Kennett v Financial Ombudsman Service Ltd [2017] NSWCATAP 59

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kennett v Financial Ombudsman Service Ltd [2017] NSWCATAP 59 Hearing dates: 28 November 2016 Date of orders: 17 March 2017 Decision date: 17 March 2017 Before: Hennessy LCM, Deputy President T Simon, Senior Member Decision: 1. The appeal is allowed. 2. The Tribunal's decision is set aside. 3. The issue of whether s 79F of the Fair Trading Act 1987 (NSW) requires that, to constitute a consumer claim, the services must be provided "in trade or commerce" is dealt with by the Appeal Panel by way of a new hearing. 4. The following order is made in substitution for the Tribunal's order: The application is dismissed. Catchwords: STATUTORY INTERPRETATION – meaning of s 79F(1) of Fair Trading Act 1987 – whether that provision requires that, to constitute a consumer claim, the services must be provided in trade or commerce Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 29, s 80 Competition and Consumer Act 2010 (Cth), Sch 2 Consumer Claims Act 1998 (NSW), s 3 (repealed) Fair Trading Act 1987 (NSW) s 79, Part 6A Fair Trading Legislation (Repeal and Amendment) Act 2015 (NSW) Interpretation Act 1987 s3, s 33, s 34 Cases Cited: Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691 David v Vodafone Pty Ltd [2006] VCAT 289 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 Leung v Westpac Banking Corporation (Civil Claims) [2016] VCAT 1367 Richardson v Austin (1911) 12 CLR 463 Rodriguez v United States [1987] USSC 36; 480 US 522 (1987) Victims Compensation Fund Corporation v Brown (2002) 54 NSWLR 668 Texts Cited: DC Pearce and RS Geddes, Statutory Interpretation in Australia, (8th ed 2014, Lexis Nexis Butterworths) at 169 Category: Principal judgment Parties: Melanie Kennett (Appellant) Financial Ombudsman Services Ltd (Respondent) Representation: Counsel: A d'Arville (Appellant) Agent: N Crowhurst (Respondent) File Number(s): AP 16/39568 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 1 July 2016 Before: D Harvey, General Member File Number(s): GEN 16/10436