New South Wales Supreme Court CITATION : City Index (Australia) v Heath & Anor [2001] NSWSC 1150 CURRENT JURISDICTION: Common Law Division Administrative Law List FILE NUMBER(S) : SC 30041 of 2001 HEARING DATE(S) : 11 December 2001 JUDGMENT DATE : 14 December 2001 City Index (Australia) Pty Ltd (Plaintiff) PARTIES : v Benjamin Heath (First Defendant) Fair Trading Tribunal of New South Wales (Second Defendant) JUDGMENT OF : Master Malpass LOWER COURT Fair Trading Tribunal of New South Wales JURISDICTION : LOWER COURT CO 2001/2529 FILE NUMBER(S) : LOWER COURT David Baker JUDICIAL OFFICER : Mr H R Sorensen (Plaintiff) COUNSEL : Mr N Francey (First Defendant) N/A (Second Defendant) Snedden Hall & Gallop (Plaintiff) SOLICITORS : Wesley Community Legal Service (First Defendant) I V Knight - Crown Solicitor - Submitting appearance (Second Defendant) CATCHWORDS : Jurisdiction of the Tribunal - erroneous decision as to jurisdiction. Consumer Claims Act 1998, s 3, s 6, s 7, s 8, s 13, s 13 (1) and (2). Consumer Claims Tribunal Act 1987. Consumer Credit Code, s 70, s 71. Consumer Credit (New South Wales) Act 1995. LEGISLATION CITED : Contracts Review Act 1980. Fair Trading Act 1987 (NSW), s 42, s 43, s 65, s 66, s 68, s 68 (3), s 72. Fair Trading Tribunal Act 1998, s 6 (2), Pt 3, s 21. Trade Practices Act 1974 (Cth), s 87. CASES CITED : N/A DECISION : See Paragraph 30. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST Master Malpass FRIDAY 14 DECEMBER 2001 30041 of 2001 City Index (Australia) Pty Ltd v Benjamin Heath & Anor JUDGMENT 1 Master Malpass: The plaintiff (who was the respondent in proceedings before the Fair Trading Tribunal (the Tribunal) ) is a company incorporated in New South Wales. Its principal place of business is at the Canberra Race Course in the ACT. It is a provider of gambling services (sports betting). 2 The first defendant (who was the applicant in the Tribunal proceedings) made application to the plaintiff for an index betting account. He requested a credit allocation of $2,000. The account was confirmed and the credit limit approved. 3 The second defendant is the Tribunal. A submitting appearance has been filed on its behalf. 4 On 14 February 2001, the first defendant placed bets with the plaintiff and his losses totalled $10,060. 5 On 5 March 2001, the first defendant made application to the Tribunal. The prescribed form of application makes provision for inter alia "DETAILS OF CLAIM" and "ORDERS SOUGHT". 6 The "DETAILS OF CLAIM" are to be found in an attachment to the form. Initially, the attachment sets out 13 paragraphs containing allegations which may be described as being of a general nature. There is then a heading "Trade Practices Act 1974 (Cth) and Fair Trading Act 1987 (NSW)". Beneath that heading are paragraphs 14 – 18. Paragraph 18 states that the applicant seeks relief including compensation pursuant to s 87 of the Trade Practices Act and s 72 of the Fair Trading Act. There then appears a heading "Consumer Credit Code". It is followed by paragraphs 19 – 25. Paragraph 25 states that the applicant seeks an order under sections 70 and 71 of the Code reopening the transaction that gave rise to the account. There then appears a heading "Contracts Review Act". Beneath that heading appear paragraphs 26 and 27. Paragraph 27 states that the applicant seeks an order that he not have to pay $10,060 to the respondent. 7 The "ORDERS SOUGHT" portion of the application seeks only one order (an order that the applicant did not have to pay $10,060). 8 The respondent took objection to jurisdiction and 21 May 2001 was fixed as the hearing date for the argument on jurisdiction. Submissions were made (in writing and orally) and a decision was given on 4 July 2001. The Tribunal found that it had jurisdiction to hear the applicant's claim and made an order to that effect. Written reasons for decision have been provided by the member who heard the jurisdictional argument. 9 Prior to the decision, in written submissions, the first defendant had abandoned the claims founded on the Trade Practices Act and the Contracts Review Act. 10 On 28 July 2001, the plaintiff commenced these proceedings by filing a Summons. It seeks to have the order made by the Tribunal (that it has jurisdiction to hear the applicant's claim) set aside on the basis that it was erroneous. The hearing took place on 11 December 2001. 11 The Tribunal was established by the Fair Trading Tribunal Act 1998 (FTTA). Section 6 (2) provides that the Tribunal has and may exercise such functions as are conferred or imposed on it by or under this or any other Act or law. The Acts which confer jurisdiction on the Tribunal include the Consumer Claims Act 1998, (CCA) the Consumer Credit (New South Wales) Act 1995 (CC(NSW)A) and the Fair Trading Act 1987 (FTA). 12 The jurisdiction of the Tribunal is dealt with in Part 3 of the Act (including s 21). It is a jurisdiction "as is conferred on it by any Act or law". 13 In the application, the first defendant makes allegations pursuant to s 42 of the FTA (which relates to misleading or deceptive conduct) and s 43 thereof (which relates to unconscionable conduct). 14 Section 68 of that Act deals with actions for damages. Subsection (3) thereof is in the following terms:- "If the matter of such loss or damage arises in connection with a matter the subject of proceedings in the Tribunal, the Tribunal may proceed to decide it, and in so doing may award such sum, and make such ancillary orders, as it thinks fit." Sections 65, 66 and 72 also deal with remedies. These provisions confer jurisdiction on the Supreme Court. It is the case of the plaintiff that only s 68 (3) confers what is described as an ancillary jurisdiction on the Tribunal. 15 Section 3 of the CCA contains definitions of inter alia "consumer" and "consumer claim". The latter is defined to mean inter alia a claim by a consumer for relief from payment of a specified sum of money. 