Poat v Consumer Trader and Tenancy Tribunal

[2004] NSWSC 947

CITATION:	Poat v Consumer Trader & Tenancy Tribunal & Anor [2004] NSWSC 947 revised - 21/10/2004
HEARING DATE(S):	13 October 2004
JUDGMENT DATE:	19 October 2004
JURISDICTION:	Common Law Division Administrative Law List
JUDGMENT OF:	Master Malpass at 1
DECISION:	The summons is dismissed; the plaintiff is to pay the costs of the summons.
CATCHWORDS:	Jurisdiction exercised in the Motor Vehicles Division of the Tribunal - definition of "new motor vehicle" - "wheels" - a boat is not a motor vehicle.
LEGISLATION CITED:	Consumer Claims Act 1998, s14(3) Consumer Trader & Tenancy Tribunal Act 2001, Schedule 1 cl 1(d) Motor Dealers Act 1974, s4 Motor Vehicles Taxation Act 1988, s3(1) Road Transport (General) Act 1999, s3(1)
CASES CITED:	Hasniyah Murad v Pacific Services Pty Ltd & Anor [2004] NSWCA 251
PARTIES :	Philip Poat (Plaintiff) Consumer Trader & Tenancy Tribunal (First Defendant) Pathfinder Boatland Pty Limited T/A Pathfinder Marine (Second Defendant)
FILE NUMBER(S):	SC 30044 of 2004
COUNSEL:	In person (Plaintiff) Mr M Callanan (Solicitor) (Second Defendant)
SOLICITORS:	N/A (Plaintiff) Tillyard & Callanan (Second Defendant)

LOWER COURTJURISDICTION:	Consumer Trader and Tenancy Tribunal of NSW
LOWER COURT FILE NUMBER(S):	MV 04/15484
LOWER COURT JUDICIAL OFFICER :	Senior Member Durie

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

Master Malpass

19 October 2004

30044 of 2004 Philip Poat v Consumer Trader & Tenancy Tribunal & Anor

JUDGMENT

1 Master: The plaintiff purchased a boat from the party that is described as the second respondent in these proceedings. He brought an application in the Consumer Trader & Tenancy Tribunal (the Tribunal) to recover moneys paid in respect of the boat. The sum claimed was $383,000. The application appears to have been processed in the Motor Vehicles Division of the Tribunal.

2 The hearing of the application took place on 13 May 2004. Neither party had legal representation. No evidence was taken. The application was dismissed on a question of jurisdiction (which may have been raised by the Tribunal itself). The Tribunal took the view that it had no jurisdiction to determine the application because the claim exceeded the sum of $25,000.

3 The plaintiff applied for a written statement of reasons. This was provided by Senior Member Durie on 26 May 2004.

4 The Tribunal is comprised of a number of divisions (including the General Division and the Motor Vehicles Division).

5 The Tribunal exercises jurisdiction in respect of consumer claims under the Consumer Claims Act 1998 (including claims that relate to motor vehicles). Save for inter alia the consumer claims that relate to motor vehicles, this jurisdiction is to be exercised in the General Division (where there is a jurisdictional limit of $25,000). The Motor Vehicles Division has an unlimited jurisdiction.

6 In dealing with the application, the Tribunal made the assumption that the plaintiff could prove the purchase of a new boat from the second respondent. It then dealt with the question of whether or not such a claim could be maintained in the Motor Vehicles Division. Following an examination of various statutory provisions and dictionary meanings, the Tribunal concluded that this could not be done. It rejected a view presented by the plaintiff that because his consumer claim relating to a boat had been listed in the Motor Vehicles Division the Tribunal therefore had unlimited jurisdiction in respect of it.

7 On 15 June 2004, the plaintiff filed a summons in this court. It purports to bring an appeal against the Tribunal decision.

8 The appeal has been brought out of time and is presently incompetent. An application is made for extension of time.

9 The court has a discretionary power to grant an extension of time. The plaintiff bears the onus of demonstrating an entitlement to an extension. In considering whether or not to grant an extension, the court has regard to inter alia matters such as the merits of the proposed appeal, delay, explanation for that delay and prejudice. It would be futile to grant an extension of time if the appeal must fail.

