Lam v Steve Jarvin Motors Pty Ltd

Lam v Steve Jarvin Motors Pty Ltd - [2016] NSWCATAP 186 - NSWCATAP 2016 case summary — Zoe

[4]

Background

Mr Lam agreed to purchase a Nissan Qashqai from Steve Jarvin Motors in January 2015 and took delivery of it on 19 March 2015. Mr Lam paid $40,236.99 in respect of the vehicle, that sum being made up of $38,086.99 (the cost of the car), $1,143.00 (stamp duty), $446.00 (the cost of 12 months registration) and $561.00 (the cost of CTP insurance).
On about 20 March 2015, Mr Lam returned the vehicle to Steve Jarvin Motors because of rust and other issues and sought a refund of the money he had paid in respect of the vehicle. On 25 March 2015, Steve Jarvin Motors refused to refund the money. This position was confirmed by letter on 8 April 2015.
Eventually, Mr Lam commenced proceedings in the Tribunal on 1 May 2015 against Steve Jarvin Motors and Nissan. Mr Lam's claims, as finally articulated in his points of claim filed on 15 July 2015, were principally based on allegations that there had been: 1. a "major failure" by Steve Jarvin Motors to comply with the consumer guarantees: 1. as to acceptable quality arising under s 54 of the ACL NSW; 2. as to fitness for any disclosed purpose arising under s 55 of the ACL NSW; and 3. relating to the supply of goods by description arising under s 56 of the ACL NSW; 1. misleading and deceptive conduct by Steve Jarvin Motors.
Relief was also claimed against Nissan, based on the right, under ss 271 and 272 of the ACL NSW, to recover damages against a manufacturer for non-compliance with the consumer guarantees arising under ss 54 and 56 of the ACL NSW.
Mr Lam's application form made it clear, in the heading, that the application was made under s 6 of the Consumer Claims Act 1998 (NSW) (the CC Act). The CC Act was in force at the time Mr Lam commenced his proceedings. On 1 October 2015, however, the CC Act was repealed and effectively re-enacted as Pt 6A of the Fair Trading Act 1987 (NSW) (the FT Act).
The applicable transitional provisions concerning the repeal and re-enactment of the CC Act are found in cll 28 - 32 of Sch 5 to the FT Act. In particular, cl 29(2) states that the former CC Act continues to apply in relation to a consumer claim the subject of an application made under s 6 of the CC Act "that is not finally determined".
The oral hearing of Mr Lam's application took place on 7 September 2015. Further submissions were requested by the Tribunal at first instance on 27 November 2015 and the decision was not made until 12 February 2016. Consequently, as at 1 October 2015 when the CC Act was repealed and Pt 6A of the FT Act came into force, Mr Lam's claims were not finally determined. In these circumstances, cl 29(2) of Sch 5 of the FT Act applies so that the claims are to be dealt with under the CC Act and not Pt 6A of the FT Act. This was not in dispute between the parties.

[5]

The Decision at First Instance

The Tribunal at first instance held that it did not have jurisdiction to grant a remedy in respect of a failure to comply with the consumer guarantees arising under ss 54, 55 or 56 of the ACL NSW - Reasons at [97]. Further, the Tribunal held that Mr Lam had not established that Steve Jarvin Motors had engaged in conduct that was misleading or deceptive or likely to mislead or deceive, in contravention of s 18 of the ACL NSW, even if the Tribunal had jurisdiction to hear and determine a claim based on such a contravention (which the Tribunal below only accepted because of the Appeal Panel's decision to that effect in Jenkinson v Chaw [2015] NSWCATAP 127) - Reasons at [155] and [156].
In case the Tribunal below was wrong in concluding that it did not have jurisdiction to grant a remedy in respect of a failure to comply with a consumer guarantee, the Tribunal, very properly, considered whether the claims based on failure to comply with the consumer guarantees arising under ss 54, 55 and 56 of the ACL NSW had been made out. This course was most appropriate as it meant that relevant findings in this regard were made and were available to be relied upon by the Appeal Panel to dispose of the appeal without the need for the matter to be remitted to the Consumer and Commercial Division. In summary, the Tribunal below concluded that: 1. the consumer guarantees under ss 54, 55 and 56 applied in this case - Reasons at [162] and [164]; 2. as to the guarantee under s 54 of acceptable quality: 1. Steve Jarvin Motors and Nissan had failed to comply with the guarantee - Reasons at [189] - [190]; 2. Mr Lam had notified Steve Jarvin Motors that he rejected the goods and also notified Steve Jarvin Motors of the grounds for the rejection within s 259(2)(a) of the ACL NSW and none of the circumstances in s 262 applied - Reasons at [192]; 3. the failure was a "major failure" within s 260(a) of the ACL NSW - Reasons at [193] - [198]; 4. upon return of the vehicle by Mr Lam to the dealer, Steve Jarvin Motors was required to refund the money paid by Mr Lam for the Qashqai, which the Tribunal found was $40,236.99 - Reasons at [199]; 5. Mr Lam had not made out a case for relief against Nissan because: 1. Nissan would only be liable for damages under s 271 of the ACL NSW if, relevantly, the guarantee under s 54 was not complied with only because of a cause independent of human control that occurred after the goods left the control of the manufacturer - Reasons - [204]; and 2. it was not clear from the evidence when the rust in the vehicle had occurred, whether this was after the vehicle left the control of Nissan or whether the rust occurred "because of a cause independent of human control" - Reasons - [204] - [205]. 1. As to the guarantee of fitness for purpose under s 55 of the ACL NSW, it was not necessary to consider this matter in the light of the Tribunal's findings concerning the guarantee of acceptable quality - Reasons at [208]; 2. As to the guarantee under s 56 relating to the supply of goods by description, the Tribunal below was not persuaded that Steve Jarvin Motors or Nissan had failed to comply with this guarantee - Reasons at [167].
Finally, in relation to costs, the Tribunal at first instance: 1. refused to award costs in Mr Lam's favour for various reasons including that he had been unsuccessful - Reasons at [214]; and 2. held that, even if it did have jurisdiction to grant a remedy for failure to comply with a consumer guarantee arising under the ACL NSW, it would still not have awarded costs in Mr Lam's favour - Reasons at [215] - [220].
Accordingly, on 12 February 2016, the Tribunal at first instance provided written reasons for decision and made orders as follows: "1. Application dismissed 2. Applicant's costs application dismissed."

[7]

Notice of Appeal

In his notice of appeal, Mr Lam sought the following orders from the Appeal Panel: "1. That the orders made by Tribunal Member on 12 February 2016 be set aside. 2. In lieu, that the first respondent Steve Jarvin Motors Pty Ltd be ordered to refund the applicant the amount of $40,236.99. 3. That the first respondent pay the applicant the costs of the proceedings before the Tribunal at first instance. 4. That the first respondent pay the applicant the costs of the appeal."
The grounds of appeal upon which Mr Lam relied were set out in annexure 1 to the notice of appeal in the following terms: "1. The Tribunal made an error of law when it held that the Tribunal had no jurisdiction to hear a claim concerning an alleged failure to comply with a consumer guarantee. The effect of this decision is that any refund ordered to an applicant in this Tribunal prior to this decision by reason of a failure of a supplier to comply with a consumer guarantee was done without jurisdiction. 2. The Tribunal made an error of law when it held that Part 5-4 of the Australian Consumer Law ("ACL") did not apply in the Tribunal. Part 5-4 of the ACL applies to the Tribunal and the Tribunal has the power to hear claims concerning an alleged failure to comply with a consumer guarantee and can order the relief sought by the appellant because amongst other things: (a) the ACL applies to the tribunal, by virtue of s 27 and 28 of the Fair Trading Act 1987; (b) Part 5-4 forms part of the ACL; (c) section 8 of the Consumer Claims Act 1998 NSW ("CCA") provides that the tribunal may amongst other things order a refund; (d) section 13 of the CCA the Tribunal "must make such orders as, in its opinion, will be fair and equitable to all the parties of the claim" 3. The Tribunal's decision of this jurisdictional point, is contrary to other decisions of the Tribunal, for instance, the decision is irreconcilable with the decisions of: (a) Hereford v Automobile Direct Wholesale Pty Ltd [2015] NSWCATCD 58; (b) Paul Masden v Agricorn Pty Ltd [2014] NSWCATCD 79; (c) Alex Pordage t/as Pattisserie Fe Fi Fo v Chrystal & Co Pty Ltd t/as Caterlink [2014] NSWCATCD 72; and (d) The Case Study Published on the NCAT Website. 4. Furthermore, the Tribunal's decision is irreconcilable with the Appeals Panel decision in Drivas v Burrows [2014] NSWCATAP 87 where the appeal panel considered sections of Part 5-4 in its reasoning. 5. The Tribunal made an error of law when it held at paragraph 125 of the written decision that the Fair Trading Act and Australian Consumer Law (NSW), taken together, evinced an intention that only a court (and not the Tribunal) may grant a remedy under part 5-4, thereby excluding the jurisdiction of NCAT. 6. Further to the above ground, schedule 4 of the Civil Administrative Tribunal Act 2013 at Part 3 sets out the functions of the Division/functions of the Tribunal in relation to a number of acts including the Fair Trading Act and the Australian Consumer Law (NSW). 7. Further to the above ground, schedule 4 of the Civil Administrative Tribunal Act 2013 at Part 5 clause 1 defines court to mean amongst other things a Tribunal. 8. The Tribunal made an error of law when it held at paragraph 138 of the written reasons that it doubted the Tribunal's jurisdiction to determine a consumer claim under the Consumer Claims Act included the power to determine claims made in reliance upon ACL NSW, except as provided for by s 30(4) and s74(3) of the Fair Trading Act, notwithstanding the fact that the Appeal Panel ruled to the contrary in Jenkinson v Chaw [2015] NSWCATAP 127 with regards to claims under s 18. 9. The part of the written decision of the decision that concerned the question of costs, that is, paragraphs 209-220 was wrongly decided as the Tribunal: (a) was not required to make a finding of special circumstances before award costs per r 38(2)(b) of the Civil and Administrative Tribunal Rules 2014 and thus the reasons put forward by the appellant for his costs justified a costs order; and (b) was wrong in stating that the applicant's case was not overwhelming, and that the applicant's limited English did not amount to a sufficient reason to award costs."
There is a degree of overlap between the various matters raised in grounds 1 to 7, which all address, directly or indirectly, the question of whether the Tribunal below erred in law in concluding that it lacked jurisdiction to grant a remedy in respect of a failure to comply with a consumer guarantee arising under the ACL NSW.
Ground 8 seeks, in effect, to raise the question of whether the Tribunal below erred in law when it doubted the correctness of the Appeal Panel's decision in Jenkinson v Chaw. Although the Tribunal did spend 40 paragraphs recording its views about the construction and application of s 74(3) of the FT Act and related matters (Reasons [99] to [138]), which were said to give rise to doubts about the correctness of the Appeal Panel's decision, the Tribunal below did, in fact, follow the decision of the Appeal Panel in Jenkinson v Chaw and made the relevant part of its decision on the basis that the Tribunal did have jurisdiction to determine a claim based upon a contravention of s 18 of the ACL NSW, see the Reasons at [138]. The doubts expressed in those 40 paragraphs were not, therefore, relied upon as the basis for the Tribunal's decision in regard to the alleged contravention of s 18.
An internal appeal to the Appeal Panel can only be made, under s 80 of Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), against an internally appealable "decision". Under s 5(1) of the NCAT Act, a "decision" includes: "(a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refusing to do any other act or thing."
An expression of doubts or opinions which does not involve making an order or doing any of the other things mentioned in s 5(1) does not amount to a "decision" and, accordingly, such an expression of doubts or opinions cannot be the subject of an internal appeal under s 80 of the NCAT Act. This is especially so where the doubts or opinions were expressly not relied upon in reaching the decision and making the orders actually made.
For these reasons, it appears to the Appeal Panel that ground 8 does not amount to a legitimate ground of appeal. This is consistent with the approach taken by the Court of Appeal in TriCare (Hastings) Limited v Allen [2015] NSWCA 344, where an appellant sought to challenge obiter remarks of the trial judge rather than appeal from any "judgment or order". At [11], the Court held that in those circumstances the appeal was misconceived and incompetent and therefore should be dismissed.
Ground 9 appears to us to raise two issues in relation to the Tribunal's decision to dismiss Mr Lam's application for costs, namely: 1. whether the Tribunal erred in law by considering whether there were special circumstances which warranted the making of a costs order in the present case as if s 60(2) of the NCAT Act applied when in fact the discretion to award costs arose under r 38 of the Rules and was not limited to cases where there were special circumstances; and 2. whether the Tribunal misunderstood the facts and thus erred in refusing to make a costs order in the particular circumstances of the case.
In these circumstances, the Appeal Panel is of the view that the substance of Mr Lam's legitimate grounds of appeal can be distilled into two principal questions: 1. whether the Tribunal erred in law in holding that it had no jurisdiction to grant a remedy in respect of a failure to comply with a consumer guarantee arising under s 54 of the ACL NSW - grounds 1, 2, 3, 4, 5, 6 and 7; and 2. whether the Tribunal, when it refused to exercise its discretion to award costs in Mr Lam's favour: 1. made an error of principle; or 2. mistook the facts

ground 9.