16 Section 6 of that Act provides that any consumer may apply to the Tribunal, in accordance with the Regulations, for determination of a consumer claim. Section 7 deals with the jurisdiction of the Tribunal in respect of consumer claims. Section 8 sets out the orders that the Tribunal may make. Section 13 deals with matters to be taken into account by the Tribunal when making orders. Subsection (1) thereof provides that the Tribunal must make such orders as, in its opinion, will be fair and equitable to all the parties to the claim. Subsection (2) thereof sets out factors which may be relevant to the making of an order. 17 I now return to the reasons for decision. A perusal of the reasons suggests that little attention may have been directed to the content of the application that was in fact before it. 18 The reasoning process behind the decision is in some respects not easy to discern. There are references to CCA and consumer claim. What is intended to flow from these references is unclear. Reliance is clearly placed on s 21 of FTTA. It is said that there was nothing in FTA which led the member to the belief that the intention of the Legislature was to limit the operation of FTA to those situations where the Tribunal otherwise had jurisdiction. The member expressly did not accept the argument of ancillary jurisdiction. He took the view that jurisdiction was clear, provided that the matters complained of occurred in New South Wales. He did not elaborate on the reasoning process behind the views expressed. 19 There has been lengthy argument before this Court. Both the plaintiff and the first defendant have relied on written submissions. In addition, there has been further oral argument. 20 The extent of the jurisdiction had by the Tribunal in relation to matters under the FTA was not fully argued before me. However, the first defendant has not sought to defend the decision on the basis of what was said by the member as to jurisdiction in relation to those matters. 21 In defending the decision, counsel for the first defendant has submitted that the application primarily invoked the traditional jurisdiction for the determination of a consumer claim of the kind previously available under the Consumer Claims Tribunal Act 1987, that it was primarily an application for the determination of a consumer claim under the CCA and that it would appear that the Tribunal had accepted the application as being one in respect of which relief is sought as a consumer claim. The submission then seems to proceed on the basis that once the Tribunal is seized of jurisdiction by way of consumer claim it then has jurisdiction to deal with the claim under FTA. 22 It is not disputed that the Tribunal does in fact have jurisdiction to entertain an application which brings a consumer claim before it. However, there is dispute as to whether or not the application made to the Tribunal either invoked or enlivened that jurisdiction. The plaintiff says that there was in fact no application before the Tribunal for the determination of a consumer claim. 23 The following submission was put to the Tribunal on behalf of the first defendant:- " '12. The Applicant's claims are based on the Fair Trading Act ss42 & 43, and the Consumer Credit Code generally, particularly ss 15, 70, 71 and 102. The Fair Trading Act claim is the primary claim. The Consumer Credit Code claim depends on the Tribunal finding that the contract was regulated by the Code.' (emphasis added)." 24 It is clear that the submission now being put by the first defendant was not made to the Tribunal. In my view, the first defendant should not now be permitted to advance such an argument. 25 In any event, it seems to me that submission is unavailable as a matter of fact. I have carefully perused the application. It appears to be a document which has been drafted with care by lawyers. It seems to me that it was intended to claim relief under the statutes that are expressly referred to therein. The only order sought was expressly claimed as relief under the Contracts Review Act 1980. In my view, it cannot be read as an application for the determination of a consumer claim. 26 As I have said, the plaintiff contends that the decision of the Tribunal was erroneous. It repeats inter alia the submission put to the Tribunal concerning jurisdiction in respect of FTA matters. 27 In the light of the argument that has taken place in these proceedings, I am of the view, that in respect of this application, the Tribunal does not have jurisdiction in FTA matters other than that conferred by s 68 (3) of the Act. This is a jurisdiction to award a sum and make ancillary orders where the loss and damage arises in connection with a matter the subject of proceedings in the Tribunal. It cannot be said that s 21 of FTTA, of itself, confers jurisdiction to entertain FTA matters. 28 The plaintiff has advanced other submissions. It submits that the relevant events took place in the ACT and that accordingly none of the Acts can have application in this case in any event. Further, it is submitted that, for other reasons there is no jurisdiction under CC(NSW)A (these were matters which were not addressed by the Tribunal). It may be added that it is conceded that if there is jurisdiction under CC(NSW)A then there is jurisdiction under FTA. For present purposes, it is unnecessary to pursue these matters. 29 In the circumstances, the order made by the Tribunal is erroneous and needs to be set aside. If there be a basis for the entertaining of jurisdiction (be it under CC(NSW)A, or otherwise) it can be pursued in the Tribunal. For completeness, it may be added that the applicant can apply to amend the application so as to advance a consumer claim if he desires to do so. 30 The order made by the Tribunal on 4 July 2001 is set aside. The matter is remitted to the Tribunal for determination according to law. The first defendant is to pay the costs of the Summons. The Exhibit may be returned. ********** Last Modified: 12/17/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.