Janos Hoey v Consumer Trader & Tenancy Tribunal & Anor [2002] NSWSC 1023

New South Wales Supreme Court

CITATION : Janos Hoey v Consumer Trader & Tenancy Tribunal & Anor [2002] NSWSC 1023 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11754 of 2002 HEARING DATE(S) : 25 October 2002 JUDGMENT DATE : 30 October 2002

Janos Hoey Pty Limited (Plaintiff) PARTIES : v Consumer Trader & Tenancy Tribunal (First Defendant) Boambee Pastoral Company Pty Limited (Second Defendant) JUDGMENT OF : Master Malpass

LOWER COURT Consumer Trader & Tenancy Tribunal JURISDICTION : LOWER COURT CO 2001/4300 FILE NUMBER(S) : LOWER COURT Mr David Turley, Presiding Member JUDICIAL OFFICER :

Mr J Wilson (Plaintiff) COUNSEL : N/A (First Defendant) Mr S J Motbey (Second Defendant) Matthews Williams (Plaintiff) SOLICITORS : I V Knight - Crown Solicitor - Submitting Appearance (First Defendant) Carneys (Second Defendant) CATCHWORDS : Appeal from tribunal - no transcript - deficiency of evidence to support submissions - no error of law demonstrated. LEGISLATION CITED : Fair Trading Act 1987, s 42. CASES CITED : Watson v Foxman (1995) 49 NSWLR 315 at 318. DECISION : See Paragraph 19.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

Wednesday 30 October 2002

11754 of 2002 Janos Hoey Pty Limited v Consumer Trader & Tenancy Tribunal & Anor

JUDGMENT 1 Master: The proceedings were commenced by Summons filed on 25 June 2002. The proceedings bring an appeal from a decision of the Consumer Trader & Tenancy Tribunal (the Tribunal). The Presiding Member was Mr David Turley. The decision was given on 28 May 2002. 2 The second defendant brought a claim in the Tribunal seeking relief in respect to loss or damage said to arise from misleading and deceptive labelling/directions on the label of a product known as Top Off Feed Rite (the Feed Rite label). The second defendant relied on s 42 of the Fair Trading Act 1987 (the Act). Feed Rite was a food supplement produced by the plaintiff. The product was used in the feeding of lambs for the purpose of fattening them. It appears that about eighty-six sheep died. An autopsy on two of them revealed that they had died of lactic acidosis caused by eating grain. 3 The hearing occupied some days. The Tribunal received both oral evidence and documentation (evidence was taken over at least two days). The plaintiff called Dr Lee (an expert) and a lay witness (Mr Bendick). The second defendant called Messrs Carroll, Street and Payten. The proceedings were not recorded and there is no transcript. 4 The Tribunal found in favour of the second defendant and ordered the plaintiff to pay the sum of $20,637.87. 5 Certain grounds of appeal have been filed. Largely, they may be said to agitate submissions as to there being no evidence to support conclusions and submissions as to failure to give any or any proper weight to matters. 6 There is but a limited avenue of appeal available to the plaintiff. It is restricted to an error of law. 7 On the hearing of this appeal, the court merely had before it some of the documentation that was placed before the Tribunal (see Exhibits A and B). Exhibit A was a bundle of documents (containing inter alia the application form, a copy of the Feed Rite label and the Reserved Decision of the Tribunal). Exhibit B was a Statement of Evidence from Dr Lee. The court does not have before it the oral evidence adduced before the Tribunal. In the circumstances, it seems to me that the plaintiff faces an insurmountable hurdle. This is a problem that was accepted by the plaintiff at an early stage during the hearing. 8 The Feed Rite label contains the following:- "LIMITATIONS: Do not feed to pigs, horses or other equines as this may be fatal. To be used in supplementary rations containing at least 20% of dry matter as roughage – with particle length of at least 1 cm. Example: Processed Hay or available Dry Pasture. DIRECTIONS: Thoroughly mix 20kg (1 bag) to each tonne (1000kg) of ration."