Banks v Tremain & Ors [2001] NSWSC 766

New South Wales Supreme Court

CITATION : Banks v Tremain & Ors [2001] NSWSC 766 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12463/01 HEARING DATE(S) : 29 August 2001 JUDGMENT DATE : 4 September 2001

Alan Banks PARTIES : Kevin Stanley Tremain Paul Kim t/a Golden Floor Sanding Fair Trading Tribunal of NSW JUDGMENT OF : Sperling J at 1

LOWER COURT Fair Trading Tribunal of NSW JURISDICTION : LOWER COURT BU 1999/1231 FILE NUMBER(S) : LOWER COURT Mr Hookey JUDICIAL OFFICER :

P J Snelgrove for the Plaintiff COUNSEL : R Weaver for the First Defendant B Morris for the Second Defendant Snelgrove & O'Brien Solicitors for the Plaintiff SOLICITORS : Kevin E Worthington Solicitor for the First Defendant Benjamin & Khoury Solicitors for the Second Defendant CATCHWORDS : Practice and procedure - Appeal from Fair Trading Tribunal of NSW - whether Tribunal obliged to give reasons for decision without request to do so - whether jurisdictional limit applies to the amount mentioned before the Tribunal or on appeal - whether the regulation prescribing jurisdictional limit is ultra vires LEGISLATION CITED : Fair Tradiing Tribunal Act 1998, s45, s61 Fair Trading Tribunal Regulation 1999, cl18 DECISION : Notice of motion dismissed; Otherwise, per para 23 of this judgment.

- 5 - IN THE SUPREME COURT OF NEW SOUTH WALES Common Law Division

4 September 2001

SPERLING J

12463/01 Banks v Tremain & Ors

Judgment

1 By summons filed on 8 August 2001, Mr A Banks appeals against a determination of the Fair Trading Tribunal of New South Wales, in its Home Building Division, being proceedings No. BU 1999/1231. 2 The appeal is brought pursuant to s 61 of the Fair Trading Tribunal Act 1998 which provides so far as is relevant: 61(1) A party to proceedings before the Tribunal may appeal to the Supreme Court on a question of law against any decision of the Tribunal in those proceedings, except where the regulations preclude such an appeal. (2) ... (3) ... (4) Regulations made for the purposes of subsection (1) may preclude an appeal; (a) in cases where the amount claimed or disputed in the matter concerned did not exceed $25,000 (or such other amount as may be prescribed), or (b) in cases of any prescribed class or description. 3 Clause 18 of the Fair Trading Tribunal Regulation 1999 provides as follows: 18. No appeal lies to the Supreme Court under section 61 of the Act in respect of a decision of the Tribunal: (a) in a matter heard in the Consumer Claims Division or the Motor Vehicle Division of the Tribunal, or (b) in a matter in the Home Building Division of the Tribunal in which the amount claimed or disputed does not exceed $25,000. 4 The claim before the Tribunal was brought by Mr K S Tremain. It was for $38,000. On 19 July 2001, the member of the Tribunal who heard the claim, Mr Hookey, made an award against Mr Banks for $18,000. No award was made against Mr P Kim who had also been joined as a party. Mr Banks was ordered to pay Mr Tremain's costs, and Mr Tremain was ordered to pay Mr Kim's costs. 5 No record was made of the evidence which was taken over a period of some days. Mr Hookey delivered his judgment orally on 19 July 2001. It took about half an hour. It was tape recorded. No transcription has been attempted. The quality of the tape recording is not known. 6 The decision was notified by notice of order issued on 24 July 2001. That was pursuant to s 45 of the Act, which provides as follows: 45(1) The Tribunal must within the time prescribed by the regulations, give notice of its decision in a matter to the parties to the proceedings. (2) If the regulations so require (or if a party to the proceedings, within the time and in the manner prescribed by the regulations, requests the Tribunal to do so), the Tribunal must also prepare a written statement of reasons for its decision. The statement may be brief, but must: (a) set out the decision and the reasons for it, (b) set out the findings on any material question of fact, and (c) refer to the evidence or any other material on which the findings of fact were based. (3) The Tribunal is to cause a copy of any statement prepared under subsection (2) to be served on each party to the proceedings within the prescribed time after the decision concerned was made. 7 On 24 August 2001, Mr Tremain filed a notice of motion seeking an order that the summons be dismissed. This is, then, an application for summary dismissal pursuant to Pt 13 r 5(1)(a). The bar is high. The court must be satisfied that the proceedings are clearly futile. 8 Counsel for Mr Tremain put his case on two grounds: