Nana Asare v Turner Coulson Immigration Lawyers [2015] NSWCATAP 26

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nana Asare v Turner Coulson Immigration Lawyers [2015] NSWCATAP 26 Hearing dates: 9 February 2015 Decision date: 13 March 2015 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President C Paull, Senior Member Decision: Appeal dismissed Catchwords: Civil and Administrative Tribunal - S7 of the Consumer Claims Act - whether Tribunal has jurisdiction Legislation Cited: Consumer Claims Act 1998 NSW Civil and Administrative Tribunal Act 2013 NSW Legal Profession Act 2004 NSW Cases Cited: Doyle v. Hall Chadwick (2007) NSWCA159 Category: Principal judgment Parties: Nana Asare (appellant) Turner Coulson Immigration Lawyers (Respondent) Representation: Appellant: self represented Respondent: Mr Turner File Number(s): AP 14/46499 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 14 July 2014 Before: S Hennings, General Member File Number(s): GEN 14/18860

REASONS FOR DECISION

Background 1. The appellant appeals a decision made on 14 July 2014 in the Consumer and Commercial Division of the Tribunal. The appellant had filed an application in the Division on 8 April 2014 in which he alleged that the respondent had provided "substandard service in relation to work agreement contract" and that "work was not performed as expected". 2. The decision of 14 July 2014 dismissed the appellant's application on the basis that the Tribunal had no jurisdiction to determine the application. The decision found that the agreement between the appellant (then the applicant) and respondent was one which had given rise to a claim concerning the fairness or reasonableness of the costs charged by a solicitor and that, accordingly, the Tribunal had no jurisdiction because of the operation of section 7(5) of the Consumer Claims Act. 3. It is helpful in order to understand the decision of the appeal panel if the relevant background between the parties is set out. This is done in the following paragraphs. 4. The appellant retained the services of the respondent by an agreement in writing between the parties entered into on or about 27 September 2010. The agreement concerned the provision of services which were described in the agreement as "to assist and represent you in an application for a spouse visa to migrate to Australia". The agreement required the payment of fees by instalments and the appellant paid an instalment of $2,200. 5. On or about 21 January 2011 the appellant elected to discontinue the instructions of the respondent and sought recovery of the sum of $2,200 previously paid. The respondent wrote to the appellant by letter dated 27 January 2011 declining to return the monies paid and relying upon the terms of the retainer agreement. Clause 11.2 of that agreement essentially provided that no refund of fees is payable if the client terminates the agreement. 6. Thereafter the appellant took action to recover the sum paid including lodgement of a complaint with the Legal Services Commissioner who in turn referred the complaint to an officer associated with the Department of Migration. Then on or about 22 January 2014 the appellant lodged an application with the Tribunal. The appellant informed the Appeal Panel during the appeal hearing that that application was dismissed on 7 April 2014 by reason of the appellant's non appearance at the hearing of that application. 7. On the following day (8 April 2014) the appellant filed the application which led to the decision of 14 July 2014 (which is the decision from which the appellant appeals). In the application filed on 8 April 2014 the appellant states that he requires an extension of time and states that: "I was very sick on the day of hearing – lost my entire voice. I was severely suffering from tonsillitis on the day of hearing and had a knee pain and unable to walk properly". 1. The Tribunal's jurisdiction to hear and determine the application filed on 8 April 2014 arises by reason of the provisions of the Consumer Claims Act ("CC Act"). Section 7 of that Act is in the following terms: 7 Jurisdiction in respect of consumer claims (cf Act No 206 of 1987, sec 10) (1) General The Tribunal has jurisdiction to hear and determine any consumer claim brought before it under this Part, whether or not the matter to which the claim relates arose before or after the commencement of this Part, except as otherwise provided by this section. (2) Supply or agreement made, or supply intended to be made, in New South Wales The Tribunal has jurisdiction to hear and determine a consumer claim only if: (a) the goods or services to which the claim relates were supplied in New South Wales, or (b) a contract or other agreement to which the claim relates contemplated that the goods or services would be supplied in New South Wales (whether or not they were so supplied), or (c) a contract or other agreement to which the claim relates was made in New South Wales (whether or not the goods or services were supplied in New South Wales). (3) The Tribunal has such jurisdiction whether or not: (a) a contract or other agreement to which the claim relates confers jurisdiction on any other court or tribunal (whether in New South Wales or elsewhere), or (b) the rules of private international law require a law other than the law of New South Wales to be applied to the hearing or determination of the claim. (4) Limitation periods The Tribunal does not have jurisdiction to hear and determine a consumer claim if any of the following apply: (a) the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged, (b) the goods or services to which the claim relates were supplied (or, if made in instalments, were last supplied) to the claimant more than 10 years before the date on which the claim is lodged. (4A) Nothing in this section affects any period of limitation under the Limitation Act 1969. (5) Claim relating to solicitor's or barrister's costs A matter arising in relation to the fairness or reasonableness of the costs charged by a barrister or solicitor for an item of business transacted by the barrister or solicitor is not within the jurisdiction of the Tribunal if the costs can be the subject of a costs assessment under Part 3.2 of the Legal Profession Act 2004. 1. The decision of 14 July 2014 found that the agreement between the parties was an agreement between a client and a solicitor. The Tribunal found that the applicant's claim was that "he wanted a refund in money that he had paid. The applicant was dissatisfied with the level of work that had been undertaken by the respondent for the amount of money that he had paid. The Tribunal was satisfied that it was essentially a claim in relation to the fairness or reasonableness of the cost charged by the solicitor. The respondent submitted that the Tribunal had no jurisdiction to determine such a claim". The Tribunal decided that it should accept the respondent's submission and found that it did not have jurisdiction to determine the matter. The final sentence of the decision stated that the applicant may consider taking the matter to the appropriate legal forum which would have jurisdiction to determine such a claim. However, the appellant did not take the claim elsewhere but instead has lodged this appeal.