JUDGMENT
1 Shaw J: This is a matter in which the plaintiff (Ms Jonsson) challenges a decision of the Consumer, Trader and Tenancy Tribunal of NSW ("the Tribunal") asking that this Court set aside the orders of the Tribunal.
2 The issue is whether that Tribunal had the jurisdiction to hear and determine the plaintiff's application under the Consumer Credit Code, "the Code", adopted into New South Wales law by the Consumer Credit (New South Wales) Act 1995 (NSW).
3 The application, in attempting to specify the details of the claim, alleged:
Arkway Pty Ltd has a mortgage over the applicant's house. The applicant is not aware of the circumstances in which Arkway was given the mortgage and did not intend to give a mortgage. Arkway alleges that the mortgage secures a loan to the applicant. The applicant has received no benefit from the alleged loan. The provision of credit on 1 March 1997, 1 March 1998 and 1 March 1999, allegedly secured by variations to the mortgage did not comply with the key disclosure requirements of the Consumer Credit Code. The transactions are unjust and the applicant seeks to have them set aside. The applicant seeks the imposition of a civil penalty on Arkway Pty Ltd.
4 It is said by the plaintiff that there was an error of law made by the Tribunal in finding that it had no jurisdiction to hear her application for relief under the Code, and in particular, an error of law in finding that the transactions between the plaintiff and the first defendant on or about 12 May 1998 and also in June 1998 and September 1999 were not transactions to which the Code applied. A number of other errors of law are detailed in the plaintiff's grounds of appeal.
5 An appeal only lies to this Court on a question of law (pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001) and, accordingly, there is no general right to a rehearing or a reconsideration of factual issues.
6 On 24 November 2000 the Fair Trading Tribunal, constituted by Senior Member G Fleming decided on the papers and without a hearing of the matter, that the Tribunal had jurisdiction to hear the matter. The reasons for the Senior Member's decision ([2000] NSWFTT 2) indicate that the Senior Member found, prima facie, that the respondent had not satisfied her that the variations of the credit contracts of 12 May 1998 and 8 September 1999 were not transactions to which the Code applied. Critically, the Senior Member noted that this conclusion was 'subject to the Tribunal's determination in relation to the 'purpose' of the provision of credit'.
7 With the enactment of the Consumer, Trader and Tenancy Tribunal Act 2001 the Fair Trading Tribunal was reconstituted as the Consumer, Trader and Tenancy Tribunal.
8 On 25 November 2002 the Tribunal determined that it did not have jurisdiction to entertain the plaintiff's application made on or about 2 November 2000 because it was not satisfied that the purpose for which the credit was supplied was one covered by the Code.
9 The central question in this matter therefore concerns the construction of s 6 of the Code. That issue is whether the jurisdictional provision in s 6 of the Code that applies to credit provided for 'personal, domestic or household purposes', means that the Code does not apply to credit obtained for the purpose of providing a home for the borrower's parents as beneficiaries under a trust.
10 It is difficult to see that the words 'domestic' or 'household' advance the argument in favour of jurisdiction in the Tribunal but the focus of the argument before this Court concerned what was meant by the word 'personal' in the context of the Code. In other words, the argument was whether that term is to be given a narrow construction which means that it only pertains to the debtor's personal, domestic or household purposes or whether a more expansive or liberal reading of the text means that it is contemplated that the Code covers the circumstance of providing a home on trust to benefit the parents of the borrower.
11 As I understand it, this legislation was enacted as part of an integrated and coherent national scheme of consumer protection which would commence in NSW on 1 November 1996. Hence, the issue of construction is attended by some degree of importance.
12 In my view, the appeal to this Court does raise a question of law in that it concerns an issue of statutory construction that goes to the jurisdiction of the Tribunal under the Code.
13 Jurisdiction, in any controversy before a statutory tribunal, is always an issue. In most cases this issue will not arise, or be easily dealt with: it will have jurisdiction or it will not. 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.
14 It is for this reason that a finding on jurisdiction, in my opinion, cannot amount to an issue estoppel between the parties, at least in a statutory tribunal like the CTTT. The plaintiff submits that the judgment of the Senior Member constituted such an estoppel so that the defendant was estopped from raising the issue before the Tribunal at trial. I reject that submission.
15 Just as parties cannot, by agreement, confer jurisdiction on a court or tribunal that does not have that jurisdiction, I think that a finding of jurisdiction is, inherently, subject to review, whether by that court or tribunal, or in a supervisory jurisdiction: see R v Shoreditch Assessment Committee; Ex parte Morgan [1910] 2 KB 859 at 880 per Farwell LJ.
