Department of Consumer and Employment Protection v Chequecash Pty Ltd - [2009] WASC 18

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: DEPARTMENT OF CONSUMER AND EMPLOYMENT PROTECTION -v- CHEQUECASH PTY LTD [2009] WASC 18

CORAM: SIMMONDS J

HEARD: 18 DECEMBER 2008

DELIVERED : 10 FEBRUARY 2009

FILE NO/S: GDA 8 of 2008

BETWEEN: DEPARTMENT OF CONSUMER AND EMPLOYMENT PROTECTION
Appellant
AND
CHEQUECASH PTY LTD (ACN 089 648 377)
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :MEMBER T CAREY
Citation  :DEPARTMENT FOR CONSUMER AND EMPLOYMENT PROTECTION AND CHEQUECASH PTY LTD [2008] WASAT 168
File No  :CC 1726 of 2007

Catchwords:

Appeal by leave from decision of the State Administrative Tribunal to the court exercising its jurisdiction other than as the Court of Appeal on a question of error of law - Whether error of law in construction of Consumer Credit Code (WA) s 15(E) for purposes of application for a civil penalty for contravention of that provision - Whether no possibility decision of the State Administrative Tribunal would have been otherwise because of unlawfulness in relation to collection of factual material in support of the proceeding before the Tribunal - The discretion referred to in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 and State Administrative Tribunal Act 2004 (WA) s 32(2)(b)

Appeal by leave from decision of the State Administrative Tribunal to the court exercising its jurisdiction other than as the Court of Appeal on a question of error of law - Procedure where respondent corporation was not legally represented - Rules of the Supreme Court 1971 (WA) O 4 r 3(2)

Legislation:

Consumer Credit (WA) Act 1996 (WA), s 5
Consumer Credit Code (WA), s 5, s 6, s 12, s 15, s 26, s 100, s 102
Credit (Administration) Act 1984 (WA), s 53A, s 54
Road Traffic Act 1974 (WA), s 63
Rules of the Supreme Court 1971 (WA), O 4 r 3
State Administrative Tribunal Act (WA), s 32, s 105

Result:

Appeal allowed
Matter to be remitted to the State Administrative Tribunal for reconsideration with possibility for further evidence

Category: B

Representation:

Counsel:

Appellant: Mr C P Shanahan SC
Respondent: Mr S Gorman

Solicitors:

Appellant: Department of Consumer & Employment Protection
Respondent: Mr S Gorman

Case(s) referred to in judgment(s):

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
Department for Consumer and Employment Protection and Chequecash Pty Ltd [2008] WASAT 168
Edelsten v Investigating Committee of New South Wales (1986) 7 NSWLR 222
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115
Pearse v Pearse (1846) 1 De G & Sm 12; 63 ER 950
R v Edelsten (1990) 21 NSWLR 542
R v Ireland [1970] HCA 21; (1970) 126 CLR 321

SIMMONDS J:

Introduction

This is an appeal by leave from a decision of a non-judicial member of the State Administrative Tribunal (the SAT or the Tribunal). The decision was made on an application by the Department of Consumer and Employment Protection (the Department) to the SAT to impose a civil penalty on the respondent for contraventions of the Consumer Credit Code (WA) (the Credit Code) s 15(E). The decision of the SAT was to make a declaration that the respondent had not contravened that provision and otherwise to dismiss the application.
This appeal raised questions about the construction and application of the Credit Code s 15(E) (the construction question); the procedure to follow in an appeal in which, as in this one, the respondent is a company not represented by a solicitor (the procedure question); and whether or not the SAT would, in the proper exercise of its responsibilities, have decided that the evidence in support of the Department's application could not properly be considered (the evidence question).
I have concluded, based on my answers to the construction, procedure and evidence questions, that the appeal should be allowed, and the matter remitted to the SAT for a hearing taking account of the following reasons and with an allowance for further evidence to be submitted, at least to the extent I will indicate.
My reasons are set out as follows.
First, I describe the background to the application for leave to appeal. I then describe the appeal, before turning to the procedure question. I next consider the construction question, before turning to the evidence question. The final section of my reasons sets out my conclusions and call for submissions as to orders.

