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Jonsson v Arkway Pty Ltd

Jonsson v Arkway Pty Ltd

Case [2005] NSWSC 304 8 April 2005

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CITATION:
Jonsson v Arkway Pty Ltd & Anor [2005] NSWSC 304

HEARING DATE(S): 15 February 2005

JUDGMENT DATE :

8 April 2005

JURISDICTION:
Common Law Division, Administrative Law List

JUDGMENT OF:
Master Harrison

DECISION:
(1) The appeal is upheld; (2) The decision of Senior Tribunal Member Durie dated 28 September 2004 is set aside; (3) The matter is referred to the Tribunal to be dealt with according to law; (4) The first defendant is to pay the plaintiff's costs as agreed or assessed; (5) A certificate of indemnity should be granted to the first defendant in accordance with the Suitors' Fund Act, if appropriate.

CATCHWORDS:
Appeal decision of CTTT - whether same Tribunal Member should conduct rehearing

LEGISLATION CITED:
Administrative Decisions (Judicial Review) Act 1975 (NSW)
Consumer Credit Code
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) - s 67
Suitors' Fund Act 1951 (NSW)

CASES CITED:
Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456
Jonsson v Arkway Pty Ltd & Anor [2003] NSWSC 815
Kalokerinos & Anor v HIA Insurance P/L & Anor [2004] NSWCA 312
Krslovic Homes v Timothy Sparkes & Ors [2004] NSWSC 374
Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39
Re JRL: Ex parte CJL (1986) 161 CLR 342
Wentworth v Wentworth (NSWSC, unreported 6 February 1998; BC9800282)

PARTIES:
Georgina Lucille Jonsson
(Plantiff)
Arkway Pty Ltd
(First Defendant)
Consumer, Trader & Tenancy Tribunal
(Second Defendant)

FILE NUMBER(S):
SC 30099/2004

COUNSEL:
Mr P T Russell
(First Defendant)

SOLICITORS:
Mr P Batley,
Legal Aid Commission,
Coffs Harbour
(Plaintiff)
Mr D Williams,
Abbott Tout
(First Defendant)
Submitting Appearance
(Second Defendant)

LOWER COURT JURISDICTION:
Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S):
COM 04/04907

LOWER COURT JUDICIAL OFFICER :
Senior Member G J Durie

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

MASTER HARRISON

FRIDAY, 8 APRIL 2005
30099/2004 - GEORGINA LUCILLE JONSSON v
ARKWAY PTY LTD and
CONSUMER, TRADER & TENANCY

TRIBUNAL of NEW SOUTH WALES

JUDGMENT (Appeal decision of CTTT - whether same

Tribunal Member should conduct rehearing)

1 MASTER: By summons filed on 1 November 2004, the plaintiff seeks an order that the decision and orders of Senior Member GJ Durie of the Consumer, Trader & Tenancy Tribunal (“CTTT”) dated 28 September 2004, be set aside. The plaintiff also seeks an order that Senior Member GJ Durie be disqualified from further hearing the proceedings between the parties. The plaintiff is Georgina Lucille Jonsson. The first defendant is Arkway Pty Ltd. The second defendant is the CTTT, who has filed a submitting appearance.

2 Senior Tribunal Member GJ Durie conducted the hearing of this matter over 3½ days in the CTTT upon all issues. Ultimately, on 25 November 2002, the Tribunal Member dismissed Ms Jonsson’s application in which she claimed that the transactions between the respondent and herself were subject to the provisions of the Consumer Credit Code. That is, the Tribunal found that it…

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.

Continue reading Jonsson v Arkway Pty Ltd

Details

AGLC: Jonsson v Arkway Pty Ltd [2005] NSWSC 304
Case: [2005] NSWSC 304
Decision Date: 8 April 2005

CaseChat Overview and Summary

The case of Jonsson v Arkway Pty Ltd involved a dispute between the applicant, Jonsson, and the respondent, Arkway Pty Ltd. The matter was before the Civil and Administrative Tribunal (CAT) and subsequently appealed to the Civil and Administrative Tribunal of Appeal (CTTT). The primary issue at the heart of the appeal was whether the same member of the Tribunal who presided over the original decision should also conduct the rehearing. The applicant argued that a new member should preside over the rehearing to ensure impartiality and fairness.

The appeal raised significant legal questions regarding the principles of natural justice and the perceived or actual risk of bias. The CTTT had to consider whether the presence of the same member in both the original decision and the rehearing could lead to a perception of bias or whether procedural safeguards could mitigate such concerns. The court also needed to assess the respondent's argument that the Tribunal had the discretion to assign members to cases and that there was no inherent bias in the rehearing process.

In its decision, the CTTT concluded that the Tribunal had the discretion to assign the same member to conduct the rehearing. The Tribunal considered that the safeguards in place, such as the opportunity for the parties to make submissions and the member's ability to remain impartial, were sufficient to address any concerns about bias. The CTTT found that there was no actual bias and no reasonable apprehension of bias that would warrant a different member presiding over the rehearing. Consequently, the appeal was dismissed, and the rehearing was allowed to proceed with the same member.

Orders