College of Financial Studies Pty Limited v Tabbouche & Ors

Common Law Division JURISDICTION : Administrative Law List

DECISION : The summons is dismissed; the exhibit may be returned; no order is made as to the costs of the appeal.

CATCHWORDS : Compliance with s49 - consequences of non-compliance and availability of s67 - inconsequential error concerning basis for relief - futility.

Consumer Trader & Tenancy Act 2001, ss49, 67 LEGISLATION CITED : Fair Trading Act 1987, 42 Trade Practices Act 1974, s52

College of Financial Studies Pty Limited (Plaintiff) Ali Ibrahim Tabbouche (First Defendant) PARTIES : Jacques Bussier (Second Defendant) Guillaume Marie Gaston Gebert (Third Defendant) Consumer Trader & Tenancy Tribunal (Fourth Defendant)

In person (Plaintiff) COUNSEL : In person (First, Second & Third Defendants)

In person (Plaintiff) SOLICITORS : In person (First, Second & Third Defendants) I V Knight Crown Solicitor (Fourth Defendant)

LOWER COURT JURISDICTION : Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S) : GEN 04/34088; GEN 04/34084; GEN 04/34209

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

30041 of 2005 College of Financial Studies Pty Limited v Ali Ibrahim Tabbouche & Ors

JUDGMENT 1 His Honour: On 21 March 2005, the plaintiff filed a summons in this court. It seeks to have orders made by the Consumer Trader & Tenancy Tribunal (the Tribunal) on 1 November 2004 set aside. The relief sought relies on the provisions of s67 of the Consumer Trader & Tenancy Tribunal Act 2001 (the Act). 2 There were three applicants in the proceedings before the Tribunal. The applicants are the first, second and third defendants (the defendants) in these proceedings. The plaintiff and a director thereof (Mr Cohen) were the respondents in the proceedings before the Tribunal. 3 The applicants appeared in person and Mr Cohen appeared on behalf of the respondent. 4 After hearing evidence and from the parties the Tribunal proceeded to make orders awarding damages to each of the defendants. Orders were made respectively in the sums of $2,580, $3,000 and $3,200. The orders were made against the plaintiff only. The making of the orders was preceded by the delivery of detailed ex tempore reasons. 5 The plaintiff now proceeds on an amended summons filed on 20 June 2005. The grounds of appeal are as follows:- 1. The Tribunal has failed to give a Statement of Reasons for its Decisions in accordance with Sections 49(2) and 49(3) of the Consumer, Trader and Tenancy Tribunal Act 2001. 2. The Tribunal did not have the jurisdiction to make the Orders it made in respect to the Plaintiff. 6 The appeal was heard on 8 July 2005. Once again, Mr Cohen appeared on behalf of the plaintiff. Once again, each of the defendants appeared in person. 7 The material placed before the court on the hearing of the appeal comprised the affidavit sworn by Mr Cohen. Annexed thereto and marked "A" was a document provided by the Tribunal in response to a request for reasons (the written reasons). 8 The court did not have before it the Tribunal file (in particular, it did not have the applications, the transcript of the evidence and any of the documents tendered during the hearing). 9 Section 67 provides an avenue of appeal in those cases where the Tribunal decides a question with respect to a matter of law. The section provides that a reference to a matter of law includes a reference to "a matter relating to the jurisdiction of the Tribunal". 10 The section is intended to provide a narrow avenue of appeal. The avenue is not equivalent to an avenue of appeal available where there has been error in point of law. There is authority for the proposition that it should be confined to a pure question of law. 11 The onus rests with the plaintiff to satisfy the court that there has been error that falls within the ambit of s67 and which justifies a disturbing of the decision of the Tribunal. 12 Before proceeding further, it has to be observed that the summons has been filed well out of time. Accordingly, the present appeal is incompetent unless an extension of time is granted. 13 The court has a discretion to extend time. The discretion is exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served. The onus rests on the plaintiff to demonstrate an entitlement to such extension. 14 The relevant circumstances include the extent of the delay, the explanation offered for delay and the merits of the proposed appeal. 15 In this case, the delay is significant. No affidavit material is put forward to explain that delay. These considerations alone would suffice to cause an extension application to fail. 16 Be that as it may, I shall still look at the question of the merits of the proposed appeal. There are two issues to be considered. 17 The first question concerns the matter of reasons. 18 Section 49 of the Act is in the following terms:- 49 Notice of decisions and reasons (1) The Tribunal must, within the time prescribed by the regulations, give notice of its decision in a matter that is the subject of proceedings to the parties in the proceedings. The notice must indicate that any party may, within 14 days of receiving notice of the decision, request the Tribunal to provide a statement of reasons for its decision. (2) Any party may, within 14 days of receiving notice of the decision, request the Tribunal, in the manner prescribed by the regulations, to provide a statement of reasons for its decision. The statement must be provided within 7 days after the request is made. (3) The statement may be brief but must: (a) set out the decision and the reasons for it, and (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. 19 A request was made pursuant to s49(2). As earlier mentioned, it produced the written reasons (but not within the prescribed period of seven days). 20 The written reasons set out the orders made by the Tribunal and the following:- REASONS FOR DECISION On 1 November 2004 the three matters referred to above were listed concurrently before me for hearing. At the conclusion of the evidence on that day I gave my reasons and made the orders as set out above. From my perusal of the Tribunal record it appears that the respondent in all three proceedings requested written reasons by letter received on 15 November 2004. This request was forwarded to me between 24-28 January 2005. On 2 February 2005 I requested and the Chairperson approved, that I be provided with a transcript of my oral reasons of 1 November 2004. On 28 February 2005 I was provided with a written transcript. In view of the time that has elapsed since the date of my decision I now enclose a copy of the transcript as the best record and account of my decision, reasons and findings as required under s49(2) of the Consumer, Trader and Tenancy Tribunal Act 2001. 21 The enclosed transcript contained the ex tempore reasons delivered by the Tribunal member. In my view, those reasons adequately disclosed the reasoning process of the Tribunal member. 22 Further, I consider that the material provided by the Tribunal (including the ex tempore reasons) satisfies the requirements of s49(3). Even if the material did not satisfy those requirements, the appeal on this point would still be doomed to failure. 23 Section 49 imposes an obligation on the Tribunal to provide a statement of reasons for its decision within seven days after the request is made. The Act is silent as to whatever consequences might flow from non-compliance with the provisions of s49. If there be any such consequences, I am not persuaded that they would be such as to entitle the bringing of an appeal pursuant to s67. It may be that relief is available pursuant to s65. 24 As has been said in previous cases, a failure to give adequate reasons does not give rise to an appeal falling within the ambit of s67. An appeal only lies under s67 where there is a decision of the Tribunal and that decision decides a question with respect to a matter of law. 25 For completeness, I should add that this ground of appeal is misconceived for another reason. Ex tempore reasons may be revised. However, the scope of revision is a limited one. In substance, there should be no alteration. A revision should be restricted to grammatical matters and the like. 26 The second question concerns what is put forward as a jurisdictional matter. 27 It appears from the reasons and what was said from the bar table that the plaintiff was a training organisation that provided courses and that each of the defendants enrolled for a course with it. 28 Each of the defendants was unhappy with what was provided by the plaintiff and sought recovery of the fees paid to it. 29 The application forms were prepared by the defendants themselves and made no reference to any legislation. 30 In substance, they were claiming that there had been misrepresentation by the plaintiff in that the course provided was what has been described as "PS146 compliant" in accordance with a policy statement of the Australian Securities and Investments Commission (ASIC) and that the course would allow them to engage in financial planning (they would obtain a diploma that would enable them to carry out financial advice work for clients). 31 The Tribunal member accepted the evidence given by the defendants. She found that the alleged representation had been made, that it was untrue and that each of them was entitled to damages. 32 As I understand the position, none of the parties made mention of any legislation during the proceedings before the Tribunal. 33 The written reasons contain the following observation:- I find that the respondent's conduct is misleading under s42 of the Trade Practices Act.