Background

The initial material in this section of my reasons is largely taken from the reasons in the decision of the SAT appealed from, Department for Consumer and Employment Protection and Chequecash Pty Ltd [2008] WASAT 168 (Member Carey) (Chequecash). I then describe other evidence before the SAT to which Chequecash makes no reference.
The relevant background facts, for my purposes, are described in Chequecash [5] ‑ [9] as follows, referring among other things to the Credit (Administration) Act 1984 (WA) (CA Act) and to the Credit Code:
The parties filed a statement of agreed facts. That statement usefully sets out many of the facts pertinent to the matter, and for that reason, is reproduced here in full. In the following section of these reasons I will supplement the agreed facts with some further facts or observations arising on the evidence produced by the parties.
1.At all material times, the respondent was the holder of a credit provider's licence pursuant to the Credit (Administration) Act 1984 [WA] and carried on business as a credit provider trading as Financial Express Highgate, Financial Express Morley and Financial Express Victoria Park.
2.Between the period approximately 1 August 2002 and 8 December 2007 the respondent entered into 13,525 written credit contracts from its Highgate, Morley and East Victoria Park offices with various individual consumers of which 3,443 were contracts which charged interest (the credit contracts).
3.The credit contracts each included the following clauses:
1.1Balance means the difference between all amounts credited and all amounts debited to the Customer under this Contract.
…
1.5Daily Balance means the Balance at the end of a day.
…
5.Interest Charges
5.1The annual percentage rate that applies to this Contract is set out in Item 4 of the Loan Summary …
5.2The daily percentage rate is the Annual Percentage Rate Divided by 365.
5.3Interest charges, including default interest charges, will be calculated on a daily basis by applying the daily percentage rate to the Daily Balance.
4.As part of its proactive compliance activities in 2007, the applicant identified that the respondent had incorrectly calculated interest under a number of the credit contracts. This included calculations where the amount of interest specified as payable under the credit contract was greater than the actual interest when calculated in accordance with cl 5 of the credit contracts. This resulted in borrowers being charged interest which was greater than the interest due under the credit contracts and which also breached the provisions of the Consumer Credit (Western Australia) Code (the [Credit] Code).
5.Of the 3,443 credit contracts which charged interest, 989 had overcharged interest affecting 320 individual consumers in total.
6.There were also a number of credit contracts where interest was undercharged. The applicant initially obtained a sample of 25 contracts from the respondent. Of these, 5 credit contracts were for business purposes and therefore not subject to the Credit Code, 4 did not charge interest, 10 overcharged interest by $153.80 and 6 undercharged interest by $3,344.92.
7.On 23 August 2007, the applicant wrote to the respondent demanding a written undertaking by no later than 6 September 2007 that the respondent would, from 6 September 2007, at the latest, ensure that interest was calculated and correctly disclosed in accordance with the [Credit] Code.
8.On 27 August 2007, the respondent wrote to the applicant advising that the interest component had been deleted from all credit contracts subject to the [Credit] Code pending development of a program which complied with the [Credit] Code. The letter also stated there was no intention to contravene the [Credit] Code.
9.On 5 September 2007[,] the applicant wrote to the respondent seeking details of the respondents' [sic] proposal to compensate borrowers and requesting the respondent provide written advice by 13 September 2007 of the timeframe in which it would carry out the activities necessary to identify and compensate affected borrowers.
10.On 10 September 2007[,] the respondent wrote to the applicant advising it hoped to develop a program to identify interest overcharged within four to six weeks and that in the meantime manual calculations on less complicated accounts would commence.
11.The applicant filed this application on or about 29 October 2007.
12.The respondent wrote to the affected consumers in or about December 2007, advising of the error and that the consumers would be refunded the overcharged interest.
13.The total amount of interest overcharged by the respondent was $23,384.51. Most of this amount has now been refunded by the respondent to its customers.
14.The respondent's software technicians have now rectified the programming defect which led to the overcharging so that this does not occur again.
15.The respondent admits that it has contravened s 15(E) of the [Credit] Code.
Further facts and observations
According to the respondent's Managing Director, Mr Gorman, the admitted excess interest charges occurred by reason of the fact that the computer program used to process loans did not discriminate between those loans which were repaid in full at the end of the loan period and loans where the customer made one or more repayments of the principal amount during the loan period. Therefore, the amount of interest charged continued to reflect the total principal amount in such cases of 'divided payments'. He said that of the 934 contracts with interest errors, only 246 contracts had an interest error of more than $20.
Mr Gorman also explained that the respondent's computer program was set up originally to process loans on the basis of repayment in full being made at the end of the loan period. According to Mr Gorman, the computer program was examined by the company's solicitors and accountants who advised that it was suitable for processing loan transactions 'inside the ([Credit] Code)' ‑ a reference to credit contracts subject to the provisions of the [Credit] Code. What is not explained is why when part repayments of the principal commenced it was not readily appreciated that it would be necessary for there to be a recalculation of interest charges in accordance with cl 5.3 of the credit contract, and to the extent that this was not something the computer program could itself do, that the recalculation would need to be done manually. Having said that, no allegation is made that the error was wilful. Rather, the applicant put the respondent's failure in terms that:
'The respondent did not have systems in place to monitor and ensure that interest under the credit contracts was calculated correctly'.
Alleged breach of the [Credit] Code
In the course of considering the parties' competing submissions regarding penalty for admitted contraventions of s 15(E) of the [Credit] Code, it has been necessary to reflect on the nature of the contraventions as the parties have advanced them. Section 15(E) provides:
15.Matters that must be in contract document
…
(E)Total amount of interest charges payable.
The total amount of interest charges payable under the contract, if ascertainable (but only if the contract would, on the assumptions under sections 158 and 160, be paid out within 7 years of the date on which credit is first provided under the contract).
By reason of s 102(2) of the [Credit] Code, the Tribunal may make an order requiring the credit provider to pay an amount as a civil penalty if it is of the opinion that the credit provider has contravened a 'key requirement'. Section 100(1) prescribes that s 15(E) is a key requirement. The Tribunal must on an application for a civil penalty declare whether or not the credit provider has contravened a key requirement: s 102(1) [5] ‑ [9].
I should note that the appellant did not contend before me that the agreed fact in Chequecash [5] numbered '15', quoted above, should have any bearing on this appeal.
I further note that the Credit Code of which s 15(E) is a part is made under Consumer Credit (WA) Act 1996 (WA) s 5. By that provision the Credit Code has the force of law in this State. A contract under which credit is or may be provided, being the provision of credit to which the Credit Code applies, is a 'credit contract': the Credit Code s 5. A provision of credit to which the Credit Code applies is described in the Credit Code s 6. It appears to be common ground before me, as it was before the SAT, that each credit contract for which a declaration of contravention had been sought was a 'credit contract' within s 5.
I now need to refer to some material to which the SAT made no express reference in its decision, but which it is common ground was before the Tribunal. The material contained further content of the 'contract document' in this case for the purposes of the Credit Code s 15.
For that material I have drawn on the documents contained in the 'Agreed Bundle of Documents' before the SAT and described as 'a sample credit contract' (the credit contract). I took it to be common ground that each credit contract for which a declaration of contravention had been sought was in the same form as the credit contract.
