W D & H O WILLS (AUSTRALIA) LIMITED v THE CONSUMER CLAIMS TRIBUNAL OF NEW SOUTH WALES [1998] NSWCA 293

W D & H O WILLS (AUSTRALIA) LIMITED vy THE CONSUMER CLAIMS TRIBUNAL OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MASON P, MEAGHER JA and STEIN JA 12 March, 23 July 1998 [1998] NSWCA 293

On 11 August 1994, the second respondent, a medical practitioner, filed a consumer claim, in the Consumer Claims Tribunal of New South Wales against the appellants, WD &H O Wills and The Benson and Hedges Company claiming damages and costs incurred in overcoming her addiction to smoking. She sought a money order for $1,000 for the cost of a stop smoking programme, compensation for mental and physical distress in overcoming her nicotine dependence and for other expenses.

At the commencement of the hearing, the appellants sought a ruling from the Tribunal that it had no jurisdiction to determine the claim. The Tribunal ruled it was satisfied it had jurisdiction and Ireland J, in the Supreme Court of New South Wales, dismissed a summons seeking a review of that decision. The appellants appeal the decision of Ireland J.

On appeal, the appellants contend:

1. that as, respectively, the manufacturers and distributors of the goods, they are not the 'suppliers' of the goods within the meaning of s 3(1) of the Consumer Claims Tribunals Act 1987 (the Act);

2. that the claim is statute barred as the supply took place more than three years before the claim was lodged.

3. that the claim, in relation to distress and unspecified expenses, does not fall within the meaning of 'specified sum' in s 30(1) of the Act.

Held:

1. There is no reason in principle or policy to find that 'supplier' may not extend to include the manufacturer or distributor.

2. The trial judge correctly dismissed the submission that the claim was statute-barred as premature on the basis that s 19 of the Act confers wide powers on the Tribunal to amend the claim at any time before the hearing is complete. The claim is not statute barred as the second respondent's affidavit contains evidence of a supply of goods within the relevant time period.