[13]

The Nature of the Appeal

In the present case, both the decision by the Tribunal below to dismiss the proceedings because the Tribunal lacked jurisdiction and its decision not to award costs are decisions made in proceedings for a general decision (within the meaning of s 29 of the NCAT Act) and thus they are internally appealable decisions within s 32(1)(a) of that Act. We have explained above why the doubts expressed by the Tribunal below as to the correctness of the decision in Jenkinson v Chaw do not constitute a "decision", which could be the subject of an appeal.
Under s 80 of the NCAT Act any party may appeal to the Appeal Panel against an internally appealable decision. Section 80 provides, in part: "(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."
Neither the decision to dismiss the proceedings for want of jurisdiction nor the decision not to award costs falls within the definition of "interlocutory decision" in s 4(1) of the NCAT Act. Rather, each is an "ancillary decision" which is defined in s 4(1) as meaning: "a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including: (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings."
Accordingly, under s 80(2)(b), Mr Lam may appeal against the decision concerning jurisdiction and the costs decision as of right on a question of law and by leave on any other ground. Both principal questions (1) and (2)(a) into which the Appeal Panel has distilled Mr Lam's grounds of appeal, and the underlying grounds of appeal themselves, can be seen as involving questions of law. To that extent, Mr Lam does not require leave to appeal but may appeal as of right. To the extent that principal question (2)(b) contends that the Tribunal below erred in making certain findings of fact but did not err in relation to any legal principle, Mr Lam requires leave to appeal.

[15]

The Reasoning of the Tribunal Below as to Why the Tribunal Lacked Jurisdiction

The Tribunal below considered the jurisdiction of the Tribunal under the CC Act to grant remedies in Mr Lam's case and noted at [40] of its reasons for decision: "[t]here is no doubt that, on its face, the applicant's claim meets this description of a 'consumer claim' in the Consumer Claims Act." The main issue, as the Tribunal saw it, was (at [40]): whether the provisions of the Consumer Claims Act are incompatible with the scheme for dealing with a failure to comply with a consumer guarantee in the Australian Consumer Law (NSW) ("Remedies relating to Guarantees"), such that, on a proper construction of both pieces of legislation, the Tribunal does not have jurisdiction to determine a claim concerning a failure to comply with a consumer guarantee under the Consumer Claims Act.
The Tribunal at first instance then identified 3 possibilities that it perceived might be applicable in the situation before it: 1. The CC Act, on its proper construction, did not apply to a claim concerning an alleged failure to comply with a consumer guarantee under the ACL NSW - at [42]. 2. The CC Act was consistent with the consumer guarantee provisions in Pt 3-2 and the remedies for failure to comply with a consumer guarantee in Pt 5-4 of the ACL NSW and the Tribunal could grant remedies under the CC Act in respect of a failure to comply with a consumer guarantee - at [43]. 3. The ACL NSW, which is a later statute than the CC Act, was inconsistent with and impliedly repealed the earlier Act insofar as a "consumer claim" concerns a failure to comply with a consumer guarantee - at [44].
The essential reasoning of the Tribunal at first instance can be summarised as follows, although this summary does not do justice to the thoroughness and extensiveness of the reasons for decision: 1. The remedies established by Pt 5-4 of the ACL NSW are detailed and specific, more so than the previous regime under Div 4 of Pt 4 of the FT Act, and the comprehensiveness of the scheme in Pt 5-4 is such that it approaches a code - [78] and [79]; 2. "The exhaustiveness of the remedial scheme established by Part 5-4 … is a significant indicator of a legislative intention that it is the only remedial scheme which is to apply in respect of consumer guarantees" - [79]; 3. The remedies available under the CC Act are different from those available under Pt 5-4 because s 13 of the CC Act requires the orders to be fair and equitable and there is no similar requirement in the ACL NSW. This amounts to an inconsistency. While the remedies overlap, "there is an element of arbitrariness about these common elements" - [80] and [84] - [85]; 4. The consumer guarantee provisions of the ACL NSW are part of a national scheme and to allow different orders to be made under the CC Act in respect of failures to comply with the consumer guarantees would detract from the uniformity of the national scheme - [81]; 5. Provisions such as s 259 of the ACL NSW confer both a right and a remedy and this is "inconsistent with an action being a 'consumer claim' under the [CC Act], which contains its own provisions conferring the right to bring an action and the conferral of a remedy" - [87]. 6. The legislature has made no provision for how these two sets of remedial provisions in Pt 5-4 of the ACL NSW and the CC Act, which on their face are inconsistent, are to be reconciled - [88].
Applying the principle that provisions in different Acts of the same legislature should, where possible, be construed so as to operate in harmony with one another and not in conflict, the Tribunal below held that "the two sets of provisions may be reconciled so that it is not the case that they are 'so inconsistent that they cannot stand or live together'" (at [95]). The Tribunal sought to achieve that reconciliation as follows (at [96]): "The remedial provisions in the Australian Consumer Law (NSW) deal exhaustively with the topic of remedies for failure to comply with a consumer guarantee. This points to a legislative intention that they are to be dealt with as contemplated by the Australian Consumer Law (NSW) and not otherwise. A harmonious construction of both pieces of legislation can be achieved by reading "consumer claim" in the Consumer Claims Act down so that it does not to refer to claims in respect of a failure to comply with a consumer guarantee under the Australian Consumer Law (NSW)."
The Tribunal below then concluded (at [97]) that: "the Tribunal does not have jurisdiction under the Consumer Claims Act to determine an action under s 259 of the Australian Consumer Law (NSW) or to grant a remedy in respect of a failure to comply with a consumer guarantee."
The Appeal Panel is of the view that this conclusion is erroneous and the Tribunal did have jurisdiction under the CC Act, and continues to have jurisdiction under Pt 6A of the FT Act, to grant remedies where there has been a failure to comply with a consumer guarantee arising under the ACL NSW, if the requirements of the CC Act (or now Pt 6A) are otherwise satisfied.
Our reasons for reaching this conclusion rely on the principles concerning the construction of related and potentially contradictory statutory texts of the same legislature and how those principles apply to: 1. the consumer guarantee and related remedial provisions of the ACL NSW; and 2. the provisions of the CC Act (now Pt 6A of the FT Act) conferring jurisdiction on the Tribunal to determine "consumer claims".

[16]

Principles concerning the Construction of Related Statutory Texts

The principles concerning the construction of related statutory texts, or statutory texts which might both apply in the one set of circumstances and which are potentially contradictory, include the following: 1. The relationship between two statutes or statutory texts of the same legislature is one of legislative intention, extracted from all available indications: Commissioner of Police v Eaton [2013] HCA 2; 252 CLR 1 at [45], [46]; Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 at 553-554; 2. The legislative intention is to be determined by reference to the text of the enactments considered in context: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78]. 3. Statutory texts enacted by the same legislature, whether in different statutes or the one statute, are to be construed so far as possible to operate in harmony and not in conflict: Commissioner of Police v Eaton [2013] HCA 2; 252 CLR 1 at [98]; 4. There is a strong, general presumption that a legislature does not intend to contradict itself and thus two sets of statutory provisions of the same legislature should generally be construed and applied so that both operate; a finding of such contrariety that the two cannot be reconciled will only be reached after careful consideration of each set of provisions: Commissioner of Police v Eaton [2013] HCA 2; 252 CLR 1 at [98]; Potier v Attorney General in and for the State of New South Wales [2015] NSWCA 129; 89 NSWLR 284 at [53]; Firebird Global Master Fund II Ltd v Republic of Nauru [2014] NSWCA 360; 89 NSWLR 477 at [48] and [259].
In the light of those principles, if the consumer guarantee and related remedial provisions of the ACL NSW can be construed so that they and the provisions of the CC Act conferring jurisdiction on the Tribunal can both operate, that construction is to be preferred to a construction which would prevent the provisions of the CC Act from operating in relation to "consumer claims" arising out of failure to comply with consumer guarantees.

[18]

Relevant Aspects of the Previous Consumer Protection Regime

Prior to 1 January 2011, the New South Wales and other legislatures in Australia sought to protect consumers who were supplied with goods or services in trade or commerce by various means including the statutory implication of conditions and warranties into the relevant supply contract. Those conditions and warranties included, among others, ones as to title, merchantable quality and fitness for purpose. The New South Wales provisions were contained in Div 4 of Pt 4, ss 40L - 40S, of the FT Act (in its pre-January 2011 form) and the corresponding Commonwealth provisions could be found in Div 2 of Pt V, ss 66 - 74, of the Trade Practices Act 1974 (Cth) (as the Competition and Consumer Act 2010 (Cth) was then called) (the TPA).
To take a specific, relevant example, s 40Q(1) of the FT Act and s 71(1) of the TPA both implied a condition that goods supplied would be of "merchantable quality". The only significant difference between the two subsections was that the Commonwealth provision commenced with the words "Where a corporation supplies …" and the New South Wales provision's opening words were "If a person supplies …". The other very minor variations in wording were of no significance. Section 40Q(1) was in the following terms: "(1) If a person supplies (otherwise than by way of sale by auction) goods to a consumer in the course of a business, there is an implied condition that the goods supplied under the contract for the supply of the goods are of merchantable quality, except that there is no such condition by reason only of this section: (a) as regards defects specifically drawn to the consumer's attention before the contract is made, or (b) if the consumer examines the goods before the contract is made - as regards any defect that the examination ought to have revealed."
Thus, in order to obtain the benefit of s 40Q(1) in respect of the supply of defective goods, a consumer was required to establish that: 1. he, she or it fell within the definition of "consumer" in s 5 of the FT Act; 2. a person "supplied", otherwise than by sale by auction, "goods" to the consumer in the course of a "business", within the meaning of each of those terms in s 4(1) of the FT Act; 3. the goods were supplied under a contract for the supply of the goods; 4. the defects in the goods were not specifically drawn to the consumer's attention or, if the consumer examined the goods before the contract was made, the defects would not have been revealed; 5. the defects had the consequence that the goods were not of "merchantable quality" as explained in s 40L(3) of the FT Act.
If each of those was established, the consumer could recover damages for breach of contract and might have other rights at common law consequent upon breach of a condition in a contract.
An obvious limitation on the protection afforded by this type of implied condition or warranty regime is that it could only apply if the supply occurred under a contract between the consumer and the supplier. Another limitation was that the principal form of relief was an action for damages for breach of contract subject to all the principles developed by the common law concerning the remedy of damages.
This latter limitation was alleviated to some extent by the creation of a statutory right to rescind and recover a refund of the consideration paid for the goods if a condition implied by the statute was breached. That statutory right to rescission and to a refund was found in s 40N of the FT Act (in its previous form) and s 75A of the TPA. Once again, the only difference of significance between those provisions was that the Commonwealth provision applied to corporations and the New South Wales act applied to persons generally. Section 40N was in the following terms: 40N Rescission of contracts (TPA s 75A) (1) If: (a) a person (the supplier) supplies goods to a consumer in the course of a business, and (b) there is a breach of a condition that is, by reason of a provision of this Division, implied in the contract for the supply of the goods, the consumer is, subject to this section, entitled to rescind the contract by: (c) causing to be served on the supplier a notice in writing signed by the consumer giving particulars of the breach, or (d) causing the goods to be returned to the supplier and giving to the supplier, either orally or in writing, particulars of the breach. (2) If a consumer purports to rescind under this section a contract for the supply of goods by a person, the purported rescission does not have any effect if: (a) the notice is not served or the goods are not returned within a reasonable time after the consumer has had a reasonable opportunity of inspecting the goods, or (b) in the case of a rescission effected by service of a notice - after the delivery of the goods to the consumer but before the notice is served: (i) the goods were disposed of by the consumer, were lost, or were destroyed otherwise than by reason of a defect in the goods, or (ii) the consumer caused the goods to become unmerchantable or failed to take reasonable steps to prevent the goods from becoming unmerchantable, or (iii) the goods were damaged by abnormal use, or (c) in the case of a rescission effected by return of the goods - while the goods were in the possession of the consumer: (i) the consumer caused the goods to become unmerchantable or failed to take reasonable steps to prevent the goods from becoming unmerchantable, or (ii) the goods were damaged by abnormal use. (3) If a contract for the supply of goods by a person (the supplier) to a consumer has been rescinded in accordance with this section: (a) if the property in the goods had passed to the consumer before the notice of rescission was served on, or the goods were returned to, the supplier - the property in the goods re-vests in the supplier on the service of the notice or the return of the goods, and (b) the consumer may recover from the supplier, as a debt, the amount or value of any consideration paid or provided by the consumer for the goods. (4) The right of rescission conferred by this section is in addition to, and not in derogation of, any other right or remedy under this or any other Act or law.
It can be observed that under s 40N(3)(b) of the old FT Act (and s 75A(3) of the TPA), if a consumer rescinded a supply contract in accordance with that section, the consumer was given an express right to recover, as a debt, the amount of consideration paid for goods under a contract that had been rescinded. That is, in effect, a right to obtain a refund of the purchase price of the goods.
Division 4 of Pt 4, ss 40L - 40S, of the FT Act did not contain any express conferral of jurisdiction on any court or tribunal in respect of the remedy provided by s 40N or any other remedies that might be available in the circumstances.
Prior to 1 January 2011, the Courts of New South Wales had the jurisdiction conferred on them by their various founding statutes and by other Acts. Nonetheless, a consumer was not limited to bringing proceedings in a Court in order to obtain remedies for the supply of defective goods by a supplier. As an alternative to Court proceedings, a consumer could bring proceedings in the Consumer, Trader and Tenancy Tribunal (the CTTT) to enforce a claim for damages or for relief under s 40N if the claim was a "consumer claim" and the other jurisdictional requirements were satisfied. Under the CC Act, the CTTT had jurisdiction to hear and determine a "consumer claim" and, in so doing, to make certain specified types of orders.
Section 2A of the CC Act stated that the objects of the Act were to provide remedies to consumers concerning the supply of goods and services and to simplify and improve dispute resolution for parties to consumer disputes. Similarly, the long title of the Act was "An Act to provide certain remedies to consumers concerning the supply of goods and services; …".
The objects and the long title of the CC Act demonstrate that the Parliament's intention was to provide for consumers remedies and simple procedures for obtaining the remedies which the CTTT had power to grant in relation to the supply of goods and services. Until 1 January 2011, the principal consumer protection provisions in respect of the supply of goods and services were found in Div 4 of Pt 4, ss 40L - 40S, of the FT Act. Thus, it can be concluded that claims under Div 4 of Pt 4 of the FT Act were to form a significant part, at least, of the claims over which the CTTT had jurisdiction under the CC Act.

