CALLAGHAN v CONSUMER CLAIMS TRIBUNAL and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER and HANDLEY JJA 17 November 1997 [1997] NSWCA 58 Handley JA This is an application by Mr Callaghan, appearing in person, for leave to appeal from a decision of Dunford J sitting in the Administrative Law Division. The proceedings before Dunford J arose out of prolonged proceedings between Mr Callaghan and Castor Holdings Pty Ltd t/as OZ-Tech TV Video HiFi Services in the Consumer Claims Tribunal. The order of the Tribunal that is currently in force was made in February this year and was that the company pay Mr Callaghan $140 and, on making such payment, that it be entitled to retain as its own property, Mr Callaghan's television set. The Supreme Court has only very limited powers to entertain proceedings to review a decision of the Consumer Claims Tribunal Act. These flow from s12 of the Consumer Claims Tribunal Act which provides: "12. (1) Except as provided by subs(2), a court of record has no jurisdiction to grant relief or a remedy by way of: (a) a judgment or order in the nature of prohibition, mandamus, certiorari or other prerogative writ; (b) a declaratory judgment or order; or (c) an injunction, in respect of a consumer claim heard and determined or to be heard or determined by a tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a claim. (2) A court is not precluded from granting relief or a remedy of a kind referred to in subs(1) if, in respect of a consumer claim: (a) a tribunal has given a ruling under s26 or refused or failed to give such a ruling after the jurisdiction of the tribunal to hear and determine the claim has been disputed by a party to the claim and the ground on which the relief or remedy is sought is that: (i) the ruling was erroneous; or (ii) the tribunal erred in refusing or failing to give the ruling after its jurisdiction was disputed; or (b) a tribunal has made an order under s30 and the ground on which the relief or remedy is sought is that: (i) the tribunal had no jurisdiction to make the order; or (ii) in relation to the hearing or determination of the claim, a party to the claim had been denied natural justice". It is apparent that the Supreme Court is only authorised to entertain proceedings to judicially review a decision of the Consumer Claims Tribunal where that Tribunal has given a decision as to the scope of its jurisdiction which is said to be wrong in law. The only decision of the Tribunal which is attacked for error of this nature is the decision on 6 November 1996. Those proceedings were conducted by referee Steve Forbes and Mr Callaghan's allegation is, that after he left the hearing room on 9 October 1996, the technician "Tony" then 2 UNREPORTED JUDGMENTS representing the company, remained behind in the Callaghan. There can be no doubt that any private communication of relevant material by one party to a judicial officer in the absence of, and without the consent of, the other, is a denial of natural justice and involves an error or excess of jurisdiction by the tribunal. It appears that "Tony" did remain behind in the hearing room and have a conversation with the referee but there is no evidence that the conversation resulted in any information being given to the referee which could arguably be described as material. The affidavit of Mr Callaghan of 23 May 1997, which was before Dunford J, annexed a letter from the senior referee of the Tribunal to Mr Callaghan dated 28 February 1997, in which the senior referee said: "Prior to the matter being relisted in February 1997, I asked Referee Forbes to comment on your allegation that he had discussed the case with a representative of the respondent as the parties were leaving the hearing on 6 November. I am satisfied that the referee simply informed this person that he could not discuss the matter with him" There is no sworn evidence from Mr Forbes to this effect but neither is there any sworn evidence which establishes that what the senior referee wrote to Mr Callaghan on 28 February was incorrect. The company relied on an affidavit by Peter Cervasio of 23 June before Dunford J. Paragraph three contains his statement that no conversation took place between the deponent and the assessor at the time referred to other than the following: "ASSESSOR: You may not discuss anything to do with this matter with me in the absence of Mr Callaghan. I SAID: I understand". Mr Callaghan informed this Court that the person present on that occasion was not Mr Cervasio but "Tony". Dunford J referred to this question in his reasons for judgment. He pointed out that the only reference to "Tony" was in the amended summons and the only evidence before him on this issue was the letter written by the plaintiff to the senior referee on 8 November and his reply of 28 February. His Honour noted the affidavit of Mr Cervasio and said: "There may be some confusion as to whether this is the technician whom the plaintiff was referring in his affidavit or in his summons but there is simply no evidence before me of any improper conversation". The Judge concluded that the plaintiff, that is Mr Callaghan, had not established that there had been any improper communication between a representative of the company and referee Forbes behind Mr Callaghan's back and Mr Callaghan had failed to make out a case that there had been a denial of natural justice. In those circumstances the Judge was compelled to dismiss Mr Callaghan's proceedings. Mr Callaghan, as he is required by provision in the Supreme Court Act, seeks leave to appeal from Dunford J's decision. This Court does not sit as a court of first instance to hear original proceedings but as a Court of Appeal to hear appeals from original proceedings conducted by other judges. As such, the role of this Court is to determine whether the judge from whom the appeal is brought made any mistake of fact or law which affected his orders. Mr Callaghan has failed to establish that Dunford J made any mistake of fact or law on the material before him. There was no evidence, as he said more than once, that any improper conversation took place between Referee Forbes and the URJ CALLAGHAN v CONSUMER CLAIMS TRIBUNAL and ANOR (Meagher JA) 3 company representative. Mr Callaghan says there is evidence in this Court to the contrary but that evidence was not before Dunford J. In any event the order of 6 November is no longer in force. In those circumstances the Court has no option but to refuse leave to appeal as it is evident that Dunford J was perfectly correct on the evidence that was before him. I propose therefore that the orders be summons dismissed with costs. Meagher JA I agree. The orders of the Court will therefore be the orders as proposed by Mr Justice Handley. The summons is dismissed with costs.