The nature of any error of the Tribunal
39 In Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150 the appellants borrowed two amounts of money from two lenders which loans were secured by mortgages over property owned by the appellants. Some two years later the appellants filed applications in the Tribunal seeking relief under ss 70, 72 and 102 Consumer Credit Code - these are the sections that enable the Tribunal to reopen unjust transactions and review unconscionable interest and other charges.
40 The lenders raised as a preliminary issue before the Tribunal that it did not have jurisdiction to hear the applications on the ground that the Code did not apply to the credit contracts because, before entering into the transactions, the appellants had declared for the purposes of s 11(2) of the Code that the credit to be provided was to be applied wholly or predominantly for business purposes. A senior member of the Tribunal upheld the submission and ruled that the Tribunal did not have jurisdiction to hear and determine the subject applications.
41 From that decision the appellants brought proceedings in the Supreme Court under s 67 of the CTTT Act, claiming relief on the basis of an error of law by the Tribunal, apparently invoking at least in part s 67(8) - see at [17] - [20]. That application was dismissed by Harrison AsJ and an appeal was brought to the Court of Appeal. After judgment had been reserved by the Court of Appeal, the appellants were given the opportunity to seek the Court of Appeal's leave to file a new summons claiming relief under s 65 of the CTTT Act. Ultimately, the appellants were successful on the basis of the s 65 summons and unsuccessful in relation to the appeal brought on the basis of the s 67 summons.
42 In those circumstances, the principles established by the Court of Appeal in relation to those proceedings are directly applicable, in my opinion, to the decision in the present case.
43 Tobias JA, with whom Giles JA and Campbell JA agreed, first identified an important distinction in procedure between applications under s 65 and applications under s 67. He said at [33]:
"As I have already observed, it is clear that an appeal under s 67(1) is confined to matters of law with the consequence that it is not open to the Supreme Court on any such appeal to make any findings of fact not agreed or expressly or inferentially made by the Tribunal or to substitute findings of fact for those made by the Tribunal. This is so even though such findings may be relevant to and determinative of the issue that is before the Tribunal and in respect of which error of law is alleged. On the other hand, invoking of that Court's jurisdiction under s 65 would enable it to make such findings of fact as were necessary in order to establish that the Tribunal's ruling that it had no jurisdiction to determine the applications was erroneous."
44 This, of course, is entirely consistent with what the High Court said in Craig (at 176):
"Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the "record" of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record. "
45 For that reason, the affidavit of the Plaintiff sought to be read in the present proceedings is admissible for the purpose of establishing whether the Tribunal's ruling that it had no jurisdiction was erroneous.
46 It is to be noted further that the Court of Appeal in Bahadori did not proceed on the basis that the Tribunal in that case had made the ruling it did as an incident of the exercise of its jurisdiction as was argued by Equity-One in the present case. Indeed, what Tobias JA said at [127] was to the contrary:
"The issue before the Tribunal was whether the Code applied to the subject transactions. A jurisdictional issue arose as a result of the appellants signing the Consumer Credit Code Declarations on 15 November 2002, it being contended by Permanent and Conway that they were signed before any credit contract was entered into within the meaning of s 11(2). Accordingly, the Tribunal first addressed the question of whether such a contract had been entered into prior to that date, it being contended by the appellants that their acceptance of Kremnizers' 13 November letters of offer constituted such a contract." (emphasis added)
47 Further, what the Court of Appeal then went on to do for the remainder of its judgment was to discuss the matters of the presumptions in s 11 and the issue contained in s 6(1)(b) relating to the intention of the provision of credit, in the same way as is necessary to be done in the present case.
48 Equity-One submitted that the point of distinction it makes between the Tribunal giving an erroneous ruling as to its jurisdiction (which it submitted the Tribunal did not do) and the Tribunal coming to a view that because there was not a credit contract within the meaning of s 6 of the Code with the result that it did not have jurisdiction to proceed further (which it asserted the Tribunal did) was not addressed by the Court of Appeal in Bahadori. Rather, Mr Lynch said, Equity-One based itself on what the High Court said in Craig although that was dependent on its being accepted that the Tribunal was a Court (in contra-distinction to an administrative or other tribunal) for deciding the issue about certiorari. However, it seems to me that the statement at [127] that a jurisdictional issue arose as a result of the appellant signing the Declarations in Bahadori necessarily involves the view that a decision about whether the Code applied to the particular contract was a jurisdictional issue with the result that s 65(2)(a) could be invoked.
49 This appears entirely consistent with the last two portions set out (in para 36) above of the High Court's decision in Craig where the judgment refers to jurisdictional error as being where an inferior court makes an order or decision to the effect that it lacks jurisdiction which is based on the mistaken assumption or misconception of the nature or limits of the jurisdiction, or where it misconstrues the statute that gives it jurisdiction. Equity-One's submission that the Tribunal in the present case is to be regarded as a court in Craig terms can be accepted. But, contrary to Equity-One's submission, that does not result in the decision it made being one within its jurisdiction. The facts in Craig, and the position of the District Court in that case, do not make the present situation relevantly analogous.
50 In a similar way to the principle articulated in Craig, Shaw J in Jonsson v Arkway said [at 13]:
"The tribunal may commit an error of law by exceeding that jurisdiction, or by failing to exercise it. A tribunal can make a determination as to its own jurisdiction however any such determination is subject to review by a superior court."
51 Moreover, it would be anomalous if it was open to a party to invoke s 65(3)(a) where the Tribunal made a decision when it fact had no jurisdiction, but a party was not able to invoke s 65(2)(a) where the Tribunal had ruled that it had no jurisdiction. Indeed, it is difficult to see that there is any real difference in the Tribunal declining to exercise jurisdiction and the Tribunal ruling that it had no jurisdiction. In either case, the Tribunal would be obliged to examine some material which may or may not be more than the Application lodged with the Tribunal. A distinction of that type would leave an affected party at the whim of the particular member of the Tribunal in the way the matter was characterised.
52 It seems clear that the only jurisdiction that is given to the Tribunal by s 8 of the Act is jurisdiction expressed to be exercisable by "The Court" wherever it appears in the Code. In that regard, the sections that empower "The Court" to do things in the Code only concern a "credit contract" in any given matter and, because of the definition of "credit contract" in ss 5 and 6 of the Code, it is always necessary for the Tribunal to determine if it can effect any of the powers provided in the Code, which powers are said in s 8 to be the jurisdiction of the Tribunal. That is no doubt why the Court of Appeal in Bahadori said at [127] that as a result of the appellant signing the Declarations (which impact upon s 6 of the Code by virtue of s 11) a jurisdictional issue arose.
53 In my opinion, if the Tribunal's ruling that the application was dismissed because the Tribunal had no jurisdiction was erroneous then that ruling was a jurisdictional error, or, to put it in s 65(2) terms, it was an erroneous ruling as to its jurisdiction.