[19]

Consumer Protection and the Australian Consumer Law after January 2011

On 1 January 2011, the ACL NSW came into force and the provisions of the FT Act which had previously implied conditions and warranties into consumer supply contracts were repealed and effectively replaced by a new regime of statutory "guarantees" together with certain statutory remedies. These new guarantees and remedies were based upon the New Zealand Consumer Guarantees Act 1993 (NZ).
The national, consumer protection regime, of which the ACL NSW is part, involved, among other things, the repeal of: 1. Pts V, VA and other provisions of the TPA of the Commonwealth; 2. corresponding provisions, including Div 4 of Pt 4, ss 40L - 40S, of the FT Act of New South Wales; and 3. similar legislative provisions in other States and Territories.
All of these repealed provisions were replaced with the text of Sch 2 to the Commonwealth Competition and Consumer Act. The Commonwealth and each participating State and Territory passed laws applying the text of Sch 2 as a law of the jurisdiction in question.
In particular, the text of Sch 2 was made applicable as a law of the Commonwealth to corporations and in certain other circumstances by Pt XI, s 131, of the Competition and Consumer Act. The text as so enacted is referred to as the "Australian Consumer Law" (the ACL) (see the definition in s 130 of the Commonwealth Competition and Consumer Act).
For New South Wales, that same text was made applicable as a law of New South Wales, in the circumstances referred to in s 32 of the FT Act, by Pt 3, s 28, of the FT Act and it is referred to as the "Australian Consumer Law (NSW)" (see s 28(1)(b) of the FT Act). Further, s 28(1)(c) provides that the ACL NSW "is part of" the FT Act. Consequently, references in other New South Wales legislation and in the FT Act itself to the FT Act refer not only to that Act but also to the ACL NSW, as part of that Act. Further, s 31 of the FT Act establishes that the Commonwealth Acts Interpretation Act 1901 applies as a law of New South Wales to the ACL NSW rather than the New South Wales Interpretation Act 1987.
Since the text of the ACL and the ACL NSW are the same (being the text of Sch 2 to the Competition and Consumer Act) and the proceedings have been conducted on the basis that the ACL NSW was applicable, we shall refer only to the ACL NSW when setting out or discussing the relevant provisions in what follows.
When the ACL NSW was enacted, becoming part of the FT Act, in 2011, the CC Act was not repealed or revised in any significant way.

[21]

The particular consumer guarantee which is relevant on this appeal is the guarantee of acceptable quality found in s 54 of the ACL NSW, which can be seen as replacing the implied condition as to merchantable quality under s 40Q(1) of the FT Act, in its form prior to January 2011. Section 54 provides: "54 Guarantee as to acceptable quality (1) If: (a) a person supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are of acceptable quality. (2) Goods are of acceptable quality if they are as: (a) fit for all the purposes for which goods of that kind are commonly supplied; and (b) acceptable in appearance and finish; and (c) free from defects; and (d) safe; and (e) durable; as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3). (3) The matters for the purposes of subsection (2) are: (a) the nature of the goods; and (b) the price of the goods (if relevant); and (c) any statements made about the goods on any packaging or label on the goods; and (d) any representation made about the goods by the supplier or manufacturer of the goods; and (e) any other relevant circumstances relating to the supply of the goods. (4) If: (a) goods supplied to a consumer are not of acceptable quality; and (b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer's attention before the consumer agreed to the supply; the goods are taken to be of acceptable quality. (5) If: (a) goods are displayed for sale or hire; and (b) the goods would not be of acceptable quality if they were supplied to a consumer; the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer's attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent. (6) Goods do not fail to be of acceptable quality if: (a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and (b) they are damaged by abnormal use. (7) Goods do not fail to be of acceptable quality if: (a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and (b) the examination ought reasonably to have revealed that the goods were not of acceptable quality."
In order to obtain the benefit of s 54 in respect of the supply of defective goods, a consumer is required to establish that: 1. he, she or it fell within the definition of "consumer" in s 3 of the ACL NSW; 2. a person "supplied", otherwise than by sale by auction, "goods" to the consumer in "trade or commerce", within the meaning of each of those terms in s 2(1) of the ACL NSW; 3. the defects in the goods were not specifically drawn to the consumer's attention or were not disclosed on a transparent, written notice displayed with the goods or, if the consumer examined the goods before the consumer agreed to the supply, the defects would not reasonably have been revealed; 4. the defects had the consequence that the goods were not of "acceptable quality" as explained in s 54(2) and (3) of the ACL NSW.
When these elements are compared with the elements required to be established in order to obtain the benefit of the implied condition of merchantable quality under the old consumer protection regime, it can be seen that there is a substantial degree of similarity except for the absence of a requirement for there to be a contract of supply and the difference in the concepts of "merchantable quality" and "acceptable quality".
The remaining sections of Div 1 of Pt 3-2, ss 64 - 68, deal with whether the guarantees can be excluded, whether liability for failure to comply can be limited and other miscellaneous matters.

[22]