The meaning of 'contract document' for the purposes of the Credit Code s 15 is in my view to be taken from the Credit Code s 12(1) and (4) which are as follows:
(1)A credit contract must be in the form of ‑
(a)a written contract document signed by the debtor and the credit provider; or
(b)a written contract document signed by the credit provider and constituting an offer to the debtor that is accepted by the debtor in accordance with the terms of the offer.
…
(4)In the case of a contract document consisting of more than one document, it is sufficient compliance with this section if one of the documents is duly signed and the other documents are referred to in the signed document.
The credit contract included a document headed 'You Have Made an Offer to Borrow' which, under the heading 'Express Advantage Loan ‑Conditions' (the loan conditions), contained among other provisions cl 1.1, cl 1.5, cl 5.1, cl 5.2 and cl 5.3, clauses referred to above as agreed fact numbered '3' [5] in Chequecash. This document in which the loan conditions appeared is the first document under the section heading 'Accompanying documents for 'Express Advantage Loan''.
The second document under the section heading 'Accompanying documents for 'Express Advantage Loan' is entitled 'Information Statement' (the information statement). It appears that the respondent intended the information statement to form part of the loan conditions but to be treated differently from the rest of the loan conditions. This is evident from the legend at the beginning of the information statement ‑ 'The following information does not form part of the loan contract' ‑ and from a further document I now reach.
This further document also formed part of the credit contract, as will be explained shortly. The further document was headed 'Offer of Contract' (the offer of contract). Immediately under that heading the following appears:
Completion of this document does not constitute a contract until the Credit Provider accepts the offer by endorsing it's [sic] acceptance on the offer. Provided the Credit Provider accepts this offer, a contract will come into existence on the terms and conditions contained in the 'Offer of Contract' and 'the Conditions'.
I, the person named as the Customer in item 1.3 of the 'Offer of Contract', offer to borrow the amount of credit from the Credit Provider and enter into an 'Express Advantage Loan' with the Credit [P]rovider on the terms and conditions set out in this document.
The offer of contract, unlike the loan conditions, provided for a signature by each of the parties, and indeed bore one by the 'Customer' (the debtor under the credit contract) and the 'Credit Provider' (the respondent).
The offer of contract also contained under the heading 'Borrower's Declaration' the following:
My RIGHTS and OBLIGATIONS
2.5.I understand that, prior to signing, this Offer is to be considered only as a Pre‑Contractual Statement.
2.6.Financial Express (the Credit Provider) has provided me with the documents:
a.'Express Advantage Loan ‑ Offer of Contract' which contains a section called 'Loan Summary' and
b.'Express Advantage Loan ‑ Conditions' which contains a section called; 'Information Statement - Things You Should Know About Your Proposed Credit Contract'
2.7.I have read the documents referred to in paragraph (2.6) above and I understand my rights and obligations under those documents.
2.8.I understand that the amount of the Loan advanced includes the principal, interest, fees, charges and costs applicable to the Loan at that time.
2.9.I understand that the loan is a Fixed Rate Loan and in the event of an early payout the interest rebate will be as a percentage relative to the time the Loan has been in effect.
2.10.I understand that the Setup Fees and all Charges associated with the Loan are Not Refundable.
2.11.I am aware of my obligation to immediately inform Financial Express of any change in my financial position.
I conclude then that the credit contract was made up of the offer of contract, and at least so much of the loan conditions as did not include the matter in the information statement. In any event, my inspection of the information statement revealed nothing relevant to this appeal, nor was anything relevant drawn to my attention.
In relation to one credit contract, I note that in the offer of contract under the heading 'Loan Summary' four items numbered 1.1 ‑ 1.4 appeared. Item 1.4 was entitled 'Financial Table' (Item 1.4). Under that heading in the field labelled 'Number of Payments Reqd' appeared the number '3'. Also under that heading in the field labelled 'Interest Applicable' appeared '$202.47'. It is common ground that that amount was greater than the amount calculated in accordance with cl 5.3 of the credit contract, and thus greater than the amount permitted under the Credit Code s 26(1). It also appears to be common ground that a similar misstatement occurred in the other credit contracts for which a declaration of contravention was sought, all of which provided, as the above offer of contract did, for more than one repayment. The significance of this aspect of the credit contracts will shortly become apparent.
The basis for the decision in Chequecash in my view sufficiently appears as follows:
On the basis of the agreed facts, the relevant clause in all the credit contracts is cl 5.3. There is no suggestion that that clause misstates the interest which is actually payable. To the contrary, the applicant has gone to some lengths to demonstrate that the respondent has been guilty of overcharging interest as against the standard for the correct charge, being that set by cl 5.3. The respondent has admitted the overcharging, and attempted, and in almost every case succeeded in its attempt, to credit the account or refund the customer the amount overcharged. In these circumstances, and despite the respondent's admission of such contravention, there can be no contravention of s 15(E) of the [Credit] Code, which, as I have said, is concerned solely with accuracy in credit contracts of providing for interest charges.
By a letter from the Executive Officer of the Tribunal dated 14 July 2008, the parties were invited to provide written submissions in response to the finding referred to in the previous paragraph, and both parties availed themselves of the opportunity. The nub of the submission from the applicant's legal representative is contained in 2 paragraphs which are reproduced here:
'The Department maintains that the Respondent breached s 15E of the [Credit] Code in that it failed to calculate interest in accordance with s 26(1) (a) of the [Credit] Code as a result of which the credit contracts contained a misstatement of the total interest payable and consumers were overcharged interest. Specifically, as set out in paragraph 1(c) of the Department's application filed with the Tribunal on 29 October 2007, the Respondent applied a daily interest rate on the principal amount of the loan instead of on the unpaid daily balances as required by s 26(1)(a).
Accordingly, the Department submits that s 15E has been breached as the credit contracts misstated the total interest charges payable as being more than the amounts which they were entitled to charge consumers in contravention of s 26(1) (a).'
I must say that I have some difficulty in grasping what it was that was being said in these paragraphs. That difficulty is contributed to in no small measure by the fact that the nature of the asserted misstatement in the credit contract is put on different bases. The first sentence asserts that the misstatement arose as a consequence of the respondent's failure to calculate interest in accordance with a limit imposed by s 26(1) of the [Credit] Code, whereas the second sentence suggests that the 'credit contracts misstated' the charges when reference is made to s 26(1).
The applicant's invocation of s 26(1) of the [Credit] Code further clouds the issue. Section 26(1) is in the following terms:
'The maximum amount of an interest charge that may be imposed or provided for under a credit contract is ‑
(a)where only one annual percentage rate applies to the unpaid balances under the contract - the amount determined by applying the daily percentage rate to the unpaid daily balances; or
(b)in any other case - the sum of each of the amounts determined by applying each daily percentage rate to that part of the unpaid daily balances to which it applies under the contract.'
Far from misstating the interest payable by providing for charges in excess of what is permitted by the formula prescribed by s 26(1) allows, the relevant clause in the credit contracts, cl 5.3, reproduces that formula. This leads to yet another difficulty with the applicant's position, namely, that had the respondent sought to pursue, in any forum, recovery of any charges in excess of the prescribed maximum, it would have failed. Its rights would have been limited to the maximum prescribed by the [Credit] Code (and by cl 5.3). In those circumstances, an argument of misstatement of the contractual term, based upon the discrepancy between the amount for which the contract provided and the amount charged (though not ultimately recovered), is untenable [11] - [15].

I note that the quotation in Chequecash [11] recites the submission 'from the applicant's legal representatives' and refers to Annexure B 'paragraph 1(c) of the Department's application filed with the Tribunal on 29 October 2007'. I reproduce that paragraph:
Grounds of application
1.From time to time since about 1 November 2001, in some but not all cases, where the Respondent provided credit under a credit contract as defined in s5 of the Code, the Respondent failed to comply with s15(E) of the Code, being a 'key requirement' pursuant to s100(1)(d) of the Code (Affected Contracts).
Particulars
…
(c)The Respondent disclosed in each of the Affected Contracts an incorrect statement of the total amount of interest charges payable under the contract. Each of those total amounts was incorrect as the Respondent applied a daily interest rate on the principal amount of the loan instead of on the unpaid daily balances as required by s26(1)(a) of the Code. This was despite the fact that there was an express clause in each credit contract which provided that interest charges were to be calculated on a daily basis by applying the daily percentage rate to the daily balance.
I note at this point that this paragraph in my view makes it clear that the appellant rested its allegation of contravention of the Credit Code s 15(E) on that part of each of the credit contracts that appeared in Item 1.4 in the field labelled 'Interest Applicable'. This in my respectful view made it clear that 'the relevant clause in the credit contracts' upon which the appellant relied before the SAT was not cl 5.3 but rather that relevant field in Item 1.4 that I have just identified.

