Mah v Consumer Trader & Tenancy Tribunal & Anor [2005] NSWSC 476

New South Wales Supreme Court

CITATION : Mah v Consumer Trader & Tenancy Tribunal & Anor [2005] NSWSC 476

HEARING DATE(S) : 17 May 2005

JUDGMENT DATE : 24 May 2005

Common Law Division JURISDICTION : Administrative Law List

JUDGMENT OF : Master Malpass at 1

DECISION : The summons is dismissed; the plaintiff is to pay the costs of the summons; the exhibit may be returned.

CATCHWORDS : Ambit of appeal from proceedings in the Tribunal - no appeal from decision whether to grant or refuse application for rehearing.

Consumer Credit (New South Wales) Code LEGISLATION CITED : Consumer Trader & Tenancy Tribunal Act 2001

Browne v Dunn (1894) 6HL 67 CASES CITED : Jones v Dunkel (1959) 101 CLR 298

Jade Mah (Plaintiff) PARTIES : Consumer Trader & Tenancy Tribunal (First Defendant) Esanda Finance Corporation Limited (Second Defendant)

FILE NUMBER(S) : SC 30111/04

Mr D Knaggs (Solicitor) (Plaintiff) COUNSEL : Mr R Beasley (Second Defendant)

Mr D Knaggs (Plaintiff) SOLICITORS : I V Knight, Crown Solicitor (First Defendant) Blake Dawson Waldron (Second Defendant)

LOWER COURT JURISDICTION : Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S) : COM 03/48679

LOWER COURT JUDICIAL OFFICER : Senior Member C Paull

- 5 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

Master Malpass

24 May 2005

30111 of 2004 Jade Mah v Consumer Trader & Tenancy Tribunal & Anor

JUDGMENT 1 Master: The plaintiff purchased a Nissan coupe motor vehicle. She needed finance to effect the purchase. The finance was provided by the second defendant. She executed various documents (including the Esanda Loan Contract and a document headed "Esanda's Abacus"). The latter was described as being a credit application and assessment report. It contained information concerning the plaintiff's income and expenditure. 2 The plaintiff ceased making payments under the loan contract. She brought proceedings in the Consumer Trader & Tenancy Tribunal (the Tribunal). It seems that the relief sought had in mind s71 of the Consumer Credit (New South Wales) Code. 3 A hearing took place. The plaintiff was represented by a solicitor (Mr Knaggs). Counsel appeared for the second defendant (Mr Beasley) for the second day of the hearing. The plaintiff gave oral evidence. Considerable documentation was tendered. The second defendant did not call any oral evidence. 4 The plaintiff's application was unsuccessful. The decision was given on 25 August 2004. The Tribunal has provided written reasons for that decision. 5 There was an application for rehearing made by the plaintiff. The application was refused. 6 The plaintiff seeks to challenge both of those decisions in this Court. She relies on an amended summons filed on 17 January 2005 and a document headed "Particulars of grounds for review" which was filed in Court on 17 May 2005. 7 The hearing took place on 17 May 2005. The Court had before it material placed before the Tribunal. Both parties relied on written submissions supplemented by oral argument. 8 Although the "grounds for review" set forth a number of grounds, what was actually argued may be distilled down to three general areas. 9 Before proceeding further, it is appropriate to briefly look at the grounds of challenge that are available to the plaintiff under the Consumer Trader & Tenancy Tribunal Act 2001 (the Act). Two areas are available. One is provided by s65. It is accepted that this area is not applicable in the present case. The other area is provided by s67 (which deals with appeals). It provides a limited area of challenge. Such area of challenge is restricted to cases where the Tribunal decides a question with respect to a matter of law. This area does not equate with error in point of law. The precise ambit of the area of challenge may be somewhat at large. Be that as it may, it is clear that certain challenges do not fall within its ambit. 10 By way of general observation, it can be said that what was argued on behalf of the plaintiff in this case did not fall within the restrictive ambit of appeal provided by s67. 11 I shall now proceed to make additional but brief observations as to the matters that were argued. 12 Initially, it was sought to agitate matters which involved error in fact finding only. As I understand it, the ultimate position taken by the plaintiff on these matters was that they were not pressed. 13 It seemed to be accepted that erroneous findings of fact were not a basis of challenge pursuant to s67. One of the things that are clear concerning the ambit of s67 is that it does not accommodate challenge on error of fact. 14 The Tribunal did make a finding as to the plaintiff's expenditure (see paragraph 20 of the reasons). The finding was challenged by the plaintiff. There has been debate as to whether or not the finding of fact was erroneous. If it was, the error was not material to the decision reached by the Tribunal. 15 During the hearing before the Tribunal, Mr Knaggs had unsuccessfully made submissions which looked to the decisions of Browne v Dunn (1894) 6HL 67 and Jones v Dunkel (1959) 101 CLR 298 for support. These submissions relied on contentions as to failure to cross-examine and to call witnesses. These matters were agitated again in this appeal. At best, they could have given rise to error in point of law. 16 An aspect of the plaintiff's case before the Tribunal was that the Abacus documentation contained erroneous material concerning the expenditure of the plaintiff. It was to this aspect that the submissions were directed. The evidence from the plaintiff on this matter was unhelpful. Whilst she disputed that the material had been provided by her, she was unsure as to the source of its supply. It was contended that the second defendant had failed to put to her in cross-examination that she had not supplied the material. The plaintiff also relied on the fact that the second defendant did not adduce evidence on this matter. It had taken the view that the leading of evidence was unnecessary. The Tribunal found that the material could only have been supplied by the plaintiff. It was another finding of fact that was not material to the decision subsequently reached by it. 17 For completeness, I should mention certain other aspects. The Tribunal was asked to draw various inferences. These submissions were not accepted. The Tribunal recited certain matters of evidence and made various other findings (see inter alia paragraphs 7, 12-17, 21-22 and 30-34 of the reasons). The findings led the Tribunal to conclude that the loan contract was not unjust within the context of s70 of the Code. 18 Whilst what has already been said disposes of the submissions on this matter, perhaps I should make some further observations. 19 The question of whether the rule in Browne v Dunn has been superseded by provisions in the Evidence Act 1995 was raised but not fully argued. 20 If it be assumed that the rule is still of application, I am not satisfied that either it or what was said in Jones v Dunkel assists the plaintiff in this case. 21 The grounds for review did raise one other matter. It concerned what purported to be the appeal from the decision not allowing a rehearing. Ultimately, it was also not pressed. 22 Section 68 of the Act deals with rehearings. Subsection (1) thereof enables the making of an application for rehearing. Subsection 8 thereof is in the following terms:- The Chairperson's decision whether to grant or refuse the application: (a) may be made without the need for any hearing or meeting, and (b) is not to be considered to be part of the Tribunal's proceedings, and (c) is final and not subject to review of any kind. 23 It seems to me that these provisions make it clear that ss65 and 67 have no application in relation to such a decision and that the legislature has made it clear that such a decision is to be final and not to be subject to review of any kind. 24 The appeal fails. The summons is dismissed. The plaintiff is to pay the costs of the summons. The exhibit may be returned. **********