The Remedial Provisions of the ACL NSW relating to Consumer Guarantees

If a consumer has established each of the elements required to be satisfied to obtain the benefit of a consumer guarantee, the remedies to which the consumer may be entitled are not found in Pt 3-2. Some of the consequences which flow from failure to comply with a consumer guarantee are dealt with in a different Part of the ACL NSW, namely, Pt 5-4.
At this point, it should be observed that, as a result of the operation of s 15 of the ACL NSW, a failure to comply with a consumer guarantee is not taken to constitute a contravention of the ACL NSW. Section 15 relevantly provides: "15 Contraventions of this Schedule Conduct is not taken, for the purposes of this Schedule, to contravene a provision of this Schedule merely because of the application of: … (b) a provision of Division 1 of Part 3-2 (other than section 66(2)); or …"
The significance of this observation is that the availability of the general remedial provisions of the ACL NSW found in Pt 5-2, ss 224 to 253, depends in most cases on there being a "contravention of a provision" of designated Parts of the ACL NSW. A failure to comply with a consumer guarantee does not constitute such a contravention, because of s 15. Consequently, the general remedial provisions in the ACL NSW, which are dependent upon a contravention being established, do not apply in respect of a failure to comply with a consumer guarantee. Thus, there is no right to recover damages under s 236 or other compensatory orders, under ss 237 and 243 of the ACL NSW, including orders for a refund (available under s 243(d)), for a failure to comply with a consumer guarantee.
In this regard the consumer guarantee provisions of the ACL NSW are also similar to the implied conditions and warranties under Div 4 Pt 4 of the FT Act, in its pre-2011 form. A breach of a contractual condition or warranty implied under that Division was not a contravention of the FT Act giving rise to a cause of action under the general remedial provisions formerly contained in the FT Act (see, for example, ss 68 and 72 in their pre-2011 form).
The remedial provisions of the ACL NSW applicable if there is a failure to comply with a consumer guarantee are found in Pt 5-4, ss 259 - 277.
Section 259 establishes that a consumer can, where an applicable consumer guarantee has not been complied with, require the supplier to remedy the failure, recover by action certain amounts in various circumstances or reject the goods in certain circumstances. The section is in the following terms: "259 Action against suppliers of goods (1) A consumer may take action under this section if: (a) a person (the supplier ) supplies, in trade or commerce, goods to the consumer; and (b) a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3-2 (other than sections 58 and 59(1)) is not complied with. (2) If the failure to comply with the guarantee can be remedied and is not a major failure: (a) the consumer may require the supplier to remedy the failure within a reasonable time; or (b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time--the consumer may: (i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or (ii) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection. (3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may: (a) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or (b) by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods. (4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure. (5) Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier. (6) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3). (7) The consumer may take action under this section whether or not the goods are in their original packaging.
Whether or not the failure to comply is a "major" failure is one of the most important circumstances which determine what options a consumer has under s 259. A failure to comply with a consumer guarantee may be a "major" failure for at least five different reasons, as explained in s 260(a), (b), (c), (d) and (e) as follows: 260 When a failure to comply with a guarantee is a major failure A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if: (a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or (b) the goods depart in one or more significant respects: (i) if they were supplied by description--from that description; or (ii) if they were supplied by reference to a sample or demonstration model--from that sample or demonstration model; or (c) the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (d) the goods are unfit for a disclosed purpose that was made known to: (i) the supplier of the goods; or (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (e) the goods are not of acceptable quality because they are unsafe.
Section 261 specifies various ways in which a supplier may remedy a failure in response to a requirement made by a consumer under s 259(2)(a). These relevantly include: repairing the goods; replacing the goods with goods of an identical type or refunding the money paid for the goods and an amount equal to any other consideration provided.
Section 262 establishes a number of limitations on the ability of a consumer to reject goods under s 259. None of these limitations was relevant in the present case.
The consequences of rejecting goods under s 259(2)(b)(ii) or (3)(a) are dealt with in s 263 which provides as follows: 263 Consequences of rejecting goods (1) This section applies if, under section 259, a consumer notifies a supplier of goods that the consumer rejects the goods. (2) The consumer must return the goods to the supplier unless: (a) the goods have already been returned to, or retrieved by, the supplier; or (b) the goods cannot be returned, removed or transported without significant cost to the consumer because of: (i) the nature of the failure to comply with the guarantee to which the rejection relates; or (ii) the size or height, or method of attachment, of the goods. (3) If subsection (2)(b) applies, the supplier must, within a reasonable time, collect the goods at the supplier's expense. (4) The supplier must, in accordance with an election made by the consumer: (a) refund: (i) any money paid by the consumer for the goods; and (ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods; or (b) replace the rejected goods with goods of the same type, and of similar value, if such goods are reasonably available to the supplier. (5) The supplier cannot satisfy subsection (4)(a) by permitting the consumer to acquire goods from the supplier. (6) If the property in the rejected goods had passed to the consumer before the rejection was notified, the property in those goods revests in the supplier on the notification of the rejection."
It can be noted that s 263 has some similarities to s 40N of the FT Act (in its pre-2011 form). Under s 263, if a rejection of goods is permitted by s 259, the consumer must generally return the goods to the supplier and then the consumer has an election as to whether the supplier is required to provide a refund or a replacement. Somewhat strangely and unlike s 40N, s 263 does not expressly establish the mechanism or means by which a consumer can enforce the supplier's obligation to refund the money paid for the goods and an amount equal to any other consideration provided or to replace the rejected goods, arising under s 263(4).
Sections 264 and 266 extend the protection provided by the consumer guarantees to recipients of replaced goods and to recipients of goods given by the consumer who acquired them from the supplier. Section 265 deals with termination of a contract for the supply of services that are connected with rejected goods. None of those provisions is relevant on the present appeal.
The remaining sections in Pt 5-4 deal with: 1. the remedies available where there is a failure to comply with a consumer guarantee in relation to the provision of services, ss 267 - 270; 2. actions for damages against manufacturers of goods, ss 271 - 273; 3. miscellaneous matters such as indemnification of suppliers by manufacturers, limitation on liability, whether the Part can be excluded by contract, limitations on the liability of a manufacturer to a supplier and representative actions by the regulator, ss 274 - 277.
Nowhere in these remedial provisions in Pt 5-4 is there any express conferral of jurisdiction on any court, tribunal or other body. Nor do these provisions expressly limit where any "action" might be brought.
Most significantly for present purposes, Part 5-4 provides a number of different types of remedies in the case of failure to comply with a consumer guarantee in relation to goods, some of which do not require, or necessarily require, an adjudicative process in a court or tribunal. The remedies can be classified as follows: 1. self-help remedies where the consumer can "require" the supplier to remedy the failure to comply or can "reject" the goods under s 259(2)(a), (2)(b)(ii) and (3)(a) and the remedy options open to suppliers under s 261; 2. remedies expressly able to be obtained "by action against the supplier" for recovery of: 1. "all reasonable costs incurred by the consumer in having the failure so remedied" under s 259(2)(b)(i); 2. "compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods" under s 259(3)(b); 3. "damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable …": s 259(4);and 1. remedies by way of a refund or replacement that "must" be provided by the supplier, at the election of the consumer, under s 263(4)(a) or (b) where the consumer has rejected the goods as permitted under s 259(2)(a)(b)(ii) or (3)(a).
The self-help remedies are arguably no more than a helpful statutory restatement of what a consumer can do done in any event without the need for any statutory authorisation. By themselves, they do not generally appear to confer additional rights on the consumer.
The remedies which are able to be obtained "by action against the supplier" merely permit the recovery of various forms of loss and damage consequent upon the failure to comply with the consumer guarantee. In substance, they appear to be very little different from the right to recover damages for breach of contract that a consumer had under the implied conditions and warranties regime in the FT Act prior to the introduction of the ACL NSW. It was, of course, necessary to create such statutory rights reflecting what had been the rights to claim damages for breach of contract under the old regime because the requirement for the goods to be supplied under a contract was removed in the consumer guarantee provisions of the ACL NSW. Viewed in this light, the replacement of the implied conditions and warranties by consumer guarantees did not effect a substantial change in the nature of consumers' rights apart from expanding the protection to include all supplies rather than being limited to supplies under a contract.
The situation of the refund or replacement remedies under s 263(4) is different. The subsection states that the supplier "must … refund … or … replace…" but, unlike the various provisions in s 259, s 263(4) does not establish any express cause of action or means of enforcement of this obligation. In this regard, it is different from its predecessor provision found in s 40N(3) which empowered a consumer to recover from the supplier, as a debt, the amount of the consideration paid for the goods if the contract for the supply of the goods was rescinded in accordance with that section.
Section 263(4) has been the subject of very little judicial consideration. Besanko J in the Federal Court, when dealing with an application for default judgment, was called upon to consider making an order for the payment of a sum which included the amount of a refund under s 263(4). His Honour held in Ferraro v DBN Holdings Aust Pty Ltd T/As Sports Auto Group [2015] FCA 1127 at [21] and [22]: 21. I am satisfied on the face of the statement of claim, treating the facts alleged as admitted as is appropriate in the case of an application for default judgment (Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd [2007] FCAFC 146 at [42]), that the applicant is entitled to a refund and damages under ss 263(4)(a)(i) and 259(4). I am further satisfied that each element of the cause of action has been properly pleaded, namely, supply of goods in trade or commerce, major failure to comply with the guarantee contained in s 56 of the Act, and rejection of the vehicle in accordance with s 259(3)(a). 22. I am satisfied that the applicant is entitled to judgment in the sum of $111, 900.06. I am satisfied that the vehicle cannot be returned, removed or transported to the applicant without significant cost to him because of the size of the goods within s 263(2)(b). That means that the respondent must collect the vehicle at its own expense (s 263(3)). The respondent must refund the amount by the applicant to him (s 263(4)).
On that basis, the Court indicated that it was prepared to make orders including an order that "Judgment be entered against the respondent in the sum of $111,900.06" but no orders were actually made at that time because of difficulties with other aspects of the orders sought. It appears that the Federal Court assumed that s 263(4) established a right of action on the part of a consumer to recover the amount of the refund that the supplier was required to pay under that provision. In the circumstances of an application for default judgment, however, the question of the operation of s 263(4) was not explicitly considered.
It is, of course, the case that a statutory duty, such as that found in s 263(4), may give rise to a cause of action in tort for damages if the duty is not complied with. The question whether such a cause of action arises depends on the principles set out in Sovar v Henry Lane Pty Ltd [1967] HCA 31; 116 CLR 397, where Kitto J said, at 404 - 5: "In the case of an enactment … prescribing conduct to be observed by described persons in the interests of others who, whether described or not, are indicated by the nature of a peril against which the prescribed conduct is calculated to protect them, the prima facie inference is generally considered to be that every person whose individual interests are thus protected is intended to have a personal right to the due observance of the conduct, and consequently a personal right to sue for damages if he be injured by a contravention: see Whittaker v Rozelle Wood Products Pty Ltd [(1936) 36 SR (NSW) 204; 53 WN 71]. At least this is so where the evil provided against is one of personal injury and the relationship existing between the person enjoined and the person protected is one which is recognised by the common law as giving rise to a duty on the part of the former to take precautions for the safety of the latter: O'Connor v S.P. Bray Ltd [(1937) 56 CLR 464 at 478]. But at the outset of every inquiry in this field it is important, in my opinion, to recognise … that the question whether a contravention of a statutory requirement of the kind in question here is actionable at the suit of a person injured thereby is one of statutory interpretation. The intention that such a private right shall exist is not, as some observations made in the Supreme Court in this case may be thought to suggest, conjured up by judges to give effect to their own ideas of policy and then 'imputed' to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation: see Martin v Western District of the Australasian Coal and Shale Employees' Federation Workers' Industrial Union of Australia (Mining Department) [(1934) 34 SR (NSW) 593 at 596], and cases there cited. It is not a question of the actual intention of the legislators, but of the proper inference to be perceived upon a consideration of the document in the light of all its surrounding circumstances. ..."
Although Kitto J was dealing with a statutory duty aimed at preventing personal injury to workers, these principles have been applied in other statutory contexts. For example, in The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270, the Court of Appeal considered these principles in the context of the Strata Schemes Management Act 1996 (NSW). In our view, the principles also apply in cases where the statutory duty is imposed on a supplier as part of a regime designed to protect consumers in their dealing with suppliers.
Accordingly, the question of whether contravention of the statutory duty to provide a refund or replacement, under s 263(4) of the ACL NSW, is actionable at the suit of the consumer is to be approached as one of statutory construction. In construing the statute, the task is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil or mischief against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation, see the passage quoted from Sovar above and also Byrne v Australian Airlines Ltd [1995] HCA 24; 185 CLR 410 at 460-461 and Miller v Miller [2011] HCA 9; 242 CLR 446 at [29].
The nature, scope and purpose of the ACL NSW and of the national consumer protection regime of which it is a part, being beneficial consumer protection legislation, indicate that it is likely that it was intended that consumers not be left without a means of enforcing the duty of the supplier to provide a refund or replacement, at the election of the consumer, in the circumstances set out in s 263 of the ACL NSW.
Providing such a means of enforcement serves to ensure that suppliers cannot ignore with impunity their statutory duties to supply goods of acceptable quality to consumers and to provide refunds or replacements in appropriate cases where the goods are defective. This is, at least, part of the mischief which the ACL NSW was intended to cure.
The pre-existing law, found in Div 4 of Pt 4 of the FT Act, in particular s 40N, included a right of action to recover, as a debt, a refund in circumstances not materially different from those which arise under s 263 of the ACL NSW. There does not appear to be any legitimate reason or explanation that would support the conclusion that the legislature intended to remove the right of action to recover a refund when it enacted s 263 of the ACL NSW. This is especially so since the ACL NSW can properly be seen as a somewhat more comprehensive consumer protection regime than the pre-existing provisions in the FT Act.
A contrary indication in Pt 5-4 is that the legislature expressly stated that certain amounts could be recovered "by action" by the consumer in s 259(2)(b)(i), s 259(3)(b) and s 259(4) but did not do so in respect of the obligations to provide a refund or replacement in s 263(4). This might, in other circumstances, be sufficient to establish that the obligations under s 263(4) were not intended to be able to be enforced by action by the consumer. Nonetheless, given the nature, scope and purpose of the ACL NSW, the mischief against which it is directed, the nature of the conduct prescribed and the pre-existing law, the failure expressly to provide that the obligation under s 263(4) could be enforced by action should not be taken to exclude the implication of a right on the part of the consumer to bring proceedings to enforce the supplier's duty to provide a refund or replacement.
In the view of the Appeal Panel, when the relevant considerations are weighed, the appropriate conclusion is that s 263(4) was intended to confer on a consumer at least a cause of action in tort for breach of statutory duty entitling the consumer to recover damages because of the contravention by the supplier of the duty to pay a refund or provide replacement goods.
In addition and given the remedial and beneficial nature of the ACL NSW, we are of the opinion that s 263(4) should be construed as also permitting a consumer to bring proceedings in any court or tribunal that has jurisdiction to make such orders, not just an action for tortious damages for breach of statutory duty but also, proceedings for: 1. an order for the payment of a specified amount of money being the amount of the refund payable under s 263(4)(a); and 2. an order that requires a supplier to deliver to the consumer goods of a specified description namely goods of the same type, and of similar value as the rejected goods, as described in s 263(4)(b).
The Federal Court's approach in Ferraro v DBN Holdings Aust Pty Ltd T/As Sports Auto Group [2015] FCA 1127 appears to be consistent with this.

[23]

The Nature of the Remedial Provisions of Pt 5-4

What this discussion of s 263(4) demonstrates is that the text of Pt 5-4, by itself, is not an exhaustive statement of the causes of action that might be relied upon by a consumer in a case of failure to comply with a consumer guarantee. To give effect to what appears to have been the legislative intention underlying s 263(4), resort must be had to the implication of, at least, a cause of action in tort for breach of statutory duty. As we have said above, we are of the view that a proper construction of that section also requires the implication of rights of action to obtain orders for the payment of a specified sum by way of the refund due under s 263(4)(a) and orders for the delivery of goods of a specified description by way of replacement due under s 263(4)(b).
Furthermore, there is nothing in Pt 5-4 of the ACL NSW which expressly establishes a consumer's right to seek, or prohibits a consumer from seeking, any other remedies which may be available to the consumer as a consequence of the facts that give rise to the failure to comply with a consumer guarantee to which that Part applies. There are no reasons based upon the text of the legislation or upon public policy considerations that would suggest to us that such a prohibition should be implied into the ACL NSW. The most obvious examples of other remedies that might be available arise where the defective goods are supplied under a contract. In such a case, if as a result of the goods' being defective there has been a failure to comply with a consumer guarantee and a breach of the contract, the consumer may sue not only under Pt 5-4 but also for breach of contract. In addition, a consumer may have a cause of action in negligence or misleading or deceptive conduct against a supplier if defective goods are supplied by the supplier to the consumer, depending on the circumstances.
In our view, Pts 3-2 and 5-4 of the ACL NSW should be viewed as extending the protection previously provided by the implied contractual conditions and warranties to supplies that did not involve a contract and as providing remedies, similar to those remedies a consumer had under the previous consumer protection regime but regardless of whether the supply was under a contract or not. Those Parts were not intended to create an exclusive regime that would preclude a consumer from obtaining remedies, other than those set out in Pt 5-4, which might be available in particular cases.
In all these circumstances, it may be concluded that the text of Pt 5-4 does not establish a comprehensive or exhaustive remedial scheme nor is it even a complete statement of the causes of action which may arise when there has been a failure to comply with a consumer guarantee.
It would also not be appropriate to treat the ACL NSW, or a Part of it such as Pt 5-4, as a "code" or a "codifying" statute in the sense described in Statutory Interpretation in Australia (Pearce DC and Geddes RS, 8th Ed, Lexis Nexis, Sydney, 2014) at 1.25 as follows: "A consolidating Act gathers together and re-enacts all legislation on a particular topic: a codifying Act does that but also incorporates all the relevant common law on the topic into the Act. A code thus becomes a complete statement of all the law on the particular issue with which it deals."
Nor does there appear to be any other sense in which it would be appropriate to describe the ACL NSW or any Part of it as a "code" or "approach[ing] a code".