This appeal

The State Administrative Tribunal Act 2004 (WA) (SAT Act) s 105(3)(b) provides that an appeal against a decision made by the SAT constituted by a non-judicial member or members lies to the Supreme Court exercising its jurisdiction other than as the Court of Appeal. By s 105(1) an appeal against a decision of the SAT may only be by leave of the court. By s 105(2) such an appeal may only be on a question of law.
By appeal notice dated 21 August 2008 the Department applied for leave to appeal the decision in Chequecash on the following grounds:
1.The State Administrative Tribunal, constituted by a non‑judicial member, erred in law when it declared that the respondent had not contravened the 'key requirement' at subsection 15(E) of the Consumer Credit (Western Australia) Code ('the Code').
Particulars
A.It was not in dispute that the respondent had overcharged the total amount of interest payable on 989 credit contracts ('overcharged contracts') in the sum of $23,384.51 affecting 320 consumers, including a credit contract accepted by the Tribunal as being typical of the overcharged contracts ('the Typical Contract').
B.The total amount of interest charges payable stated at Item 1.4 of the Typical Contract was not calculated in accordance with the Code and thus breached subsection 15(E) of the Code.
C.The respondent used the same method to calculate and charge interest on the overcharged contracts as it did on the Typical Contract.
2.When seeking to determine whether there had been a breach of subsection 15(E) of the Code the Tribunal also erred in law when, in determining liability, it took into account the respondent's refund of, and attempts to refund, overcharged interest payments to customers when such matters are solely relevant to penalty.
I note that the reference to 'the Typical Contract' in those grounds is to what I have called the credit contract.
By orders made on 1 September 2008 leave to appeal was granted by McKechnie J. There was no appearance by or for the respondent.
His Honour also made a number of programming orders for this appeal. Among the programming orders, his Honour required outlines of submissions by the dates indicated. The only submissions filed within those dates were for the appellant. However, further submissions, for both parties, were provided to the court subsequently, going to a matter discovered after the leave to appeal was granted. That matter was that the appellant had failed to make a valid delegation of authority or other authorisation to the officers of the appellant who had collected the factual material on which the appellant relied before the SAT. This is the subject of the evidence question. In addition to its submissions on the evidence question, the appellant filed two affidavits.
Although the respondent did not appear before McKechnie J at the hearing of the application for leave to appeal, the respondent did file a notice of intention to participate in the appeal, but without legal representation. The submissions of the respondent referred to above were signed by 'Stephen Gorman CHEQUECASH PTY LTD'. Mr Gorman was present at the hearing before me. He indicated he was the managing director of the respondent. He sought to make oral submissions to me. This, and the written submissions for the respondent, gave rise to the procedure question, which I turn to now.

