National Australia Bank Ltd v Director-General, Department of Qld Emergency Services

[1995] QCA 325

IN THE COURT OF APPEAL	[1995] QCA 325
SUPREME COURT OF QUEENSLAND

Appeal No. 247 of 1994. Appeal No. 248 of 1994.

Brisbane

[N.A.B. v. Department of Qld Emergency Services]

BETWEEN:

NATIONAL AUSTRALIA BANK LIMITED

ACN 004 044 937

Appellant

AND:

DIRECTOR-GENERAL, DEPARTMENT OF QUEENSLAND EMERGENCY SERVICES

Respondent

___________________________________________________________________

Pincus J.A.
McPherson J.A.

Moynihan J.

___________________________________________________________________

Judgment delivered 30/5/95

Further Ordered delivered 04/08/1995

Further Order of the Court

___________________________________________________________________

The orders will be, in each appeal:

(1)	Appeal allowed.
(2)	Set aside the direction that in respect of the refinancing contracts notice of the application be given personally to each of the debtors pursuant to s. 87A(2)(c) of the Credit Act 1987.
(3)	Set aside the order that the application, so far as it relates to relief sought in respect of refinancing contracts be adjourned to a date to be fixed.
(4)	Determine with respect to the contracts described in para. 6 of the amended notice of motion that the debtors under such contracts are liable to pay the whole of the credit charges under them.

___________________________________________________________________ CATCHWORDS: CREDIT ACT 1987 - whether refinancing contracts should be

the subject of a determination under s. 87A(2)(b) - whether
minor errors ought reasonably be excused - discretion.

S. 87A(2)(b) Credit Act 1987.

Counsel:	Mr R Finkelstein Q.C. with him Mr G Thompson for the appellant. Ms R G Atkinson with her Mr R J Byrnes for the respondent.
Solicitors:	Mallesons Stephen Jaques for the appellant. The Crown Solicitor for the respondent.

Hearing date:03/05/1995.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 247 of 1994. Appeal No. 248 of 1994.

Brisbane

Before Pincus J.A.
McPherson J.A.
Moynihan J.

[N.A.B. v. Department of Qld Emergency Services]

BETWEEN:

NATIONAL AUSTRALIA BANK LIMITED

ACN 004 044 937

Appellant

AND:

DIRECTOR-GENERAL, DEPARTMENT OF QUEENSLAND EMERGENCY SERVICES

Respondent

FURTHER ORDER OF THE COURT

Judgment delivered 30/05/1995

Further Order delivered 04/08/1995

The Court delivered reasons in this matter on 30 May 1995, but made no final

orders, our purpose being to enable the parties to make further submissions. In

accordance with the Court’s directions the respondent and the appellant both filed and

served submissions; then, presumably by arrangement between the parties, the

respondent filed further submissions, on 12 July 1995.

It is not proposed in these reasons to summarise the content of our reasons, previously delivered. The question which remains to be considered is whether certain refinancing contracts should be the subject of a determination under s. 87A(2)(b) of the

Credit Act 1987 or whether such a determination should be refused. That depends on

whether:

(i)        Contraventions or failures in question are minor errors;

(ii)        Such contraventions or failures ought reasonably to be excused;

(iii)       The Court is prepared to exercise the discretion whose existence is

implied by the use of the word "may" in the provision to which we

have referred, in favour of the appellant.

We have already decided the first point in favour of the appellant and the further

submissions we received related to the second and third points.

The errors in the refinancing contracts were consequential upon what is described

in the reasons as the "Zurich error". The learned primary judge dealt with the "Zurich error"

in his reasons and, as to the contracts affected by that error, declared that the debtors are

liable to pay the whole of the credit charges; that was done under s. 87A(2)(b) referred to

above and it was necessarily based on the view that "all the contraventions or failures to

which the application relates are minor errors and ought reasonably to be excused", to use

the words of s. 87A(2)(b).

One would expect that the errors with respect to the refinancing contracts

consequential on the "Zurich errors" would be treated in the same way. However, the

respondent submits that they should not be so treated, for a number of reasons. They

relate principally to the circumstances in which the "Zurich error" was made. For example, attention is drawn to evidence which was given below to the effect that there was

considerable delay after March 1993, when an employee of the appellant first raised the

question of whether the names of the insurers set out in the appellant’s forms were correct,

until corrective steps were completed. Further, it is pointed out that the legal department

of the appellant knew of the change of insurer which produced the "Zurich error" before that

change occurred as is evidenced by a letter dated 30 December 1992 signed by a Mr

Forlano.

The difficulty about giving effect to submissions of this character is that they can

have no more weight with respect to the errors in the refinancing contracts than they had

as to the "Zurich error" itself. To treat them as reasons justifying the refusal of relief with

respect to the refinancing contracts would hardly be consistent with the foundation of the

order made below, as to the contracts affected by the "Zurich error"; that order as has

been explained was founded on satisfaction that the contraventions or failures consisting

in the "Zurich error" ought reasonably to be excused.

The appellant has contended that it would be contrary to the public interest to allow

the respondent to make the submissions just referred to. That does not appear to me to

be so; as the respondent’s counsel pointed out, the Court requested assistance from both

parties and it has been given. Whether the submissions should be accepted is another

matter. The appellant’s counsel have also contended that once a contravention is found

to be a minor error, it should only be in special circumstances that it will not be excused.

That is so, the appellant says, because the question of excuse arises only if the error is

"unlikely to disadvantage the debtors concerned in any significant respect". But it may be proper to refuse relief, for example, where errors have been made because there has been

no serious attempt to comply with the provisions of the Act; here, although not so

expressed, the respondent’s submission is along these lines. It is suggested that there

was a "cavalier and careless attitude to the requirements of the statute law", an expression

taken from Encyclopaedia Britannica (Australia) Inc. v. Director of Consumer of Affairs

[1988] V.R. 904 at 918. But that was a case where the non-compliance consisted in

disobeying what was described as "the cardinal provision of all - that of requiring a licence

. . . ". There was no comparable error made in the present case, nor has anything been

placed before us to suggest that the appellant simply flouted the law. The evidence rather

points to slow and poor communication, in some respects, between the various sections

of the appellant’s business and failure to respond with appropriate urgency when the

relevant difficulties came to light.

To return to the main point, in considering whether the errors in the refinancing

contracts ought reasonably to be excused, the Court must endeavour to avoid

inconsistency between the treatment of these errors and the treatment, by an order against

which no appeal has been brought, of the "Zurich error" contracts themselves. In the whole

of the circumstances, it should be concluded that an order in favour of the appellant with

respect to the refinancing contracts is one which ought reasonably to be made and the

relevant discretion should be exercised in favour of the appellant.

The orders will be, in each appeal:

(1)	Appeal allowed.
(2)	Set aside the direction that in respect of the refinancing contracts notice of
the application be given personally to each of the debtors pursuant to s. 87A(2)(c) of the Credit Act 1987.
(3)	Set aside the order that the application, so far as it relates to relief sought
in respect of refinancing contracts be adjourned to a date to be fixed.
(4)	Determine with respect to the contracts described in para. 6 of the amended
notice of motion that the debtors under such contracts are liable to pay the
whole of the credit charges under them.