[24]

Jurisdiction to Determine Claims under Pt 5-4

Finally, it can be observed that Pt 5-4 of the ACL NSW does not contain any provision conferring jurisdiction on any court or tribunal in respect of the causes of action arising under it.
The conferral of jurisdiction to hear and determine claims for remedies under Pt 5-4 must be found elsewhere. In this regard, the consumer guarantee and applicable remedy provisions of the ACL NSW can also be seen to be similar to the implied conditions and warranties provisions of the FT Act which they replaced, the former Div 4 of Pt 4, ss 40L - 40S. As has been noted above, that Part did not include any conferral of jurisdiction on any court, tribunal or other body to determine claims for relief based upon s 40N, which created a statutory right to a refund similar to that established by s 263(4) of the ACL NSW.
In the case of the Tribunal's predecessor, the CTTT, prior to January 2011, jurisdiction to hear and determine claims by consumers in relation to the supply of goods and services had been conferred by the CC Act. When the ACL NSW was enacted, the only amendment to the CC Act was that set out in item 3.4 in Sch 3 to the Fair Trading Amendment (Australian Consumer Law) Act 2010 (NSW) and it was of no significance for the CTTT's general jurisdiction to hear "consumer claims". The objects and long title of the CC Act remained unchanged in January 2011.
Accordingly, it can be concluded that the Parliament intended that consumers should still be able to obtain the remedies provided by the CC Act in cases concerning the supply of goods and services notwithstanding that the former provisions of Div 4 of Pt 4 of the FT Act had been replaced by Pt 3-2 and Pt 5-4 of the ACL NSW. Similarly, it is likely that the Parliament intended that the simplified dispute resolution processes of the CTTT, available prior to 2011 under the CC Act for parties involved in consumer disputes, should continue to be available even with the introduction of the ACL NSW. On 1 January 2014, the CTTT was abolished and its jurisdiction was taken over by NCAT.
Furthermore, even if there were some doubt as to whether the CC Act was to continue to permit the CTTT, and subsequently NCAT, to provide remedies to consumers concerning the supply of goods and services after the introduction of the ACL NSW, that doubt was resolved when four years later, the CC Act was effectively re-enacted in full as Pt 6A of the FT Act, in October 2015. This re-enactment indicates an intention on the part of the legislature that the remedies and simplified procedures of the Tribunal in respect of claims concerning the supply to consumer of goods and services should continue to be available in the Tribunal even when the relevant consumer protection provisions are found in Pt 3-2 and Pt 5-4 of the ACL NSW.
Notwithstanding this, the Tribunal below reached the conclusion that the ACL NSW and the CC Act were inconsistent and that it was necessary to read the CC Act down so as not to apply to consumer claims based upon Pt 5-4 of the ACL NSW.

[26]

The CC Act and Pt 6A of the FT Act

Prior to 1 October 2015, jurisdiction to hear and determine "consumer claims" was conferred on the CTTT, until 31 December 2013, and thereafter, NCAT, by the CC Act. Since 1 October 2015, jurisdiction to hear and determine "consumer claims" has been conferred on NCAT by Pt 6A of the FT Act. As explained above, in the present case cl 29(2) of Sch 5 of the FT Act applies so that the claims the subject of this appeal are to be dealt with under the CC Act and not Pt 6A of the FT Act.
Whilst it is important to identify correctly the Act which confers jurisdiction on the Tribunal, there does not appear to be any material difference between the jurisdiction conferred by the CC Act and that conferred by Pt 6A of the FT Act because Pt 6A is in substance a re-enactment of the CC Act. In some instances, the operative provisions of the CC Act have been re-enacted in Pt 6A without any alteration in wording, for example ss 6, 7(2), (3) and (4) and 10 of the CC Act and ss 79I, 79K(1) and (2), 79L(1) and 79R of the FT Act, respectively. Where there is some change in the wording, this is often merely the necessary consequence of repealing a stand-alone Act and incorporating its provisions into an existing Act. In respect of the other changes, the Second Reading Speech for the Fair Trading Legislation (Repeal and Amendment) Bill 2015, by which Pt 6A was introduced, indicates that the changes were not intended to change the jurisdictional coverage of the Tribunal but rather were intended "to update the provisions consistently with contemporary drafting conventions". The Minister said the following in his Second Reading speech (New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 June 2015 at 1571): "Consumer Claims Act 1998: This bill repeals the Consumer Claims Act and transfers the essential provisions of that Act to the Fair Trading Act 1987 in order to preserve the existing jurisdictional coverage of the NSW Civil and Administrative Tribunal for consumer claims. The consumer claims jurisdiction is a vital limb for a consumer protection regime. It gives consumers access to low-cost dispute resolution where a trader has failed to supply a goods or service as promised. In Victoria, the equivalent provisions for Tribunal jurisdiction are included in the primary consumer protection legislation of Victoria, the Australian Consumer Law and Fair Trading Act 2012. It is considered that this is an excellent model for NSW. For the purposes of the jurisdiction, a consumer claim is defined as · a claim by a consumer for the payment of a specified sum of money, or · a claim by a consumer for the supply of specified services, or · a claim by a consumer for relief from payment of a specified sum of money, or · a claim by a consumer for the delivery, return or replacement of specified goods or goods of a specified description, or a claim by a consumer for a combination of two or more of the remedies that I have referred to, that arises from a supply of goods or services by a supplier to the consumer, whether under a contract or not, or · that arises under a contract that is collateral to a contract for the supply of goods or services. This proposal also includes a minor modification that is made to the term 'banker' and references to administrative agencies and persons as a consequence of the merger with the Fair Trading Act and the use of similar words in that Act. However, those changes have been kept to the minimum necessary in order to preserve the existing jurisdiction to hear a consumer claim and to update the provisions consistently with contemporary drafting conventions. Where the repealed Act provided a procedural order power which the Tribunal has under the Civil and Administrative Act 2013, it is not duplicated. An example of such a procedural power that will now reside in the Tribunal's Act is the power to make orders with conditions. This is an uncontroversial proposal as it consolidates the low-cost dispute resolution aspect of our consumer protection regime into a single overarching Act - the Fair Trading Act 1987."
In these circumstances, the reasoning of the Appeal Panel in this matter applies equally to proceedings under the CC Act and to those under the corresponding provisions now found in Pt 6A of the FT Act.

[28]

Conferral of Jurisdiction by the CC Act

Under s 6 of the CC Act, "[a]ny consumer may apply to the Tribunal for determination of a consumer claim". Section 7 contained the express conferral of jurisdiction in s 7(1) in the relevantly following terms: "[t]he Tribunal has jurisdiction to hear and determine any consumer claim brought before it under this Part … except as otherwise provided by this section".
The exceptions to, or limitations on, that jurisdiction set out in s 7(2), (4) and (5) can be summarised as follows: 1. The Tribunal only had jurisdiction to hear and determine a consumer claim if the goods or services to which the claim relates were supplied in New South Wales or had another relevant connection with New South Wales - s 7(2)(a), (b) and (c); 2. The Tribunal did not have jurisdiction in respect of a consumer claim if the cause of action giving rise to the claim first accrued more than 3 years before the date when the claim is lodged or if the goods or services were supplied more than 10 years before the date on which the claim is lodged - s 7(4)(a) and (b); 3. The Tribunal did not have jurisdiction to deal with a matter arising in relation to the fairness or reasonableness of the costs charged by a barrister or solicitor if the costs could be the subject of a costs assessment under the relevant costs assessment legislation - s 7(5).
It was not in dispute that none of these limitations applied in the present case.
The remaining subsections of s 7, subss (3) and (4A) preserved the jurisdiction of the Tribunal in certain cases and the operation of limitation periods under the Limitation Act 1969 (NSW). They are not relevant to the present case.
The additional limitations on jurisdiction in s 14(1), (2) and (2A) had the effect that the Tribunal could not make orders with a value in excess of $40,000. Section 14(3) provided, however, that these limitations did not apply "in relation to a consumer claim arising from the supply of a new motor vehicle that is used substantially for private purposes within the meaning of the Motor Vehicles Taxation Act 1988". As a result of the operation of s 14(3), the limitations in s 14(1), (2) and (2A) were not applicable in the present case.
The right to make a claim under s 6 and the jurisdiction conferred by s 7(1) relate only to a "consumer claim". A "consumer claim", as defined in s 3A(1), had essentially three elements: 1. It must be a claim by a "consumer" (as defined in s 3(1), which definition was not the same as the definition in either the FT Act or the ACL NSW) - s 3A(1)(a) to (e); 2. It must be a claim for one or more of the types of orders specified in s 3A(1)(a) - (d) being: the payment of a specified sum of money; the supply of specified services; relief from payment of a specified sum of money; and the delivery, return or replacement of specified goods; and 3. the claim must arise: 1. from the supply of goods or services by a "supplier" to the consumer, whether under a contract or not; or 2. under a contract collateral to a contract for the supply of goods or services.
The third requirement can be seen as anticipating the introduction of the ACL NSW in that the claims that fell within the definition of "consumer claim" under the CC Act extended beyond those where the supply was under a contract.
It should be noted that in the CC Act a "consumer claim" was defined by reference to the type of orders claimed and not by reference to the cause of action relied upon. Thus, on the ordinary meaning of s 3A(1), any claim by a consumer for "the payment of a specified sum of money" would fall within s 3A(1)(a) of the definition of "consumer claim" regardless of whether it was based upon a cause of action in contract or tort, a statutory cause of action or some other right giving rise to a legal entitlement to the payment of money. Similarly, claims for other types of orders could fall within s 3A(1)(b), (c) or (d) no matter what particular cause of action they were based upon.
At this point, one matter should be clarified. Because of the use of the expression "a claim … for the payment of a specified sum of money" in s 3A(1)(a), it might be argued that only a claim for liquidated damages or a debt, and not a claim for unliquidated damages, would constitute such a claim. This question was considered by the Court of Appeal in W D & H O Wills (Australia) Limited v The Consumer Claims Tribunal of New South Wales [1998] NSWCA 293 in relation to the same wording in the context of the conferral of jurisdiction to hear and determine "consumer claims" on the Consumer Claims Tribunal, under the Consumer Claims Tribunals Act 1987 (NSW). At pp 5 - 6 of the decision, it was said: "Does the term "specified sum" exclude claims for unliquidated amounts of a non-pecuniary nature? The purpose of the Act is to allow consumers to make claims in the Tribunal in respect of defective goods and services. It is self-evident, in my opinion, that some claims will inevitably include the assessment of unliquidated damages. For example, when repair work is carried out on defective goods. The text of the statute also lends assistance. Section 30(1) [equivalent to s 8(1) of the CC Act] empowers the Tribunal to make certain orders. They include an order that a respondent pay "a specified amount of money", "perform specified work", deliver goods of "a specified description" etc. "Specified" is used in a variety of contexts and is patently not intended to be confined solely to liquidated claims as that meaning would only have relevance to some of the subparagraphs of s 30(1). The Act does not expressly require that a consumer claim be for liquidated damages and not unliquidated damages. It has to be for the payment of a specified sum of money. The requirement is satisfied if a sum of money is specified in the claim and is within the jurisdictional limit of the Tribunal. I can see no reason in public policy to confine the phrase "specified sum" to liquidated claims and exclude a claim for general damages."
Applying this reasoning to the corresponding provisions of the CC Act, s 3A(1)(a) is to be construed so that a claim for the payment of money, provided the sum was specified in the application, would fall within s 3(1)(a) even if it was a claim for unliquidated damages for breach of contract, breach of statutory duty or negligence or a claim under s 259(2)(b)(i), s 259(3)(b), s 259(4) or s 263(4)(a) of the ACL NSW.