The procedure question

The Rules of the Supreme Court 1971 (WA) O 4 r 3 reads as follows:
(1)Subject to paragraph (2) and to Order 70 Rule 2, any person (whether or not he sues as a trustee or personal representative or in any other representative capacity) may begin and carry on proceedings in the Supreme Court by a solicitor or in person.
(2)Except as expressly provided by or under any Act a body corporate may not begin or carry on any such proceedings otherwise than by a solicitor.
A convenient account of how O 4 r 3(2) is to be applied is in my view to be found in Civil Procedure WA (at 22 January 2009) [4.3.1] and [34.5.2] as follows:
[4.3.1] Corporations
Rule 3 provides that a corporation must commence or carry on proceedings by a practitioner. A grant of leave to commence proceedings on behalf of a company pursuant to s 237 of the Corporations Act 2001 (Cth) does not alter that position: HPM Pty Ltd v Fear (2002) 171 FLR 12 at 12, 13, 18; [2002] WASCA 249; BC200205263 at [1], [2], [24].
Additionally, once proceedings are commenced a corporation may only defend them by a solicitor because O 12 r 1(2) prohibits the entry of an appearance or the filing of a defence other than by a solicitor.
These two provisions should be read in close conjunction. The notion of defending an action refers to taking a step in the proceedings or carrying on the action.
The court does not have power to dispense with the explicit requirements of the rules. The result is such that, even in exceptional circumstances, an individual is not at liberty to take a step in the action on behalf of a company: Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd(2000) 22 WAR 372 at 385; 157 FLR 34 at 47; [2000] WASC 178; BC200003906 at [48]; Re Hoffman [2004] WASCA 238; BC200407126 at [1], [2], [13], [14], [16].
See [34.5.2] for the rare circumstances in which an individual may be permitted to appear as an advocate for a corporation.
…
[34.5.2] Corporations must appear by counsel
The normal practice is that a company may only participate in proceedings before the court by a legal practitioner: Frinton & Walton UDC v Walton & District Sand & Mineral Co Ltd [1938] 1 All ER 649; [1938] WN 31. It is suggested that the reasons for the normal practice are much the same as the practice that a natural person must in general be represented by counsel: see [34.5.1A] and Hubbard Assn of Scientologists International v Anderson [1972] VR 340 at 343. However, if the exceptional circumstances so warrant, the court has inherent power in the interests of justice to permit an individual who is not a legal practitioner to appear as an advocate for a company: Arbuthnot Leasing International Ltd v Havelet Leasing Ltd[1991] 1 All ER 591 at 598; [1992] 1 WLR 455 at 462 . Thus an officer of a corporation may be permitted to answer a charge of contempt brought against the corporation (Deen v Stronghearts Pty Ltd (1998) 8 Tas R 432 at 437 ) and a director of a corporation the assets of which are frozen by a Mareva order so that it cannot instruct solicitors can be joined as a party in order to make application for variation of the order: Arbuthnot Leasing International Ltd v Havelet Leasing Ltd [1991] 1 All ER 591 at 599; [1992] 1 WLR 455. When the court considers an application for permission for a company to appear by a layperson at the trial it is a significant consideration that permission has previously been given in the interlocutory proceedings: ACT General Cleaning Co Pty Ltd v Naoum (1996) 67 FCR 361 at 364, 365 (FC). Order 4 r 3(2) prohibits a corporation from beginning or carrying on proceedings otherwise than by a solicitor, and O 12 r 1(2) prohibits a body corporate from entering an appearance or defending proceedings otherwise than by a solicitor. Carrying on or defending proceedings involves taking a step in the proceedings and the court has no power to permit an individual to do so on behalf of a corporation: see Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd (2000) 22 WAR 372 at 385; 157 FLR 34 at 47; [2000] WASC 178; BC200003906 at [48] .
It will be apparent from these materials that a question arose of how, if at all, submissions, whether oral or in writing, could be received at the hearing from the respondent, which was not legally represented.
I cannot readily see how the 'inherent power' referred to in Civil Procedure WA [34.5.2] arises in this case. Further, no other basis for permission was evident to me, and senior counsel for the appellant was not able to suggest one. Senior counsel also indicated, however, that the appellant had no objection to the respondent being heard through Mr Gorman, and no objection to the respondent's written submissions being considered.
At the hearing I concluded that I could consider any point put to me by Mr Gorman through senior counsel for the appellant. Senior counsel had no objection to that manner of proceeding, and for its purposes I permitted Mr Gorman to be seated at the bar table. Any such point I would regard as put to senior counsel for the purpose of the response, if any, to that point senior counsel might make to me.
I appreciate that this was at best a cumbersome manner of proceeding. However, it was one that (combined with my requests of Mr Gorman for information, to none of which senior counsel for the appellant objected, and some requests for information from senior counsel of Mr Gorman) did not appear to work any particular difficulty or other prejudice for Mr Gorman, the respondent or the appellant. Further, I am satisfied that the hearing ventilated all the matters in the written submissions for the respondent.
I turn now to the construction question.

The construction question

For the appellant, it was submitted that Credit Code s 15(E) required the statement of the actual interest charge, as a dollar amount.
The parties accepted that the credit contracts for which a declaration of contravention was sought contained a statement, in cl 5.3 quoted above in Chequecash [5], of the method by which the respondent intended to calculate the interest charge. This view is supported, in my opinion, by the respondent's efforts to credit the accounts of debtors who had been overcharged, as referred to in the statement of agreed facts quoted above in Chequecash. Further, it is accepted that the method stated in cl 5.3, had it been correctly used throughout, would have resulted in the imposition under the credit contracts of a maximum amount within the Credit Code s 26(1), as Chequecash also appears to conclude.
However, the appellant submitted, this is not what the Credit Code s 15(E) required. That provision called for the statement in the credit contract of a dollar amount, being the amount calculated in accordance with cl 5.3. At best the statement of the method for calculating the interest charges in cl 5.3 was a partial attempt in this case to meet the requirement. That attempt failed. That was because, as was common ground, the amount alongside the label 'Interest Applicable' in Item 1.4 was the product of a calculation that applied the relevant interest rate to the sum of the loan plus total charges, without crediting the reduction of that sum by the interim repayment or repayments. That is, the calculation was not on the declining balance basis required by cl 5.3. That basis is apparent when that clause is read with cl 5.1, cl 5.2, cl 1.1 and cl 1.5, all quoted in Chequecash above.
The effect of that error, which also appears to have been common ground, was to overstate the interest payable by the debtors under those credit contracts.
I should note, however, as emerged for me most clearly in an exchange senior counsel and I had with Mr Gorman at the hearing, that there was also, in the case of credit contracts for which there was only one repayment, an error in the statement alongside the label 'Interest Applicable' in their counterpart to Item 1.4. That error, which I will explain shortly, may in fact be one involving an understatement for those debtors of the interest payable under those credit contracts.
In my view the submission of the appellant must be upheld. The analysis in Chequecash in my respectful view fails to give effect to the plain language of the Credit Code s 15(E), the meaning of which is made even clearer by considering the Credit Code s 15(D). That provision reads as follows:
15. Matters that must be in contract document
The contract document must contain the following matters ‑
…
(D)Calculation of interest charges.
The method of calculation of the interest charges payable under the contract and the frequency with which interest charges are to be debited under the contract.
In addition, the SAT's analysis, focussing exclusively as it did on cl 5.3 of the credit contracts, fails to grapple with the other provisions of the credit contract, most notably in Item 1.4 the amount shown in the field labelled 'Interest Applicable'. The appellant had specifically drawn the attention of the SAT to that provision, as I have already indicated.
However, even in the absence of any provision like the amount in the field labelled 'Interest Applicable' in Item 1.4, a contravention of the Credit Code s 15(E) would have been established. That is because there would have been no statement of a dollar amount as s 15(E) required, and cl 5.3 alone does not satisfy that requirement.
Further, the apparent policy of the Credit Code s 15(E) supports the submission of the appellant as to the construction of that provision. That policy appears to be one (particularly when s 15(D) is taken into account) of providing the debtor with a convenient statement of the total amount of his financial commitment (assuming no default) over the period of the credit arrangement constituted by interest charges. Such charges are regulated by the Credit Code pt 2 div 3, of which s 26(1), set out and considered in Chequecash above, forms a part. The appellant accepts that cl 5.3 provides a formula for calculating interest charges in accordance with that Division. Indeed, I note that cl 5.3 or a provision like it is required by the Credit Code s 15(D). However, the legislative policy of s 15(E) appears to be to ensure the provision of the result of that calculation. The legislative view seems to be that this result may be expected to be at least as meaningful to the debtor as the method of calculation.
Further, I note that that result may not be easy to calculate.
This last point was illustrated at the hearing before me. Attempts were made to calculate the exact interest charges under the credit contract using the method in cl 5.3. The offer of contract showed the credit contract was for a 'Loan' of $2 000 with 'Total Charges' of $711.45, an 'Annual Interest Rate' of 29% and three monthly repayments, of approximately equal size, that would include interest, on each of 13 December 2004, 13 January 2005 and 14 February 2005. It was common ground that the total of the interest charges was less than the sum ($202.47) shown in the field labelled 'Interest Applicable' in Item 1.4.
The calculation done for the hearing before me used a monthly interest charge applied to the declining balance, determined on the basis that the total of the 'Loan' plus the 'Total Charges' was reduced by one-third of the total each month. The monthly interest charge was determined as 1/12 of the amount produced by applying the 'Annual Interest Rate' to the total of the 'Loan' plus 'Total Charges'. This method of determining a monthly interest charge was apparently the method used by the respondent's computer programme for determining the interest to be charged under the credit contracts for which a declaration of contravention had been sought.
However, the correct calculation under cl 5.3 was, as became even clearer at the hearing, one that involved applying the daily percentage rate, being the 'Annual Interest Rate Divided by 365' (see the credit contract cl 5.2), to the 'Daily Balance' (see cl 1.5). See also the Credit Code s 25(1) 'daily percentage rate', 'unpaid balance' and 'unpaid daily balance'. It was accepted that the result of the correct calculation (which was not performed at the hearing) was one that was still less than the amount shown on the credit contract in Item 1.4 in the field labelled 'Interest Applicable'. However, that result was less in a different and smaller amount.
The last point would, as Mr Gorman seemed to indicate at the hearing before me, appear to mean that the credit contracts with provision for only one repayment may well have understated for the debtors under those contracts the interest they had to pay. It is perhaps a nice question whether or not the 'key requirement' represented by s 15(E) would not be satisfied in such a case. In any event, as I understand the proceedings below, the appellant did not seek a declaration of contravention in respect of those credit contracts.
It follows that I would uphold the present appeal on the first ground.
In my view, my resolution of the construction question also means I must uphold the appeal on the second ground. I do not see how it is relevant to the question whether or not the Credit Code s 15(E) was satisfied that, after the conclusion of a credit contract and payment of an amount for interest under it, the respondent took it upon itself to adjust the payment by refunding or attempting to refund what it calculated the overcharged amount to be. The question of satisfaction of s 15(E) is to be resolved by reference to the terms of the written contract, not subsequent events.
However, in my view, the adjustment just described was relevant to the matter of whether or not to impose a civil penalty, and if so, of what amount. I return to that matter below.
I turn now to the evidence question.