10 In this case, it is convenient to first turn to the question of the merits of the appeal. In considering that question, it needs to be borne in mind that there is but a limited avenue of appeal to this court. It is restricted to those cases where the Tribunal decides a question with respect to a matter of law (such a reference includes a reference to a matter relating to the jurisdiction of the Tribunal).

11 The appeal was heard on 13 October 2004. During the hearing, the question of extension of time was not raised. In respect of the merits of the appeal, the parties have relied on both written and oral submissions.

12 A significant portion of this material is directed towards definitions to be found in various pieces of legislation and dictionaries. In my view, this material does not afford much assistance in the present case. It seems to me that it suffices to refer to what could be described as the relevant chain of legislation and what has been said in Parliamentary speeches. I consider that the legislation purports to provide statutory definitions which are determinative of the issues in this case. I now turn to that material.

13 Section 4 of the Consumer Trader & Tenancy Act 2001 defines “Division” (it means a division of the Tribunal specified in Schedule 1). Section 10 provides that the Tribunal comprises the divisions specified in clause 1 of Schedule 1 and is to exercise its functions in accordance with that Schedule.

14 Clause 1(d) of Schedule 1 of the Act 2001 provides:-

the Motor Vehicles Division , in which the Tribunal’s jurisdiction is to be exercised in respect of consumer claims under the Consumer Claims Act 1998 that relate to motor vehicles…

15 Section 14(3) of the Consumer Claims Act 1998 provides:-

14 Limitation on Tribunal’s jurisdiction to make orders
(1) The Tribunal has no jurisdiction to make in respect of a particular consumer claim an order or orders in favour of the claimant or, where there are two or more claimants, in favour of those claimants if the total of:
(a) the amount or amounts (if any) of money to be paid, and
(b) the value or values (if any) of the work to be performed, or the services to be supplied, and
(c) the amount or amounts (if any) of money to be declared not to be due or owing, and
(d) the value or values of goods (if any) to be delivered or replaced,
under or by virtue of the order or orders would exceed the amount prescribed by the regulations in respect of claims of that class or description.
(2) The Tribunal has no jurisdiction to make in respect of a particular consumer claim an order or orders in favour of the respondent to the claim or, where there are two or more respondents to the claim, in favour of those respondents if the amount or the total of the amounts (if any) to be paid under or by virtue of the order or orders would exceed the amount prescribed by the regulations in respect of claims of that class or description.
(3) Subsections (1) and (2) do not apply in relation to a consumer claim arising from the supply of a new motor vehicle that is used substantially for private purposes within the meaning of the Motor Vehicles Taxation Act 1988 .
(4) For the purposes of subsection (3):
new motor vehicle means a motor vehicle that is not a second-hand motor vehicle within the meaning of the Motor Dealers Act 1974 .

16 The Motor Vehicles Taxation Act 1988 was enacted inter alia to provide for the imposition, assessment and collection of tax on the registration of motor vehicles. Section 3 of that Act is a definition provision. Subsection (1) thereof provides a definition of “motor vehicle” as follows:-

a motor vehicle (other than a light rail vehicle) or trailer within the meaning of the Road Transport (General) Act 1999 .

17 Subsection (2) thereof contains provisions intended to identify, for the purposes of that Act, what is a motor vehicle used substantially for private purposes.

18 The Motor Dealers Act 1974 was enacted for a variety of purposes (including the regulation of motor dealers). Section 4 of that Act is the definition provision thereof. It defines inter alia “dealer”, “demonstrator motor vehicle”, “motor vehicle” and “second-hand motor vehicle”. “Motor vehicle” is defined as follows:-

motor vehicle means any motor car, motor carriage, motor cycle, tractor, or other vehicle propelled wholly or partly by any volatile spirit, steam, gas, oil or electricity, or by any means other than human or animal power, and includes a trailer (other than a trailer for the carriage of goods or animals which has, in the case of an unregistered trailer, a tare weight of 250 kilograms or less or, in the case of a registered trailer, a tare weight as stated in the certificate of registration of 250 kilograms or less), but does not include any vehicle used on a railway or tramway or any vessel or aircraft.

19 Section 3(1) of the Road Transport (General) Act 1999 defines “motor vehicle” and “vehicle”. The former is defined as:-

… a vehicle that is built to be propelled by a motor that forms part of the vehicle.