[29]

Orders Available under the CC Act

Where the Tribunal had jurisdiction to hear and determine a "consumer claim" under s 7 of the CC Act, the Tribunal was empowered to make various types of orders specified in s 8. These were: 1. orders in favour of a claimant, of the types set out in s 8(1)(a) to (h) as follows: "(a) an order that requires a respondent to pay to the claimant a specified amount of money, (b) an order that requires a respondent to perform specified work in order to rectify a defect in goods or services to which the claim relates, (c) an order that requires a respondent to supply to the claimant specified services other than work, (d) in the case of a claim for relief from payment of money, an order declaring that a specified amount of money is not due or owing by the claimant to a respondent, (e) an order that requires a respondent to deliver to the claimant goods of a specified description, (f) an order that requires a respondent to return to the claimant specified goods which are in the possession or under the control of that respondent, whether the property in the goods has passed or not, (g) an order that requires a respondent to replace goods to which the claim relates, (h) an order that requires: (i) a respondent to refund all or part of the purchase price of specified goods that are in the possession or under the control of the claimant, and (ii) the claimant to return all or part of those goods to the respondent, whether the property in the goods has passed or not." 1. orders in favour of a respondent to a claim of the types set out in s 8(2)(a) to (c) as follows: "(a) an order dismissing the claim or a part of the claim, (b) an order that requires the claimant to pay to the respondent a specified amount of money, (c) an order that requires the claimant to return to the respondent specified goods which are in the possession or under the control of the claimant, whether the property in the goods has passed or not." 1. if there was more than one respondent, orders as between the various respondents of the types set out in s 8(2A)(a) to (d) as follows: "(a) an order that requires a respondent to pay to another respondent a specified amount of money, (b) an order that requires a respondent to supply to another respondent specified services other than work, (c) an order that requires a respondent to deliver to another respondent goods of a specified description, (d) an order that requires a respondent (the first respondent) to return to another respondent specified goods that are in the possession or under the control of the first respondent, whether the property in the goods has passed or not."
Under ss 9, 10 and 11 of the CC Act, conditional orders, interim and ancillary orders and orders suspending the operation of orders, respectively, could also be made by the Tribunal. Under s 12, the joint liability provisions of the Civil Procedure Act 2005 (NSW) applied to the Tribunal's orders.
In s 13(1) of the CC Act, there was a further provision which required the Tribunal, when making an order or orders under the CC Act, to "make such orders as, in its opinion, will be fair and equitable to all the parties to the claim." Section 13(2) provided that there were a number of factors, set out in pars (a) to (g), which were "relevant, so far as they [were] material to the particular circumstances of the case" when the Tribunal was considering whether or not to make any order in relation to a consumer claim.
It can be observed here that the factors in s 13(2)(a) to (g) are not materially different from the factors listed in s 9(2) of the Contracts Review Act 1980 (NSW) to which a Court shall have regard when determining whether a contract is unjust for the purposes of that Act. In many cases, the wording of s 9(2) of the Contracts Review Act is reproduced exactly in s 13(2) of the CC Act. This is consistent with the conferral on the Tribunal of the same jurisdiction as the Supreme Court has, under the Contract Review Act, in relation to contracts for certain building work and retirement village contracts, under s 89D of the Home Building Act 1989 (NSW) and s 123 of the Retirement Villages Act 1999 (NSW) respectively (see also the definition of "Court" pars (d) and (e) in s 4(1) of the Contracts Review Act). Nor are the s 13(2) considerations vastly different from the considerations set out in s 22(1) of the ACL NSW, which are relevant to determining whether a person has engaged, in trade or commence in connection with the supply or possible supply of goods or services to a person (other than a listed public company), in conduct which is in all the circumstances unconscionable in contravention of s 21 of the ACL NSW.
If the terms of s 13(1) were thought to require the Tribunal to apply its own notions of fairness and equity when making orders rather than making orders in accordance with the applicable law, that would be an error. The Court of Appeal considered the operation of s 13 in O'Farrell v Allianz Australia Insurance Ltd [2015] NSWCA 48 and rejected, at [16], the notion that s 13 of the CC Act required the Tribunal to act otherwise than in accordance with law.
Some additional assistance in understanding how the CC Act, and in particular s 13, operated can be gained from the decision of the Court of Appeal in State Rail Authority v Consumer Claims Tribunal (1988) 14 NSWLR 473 (the State Rail Authority Case). In that case, the Court considered the operation of the Consumer Claims Tribunals Act 1987 (NSW), and in particular s 23(1) and (2) of that Act, which were effectively re-enacted as ss 8 and 13 of the CC Act in 1998.
The Parliamentary intention to continue the substance of s 23(1) and (2) in ss 8 and 13 of the CC Act can be seen from the terms of those sections and from the Second Reading speech in respect of the Consumer Claims Bill 1998. In that speech, the Minister noted (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 20 October 1998 at 8626) that: "The Consumer Claims Bill preserves the remedies available to consumers in relation to disputes arising from the supply of goods or services currently established by the Consumer Claims Tribunal Act 1987 and confers jurisdiction to deal with these disputes upon the [then] Fair Trading Tribunal."
In the State Rail Authority Case, the remedial provisions of the legislation that was the predecessor of the CC Act were explained by Hope JA (with whom Samuels and Clarke JJA agreed) as follows, at 478 - 9: "the [Consumer Claims T]ribunal exercises judicial powers. It has to resolve whether the claimant has made out a right to relief according to the general law, and if he has, then the court [sic] has to decide, in some cases, what order it considers is fair and equitable to make. In other cases (including where the claim is to be dismissed) its orders must be in accordance with the general law. Its discretion would seem to be limited to deciding, in appropriate cases, whether to order the payment of a sum of money to a claimant or to order work to be performed or steps taken to rectify a defect in goods or services, or to make orders combining all of these matters. This does not seem to be different in kind from the type of jurisdiction that many "ordinary" courts have to decide, as a matter of discretion, what form of alternative possible forms of relief they should grant. …Whether a relevant right exists must be determined by the tribunal in accordance with the general law; which of the orders which the Act authorises it to make it decides to make is, in some cases, to be determined in accordance with its opinion as to what is fair and equitable. But I do not think that this discretion in any way affects the nature of its decision as to the existence or absence of the claimant's right. The claimant does not simply seek relief: he seeks relief upon the basis of a right legally arising out of a contract. … … the tribunal must resolve issues which are in dispute, and must keep a record of those issues as well as a record of its decision upon them. Despite the power given to the tribunal to decide to make orders which are fair and equitable, including orders other than for the payment of money (although in due course the claimant may be forced back to such an order), the tribunal cannot fix the amounts of the payments or determine the nature of the other acts to be performed otherwise than on the basis of the evidence before it and the contractual rights and obligations of the parties; the tribunal does not exercise "palm-tree justice". It is a court exercising judicial power, with the duties upon it and the consequences to the parties that such a power and the exercise of it involves. It is a jurisdiction which can, within its prescribed limits, be regarded as a jurisdiction of a court to resolve issues arising under contracts for the supply of goods or services.
It is important to note that the Court of Appeal's decision, dating from 1988, uses the expressions "arising out of a contract" and "arising under contracts for the supply of goods or services" and refers to "contractual rights and obligations" because the definition of "consumer claim" at that time in s 4(1) of the Consumer Claims Tribunals Act included only "a claim or … [a claim based on] an obligation arising out of a contract for the supply of goods or the provision of services [etc]…". The definition of "consumer claim" in s 3A(1) of the CC Act, as has been noted above, was broader and included a claim "that arises from a supply of goods or services by a supplier to the consumer, whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of goods or services". As a result, the analysis of the Court of Appeal remains applicable but the claims which fell within the jurisdiction of the Tribunal under the CC Act were more extensive than those under the Consumer Claims Tribunals Act and were not limited to contractual claims.
The decisions in O'Farrell and State Rail Authority establish that s 13(1) does not have the effect of requiring or allowing the Tribunal to make orders otherwise than in accordance with law. What s 13(1) did was to provide an express statutory indication that the Tribunal, when exercising any discretion or making any evaluative judgment in determining what order should be made, should take into account what was fair and equitable having regard to the circumstances of all the parties.
The requirement in s 13(1) can also be seen as having a further role. According to s 2A(a) of the CC Act, one of the objects of the Act was "to provide remedies to consumers concerning the supply of goods and services". Those remedies were the types of orders listed in s 8, not the common law and other statutory remedies which are confined by relevant common law principles or statutory provisions. In these circumstances, the requirement that orders be fair and equitable to all parties obliged and allowed the Tribunal to take into account the circumstances which might, if similar remedies were given under common law or another statute, have restricted or modified the granting of the remedy. In this way, the remedies created by the CC Act could reflect, in a simple, appropriate and flexible way, the remedies that might be granted by a Court if it were to be exercising jurisdiction in respect of similar claims by consumers.
In any event, it would be a mistake to conclude that s 13(1) meant that a consumer making a claim under the CC Act had no right to any particular remedy or that the Tribunal's order making power in respect of consumer claims was inconsistent with that of a Court making orders in respect of consumer claims, whether arising under the FT Act, in its pre-2011 form, or the ACL NSW.

[30]