The evidence question

The SAT Act s 105(9) provides as follows:
(9)The court dealing with the appeal may -
(a)affirm, vary, or set aside the decision of the Tribunal;
(b)make any decision that the Tribunal could have made in the proceeding; or
(c)send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,
and, in any case, may make any order the court considers appropriate.
In Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115, all the members of the Court of Appeal appear to have held the view that where the ground of an appeal from the SAT succeeds, but there is no possibility the matter would affect the outcome before the Tribunal, the appeal should be dismissed. See [15] (Martin CJ); [73] (Buss JA); and [273] (Beech AJA).
The evidence question is whether the SAT would have dismissed the application in any event on the basis that there was no supporting factual material it could properly consider, had it been aware (but was not at the time) that the factual material essential to a finding of contraventions had been gathered in an unlawful manner.

In my consideration of the evidence question, I took the appellant to concede for the purposes of this appeal that, if the SAT, in the performance of its duty in SAT Act s 32(2)(b) (which I set out below), were to have concluded that it could not rely on the factual material, there would have been no or insufficient material to support the appellant's application before the Tribunal. In particular, the SAT would not have considered that a different conclusion was warranted because of the statement of agreed facts and the agreed bundle of documents. It was common ground that both had been prepared and indeed considered by the SAT at a time when the unlawfulness relevant to the manner of collection of the factual material had not been known to either party.
The provisions of the SAT Act, to which senior counsel for the appellant drew my attention as relevant to the matter of excluding evidence that the SAT might otherwise rely upon in making its determination in a case like this one, were s 32(2) ‑ (4). Those provisions read as follows:
(2)The Evidence Act 1906 does not apply to the Tribunal's proceedings and the Tribunal ‑
(a)is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures or the regulations or rules make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)Without limiting subsection (2), the Tribunal may admit into evidence the contents of any document despite non compliance with any time limit or other requirement specified in the rules in relation to that document or service of it.
(4)The Tribunal may inform itself on any matter as it sees fit.
I should note that I was unable to find any other provisions in the SAT Act bearing on the evidence question.
It became common ground at the hearing that the provision of particular importance to the resolution of the evidence question was s 32(2)(b).
I should also note that in my view the evidence question does not, mutandis mutatis, arise for the court itself. The court is not ‑ at least in this case ‑ receiving evidence, either that before the SAT or any other kind, but rather is considering the Tribunal's use of that evidence, or the exclusion of it.
The manner in which the relevant factual material was obtained is described in the affidavits of Adrian Theseira sworn 16 December 2008 and Susan Katherine Hill sworn on the same date.
Mr Theseira deposed that he is currently the manager of the Finance & Valuation Industries Branch of the appellant, and, at the time the factual material was collected from the business premises of the respondent, he was principal proactive compliance officer within the branch. The factual material was collected on two separate occasions. The two entries occurred on 26 April 2007 and 2 May 2007, on which, at least the first occasion, records of the respondent were inspected and copied. On both entries, Mr Theseira was accompanied by another person, who was a proactive compliance support officer from within the branch.
Ms Hill deposed that she is currently a solicitor employed by the appellant, and she annexed a letter from her in that capacity to the respondent dated 16 December 2008. In that letter she informed the respondent that a 'recent audit' of the appellant's 'instruments of authorisation' had
revealed that there was no valid delegation by the Commissioner to the departmental officers pursuant to s 53A of the CA Act when the officers attended Chequecash's business premises on 26 April 2007 and 2 May 2007. There was also no valid authorisation of the officers pursuant to s 54 of the CA Act. This was despite the fact that the officers in question held the genuine belief at the time of the visits that they were properly authorised under the CA Act.
The letter set out in full text the provisions of CA Act s 53A and s 54(1), which are as follows:
53A. Delegation by Commissioner
(1)The Commissioner may delegate to any other person employed in the Department any power or duty of the Commissioner under another provision of the cognate Acts.
(2)The delegation must be in writing signed by the Commissioner.
(3)A person to whom a power or duty is delegated under this section cannot delegate that power or duty.
(4)A person exercising or performing a power or duty that has been delegated to the person under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.
(5)Nothing in this section limits the ability of the Commissioner to perform a function through an officer or agent.
…
54. Power of entry
(1)For the purpose of ascertaining whether the provisions of any of the cognate Acts are being or have been complied with by a credit provider or for the purpose of enabling the Commissioner to prepare a report for the State Administrative Tribunal, the Commissioner, or any other person authorised in writing in that behalf by the Commissioner may -
(a)enter premises where the business of the credit provider or the business of a person with whom the credit provider has a trade or tie agreement, is being carried on;
(b)require the production of records;
(c)inspect and require explanations of any record; and
(d)take notes, copies and extracts of or from any record or statement produced pursuant to this section.
…
Mr Theseira in his affidavit also provided the following, which appears to relate to the 'audit' referred to by Ms Hill [8] and provides additional background information with respect to that audit:
In November 2008, the Branch began to develop a procedural guide on how departmental officers should conduct visits to 'credit providers' in order to determine their compliance with the provisions of the Code. During the development of this guide, the Branch officers conducted an audit and examination of existing authorisations and delegations of the Commissioner's powers under the various Acts administered by the Appellant, including those made under the CA Act.
However, I should add that it was not clear from Ms Hill's affidavit or that of Mr Theseira in what respect the delegation or authorisation was invalid. Was it the failure to have an instrument in writing in either of those respects, the failure of such an instrument to be itself properly executed, or the failure of a properly executed instrument to extend to the activity in question?
As to the letter's reference to the 'genuine belief' of the 'officers in question', I note that Mr Theseira deposed in his affidavit as follows:
At all material times during the preparation for the Visits [the entries of 26 April 2007 and 2 May 2007] and the Visits themselves and until I received the Advice [identified in par 9 as 'there appeared to have been no valid authorisation under s 54 of the CA Act or any delegation of the Commissioner's powers under s 53A of the CA Act at the time of the Visits'] in or about November 2008 I believed that I and other departmental officers employed in the Branch were authorised by the Commissioner to exercise the powers conferred by section 54 of the CA Act [10].
I should add that it was also not clear from Mr Theseira's affidavit on what basis he held the belief that, at the time of the entries on 26 April 2007 and 2 May 2007, he and the other departmental officers employed in the branch were authorised by the Commissioner to do so.
I was not informed of any decision or other action (as under SAT Act s 32(2)(a)) that bore on the application of s 32(2)(b) in the present respect, or indeed any other. My own research has revealed no such decision or other action.
In my view, the SAT, in applying s 32(2)(b) in the absence of any other action under s 32(2)(a), would, as put to me by senior counsel for the appellant, reasonably be expected to derive assistance from the principle associated with Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54. That principle concerns the admission into evidence of material that has been unlawfully obtained, and involves a judicial discretion to exclude such matter.
The Bunning case concerns a prosecution for driving while under the influence of alcohol as described in Road Traffic Act 1974 (WA) (RT Act) s 63 as it stood at the relevant time. In that case a magistrate refused to admit into evidence the result of a breath test conducted in a police station. The RT Act, it was accepted, did not permit the taking of a breath test at that location without there having been a preliminary test by a patrolman who had reasonable grounds to believe a certain state of affairs existed. The patrolman in Bunning had not conducted a preliminary test.
I take the following excerpt from Bunning as a convenient statement of the principle associated with that case. At 72 (Stephen and Aickin JJ) (footnotes omitted), their Honours referred to R v Ireland [1970] HCA 21; (1970) 126 CLR 321, 335 and Pearse v Pearse (1846) 1 De G & Sm 12; 63 ER 950, 957 as follows:
Despite his Worship's citation of the relevant passage from the judgment of the Chief Justice in Reg v Ireland … we do not understand his discretion as in fact having been exercised by reference to the principles there expressed. The Chief Justice there said …:
'Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.'
That statement represents the law in Australia; it was concurred in by all other members of the Court in Reg v Ireland and has since been applied in a number of Australian cases. Its concluding words echo the sentiments expressed long ago by Knight Bruce VC when, in a different yet relevant context, he said, (Pearse v Pearse …):
'The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination, ... Truth, like all other goods things, may be loved unwisely - may be pursued too keenly ‑ may cost too much' (72).
Of particular relevance to the exercise of the discretion referred to above are four factors noted by their Honours in Bunning. All four factors might be said to be relevant for my purposes also.
The first factor from Bunning is whether or not the unlawfulness was deliberate or reckless (78, Stephen and Aickin JJ).
I have already referred to the evidence that the officers in question were not aware of the unlawfulness, which came to light in a later departmental 'audit' as I have indicated. However, I should note that it is not clear from the two affidavits before me whether or not the audit revealed a set of conditions which ought to have been apparent for some time, and, if so, to whom, and for how long. This would of course be relevant to any assessment of recklessness by the appellant or the officers in question. I have noted, as senior counsel for the appellant reminded me, that CA Act s 53A was added by Act No 28 of 2006, which also amended s 54, and that this may have accounted for the developments within the appellant that led to the audit. However, he was unable to give any further details about events leading up to the audit which would shed light on this first factor.
In my view, to the extent I can assess those matters under the discretion referred to in Bunning, the first factor tends against exclusion of the factual material.
The second factor from Bunning is whether or not the unlawfulness bears upon the cogency of the matter unlawfully obtained. At least, if the unlawfulness is neither deliberate nor reckless, if the matter does not so bear, and if other equally cogent evidence untainted by illegality is not available to the prosecution, then the case for exclusion will be weaker (79, Stephen and Aickin JJ). See also R v Edelsten (1990) 21 NSWLR 542, 557 (Carruthers, Allen and Badgery‑Parker JJ).
In this case it appears to me, on the material I have, that the unlawfulness did not bear upon the cogency of the evidence obtained, and equally cogent untainted evidence was not available to the appellant. I consider, as senior counsel for the appellant put to me, that the statement of agreed facts and the agreed bundle of documents both before the SAT tend to confirm both these points.
To the extent that I can assess these matters, under the discretion referred to in Bunning, this second factor tends against exclusion of the factual material.
The third factor from Bunning is the comparative seriousness of the 'offence charged' and of the unlawful conduct by the law enforcement authorities: the seriousness of the offence goes not only to whether or not it is a serious crime, but, even if the offence is not of that kind, whether or not there is a legislative 'concern' with the offence (see 80, Stephen and Aickin JJ).
Here, of course, there was no 'offence charged'. However, it seems to me, in view of the liability to a civil penalty in an amount a credit provider may be required to pay (see the Credit Code s 102(2)), this factor is relevant. I also note the reference to Bunning (although not this factor) in Edelsten v Investigating Committee of New South Wales (1986) 7 NSWLR 222, 231 (Lee J), a case not clearly involving a prosecution for an offence.
In the present case, the Credit Code identifies the obligation in s 15(E) (together with other obligations such as that in s 15(D)) as a 'key requirement' (see s 100). It is only to contraventions of key requirements that the civil penalty provision s 102 applies. I consider those two features of the legislation to be indications of legislative 'concern' for the s 15(E) requirement.
Comparing this evaluation of the seriousness of the obligation created in the Credit Code s 15E with the seriousness of the unlawful conduct in obtaining the factual material, as best I can assess that conduct, I consider that, under the discretion referred to in Bunning, the present factor makes the case for exclusion of the factual material weaker.
The fourth factor from Bunning is whether the nature of the legislative concern is to restrict the conduct of the law enforcement authorities in question. I understand this factor to call for an inquiry into whether evidence gathering by unlawful conduct is the central concern of the legislature, or something else is that concern, such as interference with personal liberty (see 80, Stephen and Aickin JJ).
In this case, evaluation of this factor is made more difficult than it otherwise would be, because the precise nature of the unlawfulness is not made clear, as I have explained. However, it seems to me that the requirements of CA Act s 53A and s 54 are directed more to matters of proper accountability within government than to evidence gathering without proper authorisation.
Doing the best I can, under the discretion referred to in Bunning, the present factor in my view makes the case for exclusion of the factual material weaker.
In my overall view of the four factors relevant to the discretion referred to in Bunning, it is, at the least, possible that the factual material would not be excluded in the exercise of that discretion notwithstanding the unlawfulness.
I have noted from Cross on Evidence [27295], a section commended to me by senior counsel for the appellant. That section at 23 January 2009 included the statement that '[t]he authorities on the admissibility of evidence procured in consequence of an illegal search or other unlawful act are uniformly in favour of its reception' (footnote omitted). However, I must also bear in mind the context in which I am considering this matter. It is that of the evidence question which I have described, involving as it does the application of SAT Act s 32(2)(b). It is not clear to me that the tendency, just described, not to exercise the discretion referred to in Bunning to exclude evidence would necessarily obtain in respect of the exclusion of evidence under s 32(2)(b).
However, having borne that matter in mind, I cannot conclude, in the terms of Mijatovic, that, because of the unlawfulness in this case, there is no possibility that the ultimate decision of the SAT in Chequecash would have been any different.