The latter is defined as:-

(a) any description of vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway, or
(b) any other vehicle prescribed by the regulations.

20 The second reading speech [NSW Hansard 19 September 2001] of the Consumer Trader & Tenancy Bill contains the following:-

A specific jurisdictional reform relates to the motor vehicle division. To implement the long-requested concept of lemon laws the new division will have an extended financial jurisdiction in relation to disputes involving the purchase of new vehicles. The current $25,000 upper limit will be removed to ensure that a complaint relating to the average new family car , which now often costs the consumer more than $25,000, will be able to go to the Tribunal. This new provision will apply to new vehicles to be used for private purposes. [Emphasis added.]

21 In my view, the material to which I have referred clearly demonstrates that a consumer claim relating to a boat cannot be treated as a consumer claim relating to a motor vehicle and is not properly the subject of an application brought in the Motor Vehicles Division.

22 An object of the legislation was to provide a consumer forum in a new division (the Motor Vehicles Division) with extended financial jurisdiction for disputes concerning new motor vehicles used substantially for private purposes (it being recognised that the upper limit of $25,000 for other consumer claims would not cater for a complaint relating to the average new family car). It was not intended to provide a forum having such jurisdiction to deal with disputes concerning inter alia boats.

23 In my view, a “new motor vehicle” must not only be built to be propelled by a motor that forms part of the vehicle, but it also must have wheels. Further, it seems to me that the legislation intended to expressly exclude any vehicle used on a railway or tramway or any vessel or aircraft.

24 If any reinforcement should be needed, that view is reinforced by what was said in Hasniyah Murad v Pacific Services Pty Ltd & Anor [2004] NSWCA 251. In that case, unanimous judgment of the Court was delivered by the Chief Justice. The question being considered was whether or not a trolley shunter used in a shopping mall could be regarded as a vehicle, and as such a motor vehicle within the meaning of the Motor Accidents Compensation Act 1999. The Court decided that it could not be so regarded. Although the case turned on its own particular facts, it contains dicta which is of assistance in the present case. The claim failed even though the shunter had wheels.

25 Before concluding my consideration of this question, I should refer to matters raised by the plaintiff both before the Tribunal and in this court (they concern briefing notes and the application form used for the Division). The form contains inter alia the following:-

MOTOR VEHICLES DIVISION –
Consumer Claims about new and used motor vehicles (including motor boats) and repairs to motor vehicles.

26 The Senior Member dealt with this matter in his reasons. He said inter alia that “The matter falls to be decided by reference to the relevant statutory provisions” and it need not be further considered here.

27 In my view, the approach taken by the Senior Member was correct. Briefing notes have no relevance whatsoever. If there be erroneous material contained in a Tribunal form it cannot confer jurisdiction upon the Tribunal that it does not otherwise have. The jurisdiction had by it is conferred by statute (see Pt 3 of the Act).

28 It has been said that consumer claims concerning inter alia boats have in the past been processed in the Motor Vehicles Division. However, it is also said that these other consumer claims are dealt with on the basis that there is a jurisdictional limit of $25,000 applicable to them. If this be the case, whilst it perhaps may be a matter of convenience for the Tribunal to do so, it is contrary to the legislation.

29 In my view, the appeal is doomed to failure. Accordingly, it would be futile to grant an extension of time. Before concluding this judgment, it may be helpful to clarify one matter. It is not material to the question of the tenability of this appeal. However, it seems to me that a distinction should be drawn between lack of jurisdiction to entertain a claim and the monetary limit of the power had by the Tribunal to make an order. The Tribunal may entertain a claim in an amount that exceeds the power that it has to make an order, but it can order no more than the monetary limit of that power (in the present case, that limit is $25,000). It is open to an applicant to waive any excess.

30 For completeness, I should add that the plaintiff has made it clear that he does not want to waive any excess.

31 The application for an extension of time is rejected and the incompetent appeal must fail.

32 If the plaintiff wishes to pursue his claim he may be well advised to look to a court of appropriate jurisdiction (such as the District Court).

33 The summons is dismissed. The plaintiff is to pay the costs of the summons.

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Last Modified: 10/22/2004