Janos Hoey v Consumer Trader & Tenancy Tribunal - [2002] NSWSC 1023

CITATION: Janos Hoey v Consumer Trader & Tenancy Tribunal & Anor [2002] NSWSC 1023

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 11754 of 2002

HEARING DATE(S): 25 October 2002

JUDGMENT DATE: 30 October 2002

PARTIES :

Janos Hoey Pty Limited (Plaintiff)
v
Consumer Trader & Tenancy Tribunal (First Defendant)
Boambee Pastoral Company Pty Limited (Second Defendant)

JUDGMENT OF: Master Malpass

LOWER COURT
JURISDICTION : Consumer Trader & Tenancy Tribunal

LOWER COURT
FILE NUMBER(S) : CO 2001/4300

LOWER COURT
JUDICIAL OFFICER : Mr David Turley, Presiding Member

COUNSEL : Mr J Wilson (Plaintiff)
N/A (First Defendant)
Mr S J Motbey (Second Defendant)

SOLICITORS: Matthews Williams (Plaintiff)
I V Knight - Crown Solicitor - Submitting Appearance (First Defendant)
Carneys (Second Defendant)

CATCHWORDS: Appeal from tribunal - no transcript - deficiency of evidence to support submissions - no error of law demonstrated.

LEGISLATION CITED: Fair Trading Act 1987, s 42.

CASES CITED: Watson v Foxman (1995) 49 NSWLR 315 at 318.

DECISION: See Paragraph 19.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Wednesday 30 October 2002

11754 of 2002 Janos Hoey Pty Limited v Consumer Trader & Tenancy Tribunal & Anor
JUDGMENT

1 Master: The proceedings were commenced by Summons filed on 25 June 2002. The proceedings bring an appeal from a decision of the Consumer Trader & Tenancy Tribunal (the Tribunal). The Presiding Member was Mr David Turley. The decision was given on 28 May 2002.

2 The second defendant brought a claim in the Tribunal seeking relief in respect to loss or damage said to arise from misleading and deceptive labelling/directions on the label of a product known as Top Off Feed Rite (the Feed Rite label). The second defendant relied on s 42 of the Fair Trading Act 1987 (the Act). Feed Rite was a food supplement produced by the plaintiff. The product was used in the feeding of lambs for the purpose of fattening them. It appears that about eighty-six sheep died. An autopsy on two of them revealed that they had died of lactic acidosis caused by eating grain.

3 The hearing occupied some days. The Tribunal received both oral evidence and documentation (evidence was taken over at least two days). The plaintiff called Dr Lee (an expert) and a lay witness (Mr Bendick). The second defendant called Messrs Carroll, Street and Payten. The proceedings were not recorded and there is no transcript.

4 The Tribunal found in favour of the second defendant and ordered the plaintiff to pay the sum of $20,637.87.

5 Certain grounds of appeal have been filed. Largely, they may be said to agitate submissions as to there being no evidence to support conclusions and submissions as to failure to give any or any proper weight to matters.

6 There is but a limited avenue of appeal available to the plaintiff. It is restricted to an error of law.

7 On the hearing of this appeal, the court merely had before it some of the documentation that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Janos Hoey v Consumer Trader & Tenancy Tribunal and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] NSWSC 1023
Decision Date: 30 October 2002

CaseChat Overview and Summary

The appeal, brought by Janos Hoey against a decision of the Consumer Trader & Tenancy Tribunal, was considered by the court. The primary issue in dispute was a decision made by the tribunal concerning a consumer trader matter. Hoey sought to overturn the tribunal's decision, arguing it was flawed. The tribunal had ruled against Hoey, and this ruling was the subject of the current appeal.

The legal issues that the court had to address included whether the tribunal's decision was supported by the evidence and whether any errors of law were made in the tribunal's process. Additionally, the court considered the adequacy of the appeal process, particularly the absence of a transcript of the tribunal's proceedings. The court was tasked with determining whether the appeal could proceed without a transcript and whether the deficiencies in the evidence could still allow for a fair assessment of the case.

The court held that the appeal was not well-founded as the evidence provided was insufficient to support the claims made by Hoey. The absence of a transcript did not necessarily preclude the court from reviewing the decision, but in this instance, the lack of a transcript compounded the deficiency in the evidence. The court found no demonstrated error of law in the tribunal's proceedings and concluded that the tribunal's decision was correct based on the available evidence. Therefore, the appeal was dismissed.

The court did not make any further orders beyond dismissing the appeal, affirming the tribunal's decision as it stood.

Orders