16 The basis of the English deviation from Australian administrative law is grounded in the proposition that all errors of law involve jurisdictional errors (see R v Hull; Ex parte Page [1993] AC 682; Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147), but in Australia, it is still the case that a court of judicial review may only correct jurisdictional errors: Craig v South Australia (1995) 184 CLR 163. In Australia, only certain issues will be jurisdictional issues in the context of inferior courts or statutory tribunals with a jurisdiction limited by statute, but those questions remain live throughout the proceedings. For example, a tribunal limited to matters involving adjudication of disputes over topic 'x' will always be concerned with the question of whether the subject of the controversy is 'x' or 'not-x'. This may be a matter of consent between the parties however a wrong finding of either of these options as a matter of law, or a wrong finding of fact or a misapplication of a legal test that leads to such a finding of fact or law, may all amount to jurisdictional errors rendering the proceedings amenable to judicial review and prerogative relief: Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; Craig v South Australia.
17 The Tribunal took the view that the expression in the code, 'personal, domestic and household purposes' was, in effect, compendious and should be subject to the principle of statutory construction of ejusdum generis: see Pearce and Geddes, Statutory Interpretation in Australia (4th Ed) Butterworths (1996) at 100; Mattinson v Multiflow [1977] 1 NSWLR 368 at 375.
18 The Tribunal was concerned with the apparent fact that the original loan and mortgage between the first defendant and the plaintiff on 1 March 1995 was used to refinance prior business debts to the State Bank, and to provide funds to purchase the property at Broadbeach Waters, for the plaintiff's parents, Roy and Noelene Davis.
19 Hence, it is said by the first defendant that the purpose of the transaction was not for the 'personal' purposes of the plaintiff.
20 However, the first defendant fairly concedes that it had the burden to prove that the Code did not apply and also it accepts that there is no evidence that any part of the original loan on 1 March 1995 was used to re-finance any existing debts owed to the State Bank, which were apparently discharged in 1994. Whilst defending the Tribunal's ultimate conclusion, the first defendant concedes that the Tribunal erred in finding that a provision of credit must be either for a purpose which is wholly or pre-dominantly for a personal, domestic or household purpose, or for a business or investment purposes. It comes down to a question as to whether the purpose of the application or use of credit was 'personal'. The first defendant says that 'personal' means the plaintiff's own purposes, and on that basis, contends that the decision of the Tribunal should be affirmed.
21 However, it seems to me that the plaintiff is correct in suggesting that there is a dichotomy in the Code between two classes of purpose for the provision of credit; that is, business or investment purposes on the one hand and 'personal, household or domestic' purposes on the other.
22 This dichotomy, in the context of a jurisdictional issue, mirrors the example I have given. A finding of jurisdiction under s 6 of the Code involves an analysis of whether credit has been provided for a 'personal, domestic or household' purpose or whether the credit was not provided for a 'personal, domestic or household purpose. The Code gives the tribunal some direction on the latter point by indicating that an investment purpose is not a 'personal, domestic or household' purpose. A 'business' purpose may also fall within the latter inquiry.
23 There is a distinction between consumer transactions, to which the Code is principally directed, and business transactions. I would apply the observation of the Full Court of the Supreme Court of Victoria in Minchello v Ford Motor Co of Australia Ltd [1988] VR 251, when dealing with a question whether the Trade Practices Act 1975 (Cth) applied to the purchase of a prime mover, said:
Although the words ' domestic or household ' have a similar connotation, ' personal ' use is clearly intended to cover a wider field, but the primary contrast intended to be drawn is with commercial or business use, whatever other personal activities a vehicle may be used for.
24 However, if a tribunal is satisfied that a transaction is not an investment or business purpose that may not be the end of the matter. A wrong finding in this respect is amenable to review. It is therefore also necessary for the tribunal to consider whether it is satisfied that the credit was provided for a 'personal, domestic or household' purpose.
25 The word 'personal' means 'pertaining to the person': Le Cras v Perpetual Trustee Co Ltd [1967] 2 NSWR 706 at 715. What pertains to something includes matters which are accessory to it, and appropriate or which have reference or relation to it: Shorter Oxford Dictionary (5th Ed). Pertaining to means 'belonging to' or 'within the sphere of': R v Kelly; Ex parte Victoria (1950) 81 CLR 64. It is a concept of extension and should, in my view, be construed broadly.
26 In the context of industrial law, the meaning of 'pertains' (in defining whether there is the requisite employment relationship enlivening the jurisdiction of an industrial tribunal) has been accorded a wide connotation: see, for example, R v Coldham; Ex parte Fitzsimons (1976) 137 CLR 153 at 162. The subject matter of an industrial demand may include:
…much that is outside the contract of employment and its incidents and the work done under it.