This clearly contains an error. What it may be is uncertain. In any event, it is of no consequence. 34 Sections 42 of the Fair Trading Act 1987 (NSW) and 52 of the Trade Practices Act 1974 (Cth) are similar. Which of the two provisions the Tribunal member had in mind may be somewhat debatable. 35 Little was said by the parties on the question of what jurisdiction (if any) is had by the Tribunal in respect of provisions of the Trade Practices Act. However, it seems to me that that is a question that need not be pursued. 36 What was done by the Tribunal is sustainable by reason of the provisions of s42 of the Fair Trading Act. There can be no dispute (nor is there) that the Tribunal has jurisdiction to entertain a claim founded on s42 thereof. 37 In my view, it would be an exercise in futility to allow the appeal on the second ground and order a re-hearing. It would produce the same result. All it would achieve would be to put the parties to further trouble and expense in a case where the amounts involved are very modest. 38 As the proposed appeal is devoid of any merit, no good purpose could be served by granting an extension of time in which to bring the appeal 39 Accordingly, the application for extension of time is refused and the appeal is doomed to failure. 40 The summons is dismissed. The exhibit may be returned. No order is made as to the costs of the appeal. 41 I have not made any order for costs as the parties have appeared in person and it would be futile to make any order for costs in favour of the defendants as they have informed the court that they have not incurred any expense which would be recoverable by way of legal costs.

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