Claims and Orders under the CC Act and the ACL NSW

The Appeal Panel now turns to consider whether the claims that can be brought in, and orders that may be made by, the Tribunal under the CC Act (or Pt 6A of the FT Act) are contradictory to the remedies that can be obtained under Pt 5-4 of the ACL NSW.
As has been noted above, the CC Act conferred jurisdiction on the Tribunal by reference to the general type of claim made by the consumer and not by reference to the nature or source of the cause of action giving rise to the claim. In order to be a "consumer claim" in relation which the Tribunal could exercise jurisdiction, s 3A(1) of the CC Act simply required that there be: "(a) a claim by a consumer for the payment of a specified sum of money, or (b) a claim by a consumer for the supply of specified services, or (c) a claim by a consumer for relief from payment of a specified sum of money, or (d) a claim by a consumer for the delivery, return or replacement of specified goods or goods of a specified description, or (e) a claim by a consumer for a combination of two or more of the remedies referred to in paragraphs (a)-(d), that arises from a supply of goods or services by a supplier to the consumer, whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of goods or services."
The absence of any reference in s 3A or ss 6 or 7 of the CC Act to particular common law or statutory causes of action and the defining of a "consumer claim" simply by reference to the type of order claimed by the consumer is a telling indication that the Parliament intended the Tribunal to have jurisdiction in relation to any causes of action, whether arising at common law or under statute, that would support a claim by a consumer falling within one of the descriptions in s 3A(1)(a), (b), (c) or (d) or a combination of such claims.
Understood in this way, a claim for a specified sum of money by a consumer based on the right to a refund under s 263(4) of the ACL NSW would be a claim falling within s 3A(1)(a) of the CC Act and, thus, if the other requirements for a "consumer claim" were satisfied and jurisdiction was not excluded under s 7(2), (4) or (5) or s 14(1), (2) or (2A) of the CC Act, the claim would be one in relation to which the Tribunal had jurisdiction. Similarly, a claim, for example, for a specified sum of money being: all reasonable costs incurred by the consumer in having the failure remedied which is recoverable under s 259(2)(b)(i) of the ACL NSW; the amount of any reduction in the value of the goods below the price paid by the consumer recoverable under s 259(3)(b); or, the amount of loss and damage recoverable under s 259(4), would also be "consumer claims" in relation to which the Tribunal had jurisdiction, if other relevant requirements were satisfied.
There is nothing in the definition of "consumer claim" in the CC Act or Pt 6A of the FT Act or in the existence of the right to bring proceedings based on such a claim in the Tribunal which is contradictory to any provision of Pt 3-2 or Pt 5-4 of the ACL NSW. In particular, there does not appear to be any legitimate reason to conclude that, because s 259(2)(b)(i), (3)(b) or (4) provide that certain amounts may be recovered "by action", this was in some way inconsistent with a claim for such amounts being made under s 6 of the CC Act. Neither the CC Act nor the ACL NSW contain any provisions which expressly or impliedly indicate that they were intended to create mutually exclusive legislative regimes for the enforcement of consumer rights. Indeed, the long title and the objects of the CC Act suggest an intention to create a simplified regime for consumers making claims based upon the consumer protection laws, as they exist from time to time, concerning the supply of goods and services. Thus, it would be erroneous to conclude that it was contrary to the legislative purpose of both pieces of legislation to permit consumer claims under the CC Act to be brought in the Tribunal based on the various "actions" referred to in s 259 of the ACL NSW.
If the Tribunal had jurisdiction under the CC Act and the consumer established on the evidence before the Tribunal all the elements of the cause of action upon which the consumer relied, the Tribunal was empowered to make the types of substantive orders set out in s 8(1) of the CC Act (relevant parts of which have been quoted above) but in doing so it was required, under s 13(1), to make such orders as, in its opinion, would be fair and equitable to all parties to the claim. It has already been noted that, properly understood, s 13(1) does not require the Tribunal to act otherwise than in accordance with law.
The types of orders in s 8(1), like the claims referred to in s 3A(1), were not specified by reference to types of causes of action or types of remedies, such as "damages", "specific delivery", "injunction" or "specific performance". The orders that could be made under s 8(1) were specified by reference to the terms of the actual order required to grant a particular remedy in respect of a particular cause of action that has been established.
Thus, if a consumer established an entitlement to damages for breach of contract or to recover the amount specified in s 259(2)(b)(i), (3)(b) or (4), the order of the Tribunal would not be: "The respondent is to pay to the claimant damages" or "the respondent is to pay to the claimant the amount specified in s 259(2)(b)(i), (3)(b) or (4) of the ACL NSW" rather it would be: "The respondent is to pay to the claimant $X", that is, an order to pay a specified amount of money, falling within s 8(1)(a) of the CC Act. This is, in substance, no different from what a Court would do in similar circumstances.
Similarly, if a consumer established an entitlement to a refund or a replacement under s 263(4) of the ACL NSW and elected to take the refund and the supplier did not pay, the consumer would have a claim for the payment of a specified sum of money. That claim would, on the ordinary meaning of the text of the CC Act, fall within s 3A(1)(a) of that Act. The Tribunal could, in the circumstances, make an order under s 8(1)(a) of the CC Act that required the supplier to pay to the consumer a specified amount of money, namely the amount of the refund due under s 263(4)(a). In doing so, it would have regard to whether it was just and equitable to make such an order, as a result of the operation of s 13(1), but not so as to make an order otherwise than in accordance with law. Alternatively, an order might be made under s 8(1)(h) if the goods were in the possession or under the control of the claimant and it was otherwise appropriate to do so.
The fact that different wording is used to describe the refund in s 8(1)(h) from the wording in s 263(4)(a) does not establish a contradiction between the CC Act and the relevant provisions of the ACL NSW for a number of reasons. First, "the purchase price of specified goods" can be construed as referring to the same amount as is referred to as "any money paid by the consumer for the goods" together with "an amount that is equal to the value of any other consideration provided by the consumer for the goods". The latter two expressions just take into account explicitly the fact that in some cases the purchase price of goods may include monetary and non-monetary consideration. It would not be straining the words of the sections in question to construe them as both referring to the same concept and, in any particular case, the same amount.
Secondly, even if the words in s 8(1)(h) could not in the circumstances of a particular case be construed as referring to the same amount as the words in s 263(4)(a)(i) and (ii), the Tribunal can, as already explained, grant relief in respect of a refund sought under s 263(4)(a) of the ACL NSW by making an order under s 8(1)(a) of the CC Act for the payment of a specified amount of money equal to the entitlement under that s 263(4)(a). Any potential contrariety between the two statutory provisions would not arise or could be avoided.
Again, if instead of a refund under s 263(4)(a) of the ACL NSW, the consumer sought the replacement of the rejected goods under s 263(4)(b) and all the elements of the cause of action under par (b) were established, the Tribunal could make an order requiring the supplier "to deliver to the [consumer] goods of a specified description" under s 8(1)(e) or an order that the supplier "replace goods to which the claim relates" under s 8(1)(g).
In all the circumstances, it appears to the Appeal Panel that the provisions of the Pt 5-4 of the ACL NSW and of the CC Act could operate harmoniously together. As illustrated above, all of the causes of action and potential causes of action found in ss 259 and 263 of the ACL NSW could, if established, be vindicated by the Tribunal's making of appropriate orders under various paragraphs of s 8(1) of the CC Act. Indeed, the types of orders available under s 8(1) appear to be particularly appropriate to give effect to the causes of action created by Pt 5-4 of the ACL NSW.
In the Appeal Panel's view, far from the CC Act contradicting the consumer guarantee remedial provisions of the ACL NSW, the simple regime, established by the CC Act, and its successor Pt 6A of the FT Act, for having consumer claims determined justly, quickly and cheaply in the Tribunal is particularly suitable for the enforcement of the consumer guarantees arising under the ACL NSW. It is so suitable not only because the types of orders that the Tribunal can make but also because of the Tribunal's practice and procedure and because consumer claims are, in most cases, ones which involve smaller sums of money, usually under $40,000 (given the jurisdictional limit of the Tribunal and the definition of supply to a consumer in the ACL NSW). In the Tribunal, consumers can bring their lower value claims and obtain suitable remedies in a forum in which legal representation is generally not required, which is procedurally less complex than a Court, which is not bound by the technical rules of evidence, in which each party is generally expected to bear its own costs and in which the cost of instituting and prosecuting proceedings is considerably less than would be incurred in a Court. Notwithstanding all of this, the Tribunal is required to act independently and publicly, to accord procedural fairness, to make its decisions rationally based on the evidence before it and in accordance with law. It must give reasons for its decisions and these can be challenged on appeal, as of right on a question of law and by leave on other grounds.
There appear to be no reasons of public policy or consumer protection why the legislature would seek to remove from the Tribunal the jurisdiction to hear and determine consumer claims that arise from a failure to comply with a consumer guarantee and require consumers to prosecute such claims in a Court. Indeed, the objects of the CC Act, and Pt 6A of the FT Act, suggest forcefully that the Tribunal was specifically intended to have jurisdiction to hear and determine those types of claims.

[31]

Conclusion on the Construction of the ACL NSW and the CC Act (now Pt 6A of the FT Act)

To construe the CC Act, or Pt 6A of the FT Act, as contradicting Pt 5-4 of the ACL NSW so that either the CC Act (now Pt 6A) has to be read down so as to exclude consumer claims based on failure to comply with the consumer guarantees arising under the ACL NSW, or the CC Act is taken to have been impliedly repealed by the enactment of the ACL NSW, is to be avoided if another construction is available. Indeed, there is a strong presumption that they can both operate in harmony, together.
In our view, it is not only possible to give Pt 5-4 of the ACL NSW and the CC Act (now Pt 6A of the FT Act) a construction that allows both to operate harmoniously, this is also the construction that flows directly from natural meaning of the text of both pieces of legislation, as we have explained in some detail above.
For the reasons we have given above, we do not accept that the remedies established by Pt 5-4 of the ACL NSW are more detailed and specific than those that flowed from Div 4 of Pt 4 of the FT Act (in its pre-2011 form) and nor is the comprehensiveness of the scheme in Pt 5-4 such that it approaches a code, as the Tribunal below concluded. Similarly, on its proper construction, the remedial scheme established by Part 5-4 is not exhaustive and its remedies are not the only remedies that may apply in situations where there has been a failure to comply with a consumer guarantee.
As the Court of Appeal's decisions in O'Farrell v Allianz Australia Insurance Ltd [2015] NSWCA 48 and State Rail Authority v Consumer Claims Tribunal (1988) 14 NSWLR 473, referred to above, indicate, s 13(1) of the CC Act does not have the consequence that the orders made under s 8 of the CC Act do not or cannot give effect to the types of relief available under Pt 5-4. There is no contrariety in this regard.
Even if it is accepted that provisions such as s 259 of the ACL NSW confer both a right to bring proceedings "by action" as well as a remedy, there is no reason to conclude that this is inconsistent with a "consumer claim" under the CC Act being made in the Tribunal in respect of that right and an order being made by the Tribunal which reflects the remedy created by s 259.
The CC Act, and now Pt 6A of the FT Act, do not, of themselves, create any causes of action. They are predicated upon the existence of causes of action that arise independently from them. The cause of action may be founded upon contract, tort, debt, statute or any other sufficient basis in law. All that is required is that the cause of action is available under New South Wales law to the consumer at the relevant time and provides a legitimate legal basis for the consumer to make a claim of a type listed in s 3A(1)(a) to (e) of the CC Act, or the corresponding definition in Pt 6A, against the supplier. If there is such a claim and the other requirements in relation to jurisdiction are met, the Tribunal then has power to make orders of the types listed in s 8 (now ss 79N, 79O and 79P of the FT Act), having regard to the legal entitlements of the parties under the causes of action upon which the claims are based.
Given the width of the types of orders available under s 8 of the CC Act, it appears that the legislature intended and, since the enactment of ss 79N, 79O and 79P of the FT Act, intends that the orders that can be made by the Tribunal in respect of a consumer claim should be flexible so as to be fair and equitable as between the parties at the same time as being in accordance with law. For example, a consumer who was entitled to damages for breach of contract might, in an appropriate case, obtain an order that the supplier provide a replacement for the defective services or perform work, even where the usual remedy available at common law would be damages. Especially since the re-enactment of these provisions in October 2015, in our view the proper construction of the ACL NSW and the CC Act, and now Pt 6A of the FT Act, is that a similar approach can be taken where the consumer claim is based on a failure to comply with a consumer guarantee. In other words, whilst the ACL NSW establishes the foundational causes of action to claim certain relief, the CC Act, and Pt 6A, provide not only a means of obtaining such relief by the making of corresponding orders under s 8(1) or s 79N, they also allow the Tribunal to supplement those forms of relief in appropriate cases by making additional types of orders, as set out in s 8(1) or s 79N. This approach is consistent with, and gives proper recognition and effect to, the remedial and beneficial nature and purpose of both statutes. It also promotes the objects of Pt 6A of the FT Act set out in s 79B namely: "to provide for remedies for, and the straightforward resolution of, disputes concerning the supply of goods and services to consumers" as it would the similar objects of the CC Act set out in s 2A (quoted above).
In our view, such a power to make orders under the CC Act, or Pt 6A of the FT Act, supplementing the types of orders that might be made to give effect to the remedies created by Pt 5-4 the ACL NSW, does not create a disharmony between the ACL NSW and those other Acts. Where one Act supplements the remedies available under another Act in certain circumstances, the two pieces of legislation can operate together entirely harmoniously.
To construe the CC Act and the ACL NSW in way in which the Tribunal below did so as to conclude that the Tribunal did not have jurisdiction to grant a remedy in a case of a failure to comply with a consumer guarantee arising under the ACL NSW (and, taken to its logical conclusion, any other provision of the ACL NSW) appears to be contrary to the approach endorsed by Kirby P in Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 722 as follows: "Upon the hypothesis (which is admittedly often sorely tried) that there is a rational integration of the legislation of the one Parliament, it is proper for courts to endeavour to so construe inter related statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation. This is the approach which I take to the task of statutory interpretation in hand."

[33]

Conclusion on Principal Question 1 - The Tribunal's Jurisdiction to Grant a Remedy for Failure to Comply with a Consumer Guarantee

For all of these reasons we do not think that the presumption that the legislature did not intend to contradict itself has been displaced. On their proper constructions both the ACL NSW and the CC Act (or Pt 6A of the FT Act) can operate together sensibly, efficiently and justly. It is not necessary or appropriate in order to achieve a harmonious construction of both pieces of legislation to read down "consumer claim" in the CC Act so that it does not to refer to claims in respect of a failure to comply with a consumer guarantee under the ACL NSW. When the Tribunal below concluded that it was necessary and appropriate to do so it fell into error.
The correct position is that the Tribunal has jurisdiction to grant relief, under the CC Act in respect of claims lodged prior to 1 October 2015 and under Pt 6A of the FT Act in respect of claims lodged after that date, where the claim is a "consumer claim" based on a failure to comply with a consumer guarantee arising under the ACL NSW, provided the jurisdictional requirements of the CC Act or the FT Act, as applicable, are otherwise satisfied.
In the present case, it was not in dispute that Mr Lam was a "consumer" within the meaning of the CC Act, being a natural person and thus falling with par (a) of the definition of consumer in s 3(1). In his application, he claimed relief by way of the payment of a specified sum of money, namely $42,701, which is a type of relief falling within s 3(1)(a). It was not in dispute that Steve Jarvin Motors was a "supplier" within the definition in s 3(1) of the CC Act, being a person who, in the course of carrying on a business, supplies goods or services. Mr Lam's claim arose out of the supply of the Qashqai motor vehicle by Steve Jarvin Motors to Mr Lam under a contract. None of the exceptions or limitations in s 7(2), (4) and (5) applied so as to exclude jurisdiction in the present case and, being a claim in respect of a new motor vehicle used for private purposes, the claim did not fall outside the Tribunal's jurisdiction as a result of s 14(1), (2) or (2A).
In these circumstances, the Tribunal had jurisdiction to hear and determine Mr Lam's claim. Further, in the light of the findings and conclusions of the Tribunal below in case it was held that the Tribunal did have jurisdiction to hear and determine Mr Lam's claim, which findings and conclusions were not challenged on appeal, it is appropriate for the Appeal Panel to give effect to those findings and conclusions to resolve this matter. The relevant findings and conclusion of the Tribunal at first instance are found at [189] to [199] of the reasons for decision below. The Tribunal below was satisfied that Steve Jarvin Motors was required to refund $40,236.99 to Mr Lam.
The Appeal Panel is, however, troubled that there appears to be a relevant factual matter that remains unclear: Does Mr Lam still have possession of the vehicle? The Tribunal below found, at [6] - [9] and [192], that Mr Lam had returned the vehicle and informed Steve Jarvin Motors of its rejection and the grounds of rejection and sought a refund prior to commencing his proceedings on 1 May 2015. There is, however, an allegation in par 42 of the points of claim dated 15 July 2015 that "On or about 5 May 2015 [Steve Jarvin Motors] delivered the vehicle to [Mr Lam's] home address despite [Mr Lam's] rejection." No finding was made in relation to this matter by the Tribunal below. In these circumstances, it appears to us that, if an order for the payment of a refund is to be made, it should be accompanied by a conditional order for the return of the vehicle to Steve Jarvin Motors if it is still in Mr Lam's possession.
Accordingly in relation to grounds 1 to 7 of Mr Lam's notice of appeal, the appropriate orders for the Appeal Panel to make are to allow the appeal, set aside orders 1 and 2 made on 8 February 2016 and order that Steve Jarvin Motors Pty Ltd pay to Katuan Lam the sum of $40,236.99 within 14 days of the date of these orders and, if Mr Lam still has the Qashqai motor vehicle in his possession, he should be required to return to Steve Jarvin Motors, within 7 days of his receiving payment of the refund.

