribunal did fall into legal error. It would appear that at least insofar as the contracts which only contained the primary error were concerned, there has been decided a question with respect to a matter of law erroneously for the fixing of the appropriate extent of relief. It is not, however, possible to say in the absence of the exposure of the Tribunal's reasoning in more detail what the effect of the error may have been. 143 In the circumstances, the appropriate course I should take is to remit the matter, ordering a re-hearing at least to the extent that the Tribunal should refix the penalty in accordance with what was laid down in Canham (supra). It is not appropriate that this court should itself vary the penalty by making an order under s.20(6)(a) since the legislature has confided to the Tribunal the particular application of matters of policy and normative judgment to which I have earlier referred. 144 I therefore consider I should make the orders 1 and 5 sought in the summons but, subject to hearing the parties, with such appropriate qualification as would be necessary to require the Tribunal to correct the error. I consider that the appeal should be upheld to that extent and to that extent only. Although it has been unsuccessful on almost all the issues involved in the proceedings, the appellant in that respect succeeded. A question may arise as to costs and as to the form of appropriate orders. If so, I will hear the parties on those matters in the event that agreement cannot be reached.
"Particularly if the discretion is one conferred by statute it is essential that the decision-maker should exercise it in a way that will achieve the purposes of the statute. Here, those purposes include the reflection, at least in a general way, in the orders made, relevant to the particular contracts which will otherwise have the consequences for which s.42 of the Act provides, viz, of relieving orders that take into account the departures from the Act shown in the particular cases."
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[2004] NSWCA 312
Smith v Collings Homes Pty Ltd
[2004] NSWCA 75
Australian Rail Tram and Bus Industry Union v Aurizon Operations Ltd
[2023] NSWSC 484
Cases Cited
12
Statutory Material Cited
0
ANZ Banking Group Ltd v DG of the Department of Fair Trading
[1999] NSWCA 278
Minister for Immigration and Border Protection v Singh
[2016] FCAFC 183
R v Henry
[1999] NSWCCA 111