Conclusion and call for submissions as to orders

I have concluded that this appeal must be allowed. It follows in my view that the decision in Chequecash must be set aside.
The question then arises of how I should proceed under SAT Act s 105(9).
Senior counsel for the appellant invited me to determine at least the matter of contravention (and, I presume, that, if I concluded I was able to find contraventions, I should so declare), leaving, if I considered it appropriate, the determination of a civil penalty to the SAT.
However, I have concluded it is appropriate to send the matter back to the SAT for reconsideration in accordance with these reasons on the matters both of contravention and of penalty, and with allowance for further evidence at least on matters relevant to the evidence question. I have so concluded for the following reasons.
In my view, it will be necessary in the reconsideration of the appellant's application to the SAT for the relevant decision-maker to apply SAT Act s 32(2)(b) in relation to the evidence question. However, such application might have the benefit of fuller material, particularly as to the nature of the unlawfulness in the entries on 26 April 2007 and 2 May 2007, than I have had. I consider that it is more appropriate the SAT be the relevant decision-maker in that respect rather than the Court, given what on the material available to me is the novelty of the application of s 32(2)(b) in the present context and the terms of that provision, which has no ready parallel I am aware of in the other jurisdiction of the Court or in its experience exercising the present jurisdiction. It seems to me that the SAT, informed by the views I have expressed in this decision, should take this opportunity to develop the relevant experience with the use of the provision.
Further, in the accumulation of that experience, the SAT, which does not have any equivalent to O 4 r 3(2), would not be encumbered by the procedure question, as the Court would be.
In addition, it will be necessary, if the decision is made not to exclude the factual material, for the relevant decision‑maker to exercise the discretions in SAT Act s 102(2) as to a civil penalty. The appellant had in fact put to the SAT by a document filed on 19 May 2008 written submissions as to penalty. The respondent for its part had put in to the SAT a set of written submissions, apparently including submissions in relation to penalty, in a number of documents on or about 13 June 2008, the date that one of the documents bears as the date of its receipt by the SAT.
It was not made apparent to me that there was further evidence required in relation to penalty than that previously put before the SAT. I assume for this purpose, as well as my previous discussion of the matter, that the use of monthly interest charges rather than daily ones was covered by that previous evidence. However, it appears the SAT had not held a hearing to consider these submissions. This appears to be because of the view it came to in Chequecash.

It appears to me that there is no advantage to a hearing before me to consider those matters, as opposed to one before the SAT, which may indeed be expected to have greater experience in those matters. Further, in this context, as in that of determining whether or not a contravention had been made out, the SAT would, unlike the Court, be unencumbered by the procedure question.
I will hear from the parties as to the terms of the orders that should be made to give effect to my conclusions.