[35]

No Jurisdiction derived from s 28 or Pt 3 of Sch 4 of the NCAT Act

In grounds 6 and 7 in Mr Lam's notice of appeal, it appears that it may be suggested that the Tribunal has jurisdiction to hear and determine claims arising under the FT Act and the ACL NSW because those statutes are referred to in Pt 3 of Sch 4 to the NCAT Act. In addition, in Steve Jarvin Motors' written submissions at par 11 it was contended that "by operation of section 28 of [the NCAT Act], this Tribunal can exercise jurisdiction and functions conferred upon it, in the circumstances of this case, by [the NCAT Act, the CC Act and the FT Act]".
In our view, it would be a misunderstanding of how s 28 and Pt 3 of Sch 4 of the NCAT Act operate to conclude that these provisions conferred any jurisdiction on the Tribunal.
Under s 28(1) of the NCAT Act, "[t]he Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation". There is nothing in s 28 itself which confers any jurisdiction on the Tribunal. If jurisdiction to deal with claims for remedies in the case of a failure to comply with a consumer guarantee arising under the ACL NSW is to be conferred on the Tribunal it must be found in some other legislative provision.
There is a statement in Pt 3 of Sch 4 to the NCAT Act, at cl 3(1), in its form prior to 1 October 2015, that: "[t]he functions of the Tribunal in relation to the following legislation are allocated to the [Consumer and Commercial] Division: … Australian Consumer Law (NSW) … Consumer Claims Act 1998 … Fair Trading Act 1987 …" (The reference to the Consumer Claims Act 1998 was removed on 1 October 2015 when that Act was repealed and effectively re-enacted as Pt 6A of the FT Act.)
Even though cl 3(1) refers to the ACL NSW, the CC Act and the FT Act (which includes the ACL NSW), that clause itself does not, however, confer any jurisdiction or function on the Tribunal. Clause 3(1) merely indicates that, subject to the exceptions in cl 3(3) which are not relevant in the present case, if jurisdiction or a function is conferred on the Tribunal by the CC Act, the FT Act or any other legislation referred to in cl 3(1), matters which involve the exercise of that function or jurisdiction are allocated to the Consumer and Commercial Division of the Tribunal.

[38]

Precedent in the Tribunal

Finally, the Appeal Panel notes that the Tribunal below said the following at [107]: "Although the Tribunal is not bound by the doctrine of precedent, it should ordinarily follow decisions of the Appeal Panel and decisions of the Tribunal as constituted by the President or the Deputy Presidents: Rittau v Commissioner of Police, New South Wales Police Service [2000] NSWADT 186 at [60]. This creates consistency and predictability, and helps to achieve the objects of the Civil and Administrative Tribunal Act, particularly that identified in s 3(e), to ensure that the decisions of the Tribunal are fair and consistent. However, I agree with the opinion of Deputy President Todd of the Administrative Appeals Tribunal in Re Ganchov and Comcare (1990) 19 ALD 541, a decision referred to in Rittau's case, that, in critical cases, it may be appropriate for a member to express a contrary view. The Deputy President said in relation to the application of the doctrine of precedent in that tribunal: 'The decision in Re Willis was a decision of the president. The Tribunal is not legally required to apply a strict doctrine of precedent. It is not a court, and is not of last resort; as to which see the joint judgment of Dawson, Toohey and McHugh JJ in Hien Van Nguyen v Thang Van Nguyen (High Court of Australia, FC No 90/009, 8 March 1990). It is, however, I believe time to say that unless decisions of the President are followed by all within the Tribunal, and unless decisions of presidential members (which of course includes deputy presidents) clearly dealing with a point in issue are followed within the Tribunal, the Tribunal could gain a reputation for inconsistency if not disarray. In critical cases it is certainly in my view open to a member to note his or her disagreement with a precedent decision, but it is not desirable for members to adhere to views that appeal to them when the point has been decided otherwise at a higher level. That is not to say, however, that members are not entitled to express their own view for the record, as I have done here.''
The Appeal Panel is of the view that it is not necessarily correct to say that the Tribunal is not bound by the doctrine of precedent.
A number of relevant propositions can be derived from the High Court's decision in Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19, (1987) 163 CLR 1 in this regard: 1. Whether the doctrine of precedent or stare decisis is capable of applying to a decision of a tribunal depends on the functions of the tribunal under the Act by which it was created - Babaniaris at 11 and see also at 31; 2. The doctrine may apply even though the Act by which the tribunal was created does not explicitly recognise that the tribunal has the status of a court - Babaniaris at 12; 3. The doctrine of stare decisis applies to decisions of tribunals which exercise judicial power, in the sense referred to, for example, by Kitto J in The Queen v Trade Practices Tribunal; Ex Parte Tasmanian Breweries Pty Ltd [1970] HCA 8; 123 CLR 361 at 374 - 5 - Babaniaris at 12 and see also at 31-32.
In The Queen v Trade Practices Tribunal; Ex Parte Tasmanian Breweries Pty Ltd, Kitto J at 374 - 5 described judicial power as follows: "Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified."
Most of the work of the Tribunal can be seen as involving the exercise of judicial power in this sense. The decision of the Court of Appeal in State Rail Authority v Consumer Claims Tribunal (1988) 14 NSWLR 473 supports this conclusion. In that case, Hope JA held at 478 (in the passage quoted earlier in these reasons), that the matters dealt with in the Consumer Claims Tribunal, one of the predecessors of the Tribunal's Consumer and Commercial Division, under the CC Act involved the exercise of judicial power.
Of course, not all matters dealt with in the Tribunal involve the exercise of judicial power. Most importantly, those matters in the Administrative and Equal Opportunity Division and the Occupational Division over which the Tribunal has administrative review jurisdiction (as described in s 30 of the NCAT Act) involve the exercise of executive rather than judicial power. These matters, however, amount to only approximately 1% of the total number of matters dealt with in the Tribunal annually.
The authorities to which the Tribunal at first instance referred in the passage quoted above were decisions relating to bodies exclusively or primarily engaged in merits review of administrative decisions. Those bodies were relevantly exercising executive rather than judicial power. Whilst it might be correct to state that those bodies were not bound by the doctrine of precedent, that conclusion cannot necessarily be applied to the Tribunal.
Since the question of whether the doctrine of precedent applies generally to decisions of the Tribunal was not argued on this appeal, we shall not express any final or definitive view upon the matter. Nonetheless, having regard to what the High Court has said in Babaniaris, to the fact that most final, first instance decisions of the Tribunal are made in the exercise of judicial power and can be appealed to the Appeal Panel as of right on a question of law and to the reasoning in the decisions referred by the Tribunal below at [107] of its reasons for decision, we think that it is appropriate for any Members sitting at first instance in the Tribunal to consider themselves bound, at least, to follow decisions of the Appeal Panel on questions of law.

[39]

Principal Question 2 - Costs at First Instance

The second principal question, based on ground 9 in the grounds of appeal, raised the issues whether the Tribunal, when it refused to exercise its discretion to award costs in Mr Lam's favour: 1. made an error of principle; or 2. mistook the facts.
As we understand it, this ground was only intended to arise if Mr Lam was successful in relation to the substantive aspects of the appeal.
The Tribunal below, appropriately, considered the question of costs on the alternate basis that it was wrong in concluding that the Tribunal did not have jurisdiction and that Mr Lam was successful in obtaining an order for the payment of $40,236.99. Its reasons were as follows: 166. Even if I had found that the Tribunal had jurisdiction to determine the applicant's claims concerning a failure to comply with the consumer guarantees, I would not have exercised my discretion to award costs in his favour. 167. The applicant's case was not "overwhelming." There was conflicting evidence as to the extent of the defects to the vehicle and as to the implications of such defects for the safety of the vehicle. Further, he was unsuccessful in relation to the s 18 claim and the merits of the claim concerning the guarantee in s 56 of the Australian Consumer Law (NSW). This is not a case where "the relative strengths of the claims made by each of the parties" would justify a costs order (see Civil and Administrative Tribunal Act, s 60(3)(c)). 168. There was very little evidence concerning settlement negotiations. In any event, the respondents were entitled to resist the applicant's claims and to have them determined by the Tribunal. 169. As for the applicant's claim that he was "forced" to engage lawyers, it is, of course, more difficult for a person of non-English speaking background to present his or her case in the Tribunal. However, as Nissan Australia submitted, the Tribunal does provide interpreters to assist persons with limited English. Further, the Tribunal has a duty to ensure that the parties to the proceedings before it understand the nature of the proceedings, and, if requested to do so, to explain to the parties any aspect of the procedure of the Tribunal (Civil and Administrative Tribunal Act, s 38(5)). The circumstance that a person has limited English is not, of itself, a sufficient reason to award costs. I note also that there is no evidence of the applicant's English language skills. 170. The circumstances of this case are not out of the ordinary: see 203 Castlereagh Street Pty Ltd v Skybloo Holdings Pty Ltd (No 3) [2015] NSWCATAP 240 at [32]. I am not of the view that there are special circumstances warranting an award of costs. Nor am I of the view that it is an appropriate case in which to award costs to the applicant, in the absence of special circumstances. 171. The usual rule that each party pay his, her or its own costs should apply.
The awarding of costs in the Tribunal is discretionary and an appeal against an award of costs will generally only be successful if the appellant can establish an error falling within the principles set out in House v The King [1936] HCA 40; 55 CLR 499 at 505. Thus, in order to interfere on appeal, the Appeal Panel must be satisfied that: 1. the Tribunal below: 1. acted upon a wrong principle, 2. allowed extraneous or irrelevant matters to guide or affect it; 3. mistook the facts; 4. did not take into account some material consideration; or 1. the Tribunal's failure properly to exercise the discretion may be inferred from the character of the result being unreasonable or plainly unjust.
In the present case, since Mr Lam's claim was brought in the Consumer and Commercial Division of the Tribunal and the amount claimed or in dispute was more than $30,000, r 38 of the Rules applied, displacing in relevant respects s 60 of the NCAT Act.
Rule 38 relevantly provides: 38 Costs in Consumer and Commercial Division of the Tribunal (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if: … (b) the amount claimed or in dispute in the proceedings is more than $30,000.
Section 60 states: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section: costs includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
As can be noted from the reasons for decision of the Tribunal below, its costs decision was based on a number of propositions including: 1. "This is not a case where 'the relative strengths of the claims made by each of the parties" would justify a costs order (see Civil and Administrative Tribunal Act, s 60(3)(c))' - at [167]; 2. "The circumstance that a person has limited English is not, of itself, a sufficient reason to award costs." - at [169] 3. "The circumstances of this case are not out of the ordinary…. I am not of the view that there are special circumstances warranting an award of costs." - at [170]; 4. "Nor am I of the view that it is an appropriate case in which to award costs to the applicant, in the absence of special circumstances." - at [170]; 5. "The usual rule that each party pay his, her or its own costs should apply." - at [171].
From these propositions it is obvious that the Tribunal applied s 60 rather than r 38 in this case. This is an error of principle and of law. It justifies the Appeal Panel not acting upon the decision of the Tribunal below made on the alternate basis that it was wrong on the question of jurisdiction. It is unnecessary for us, therefore, to consider whether the Tribunal mistook the facts as contended by Mr Lam as the second limb of ground 9.
In the circumstances set out in r 38(2)(b) of the Rules, the Tribunal does not apply s 60 but rather has an unfettered discretion in relation to costs, although that discretion must be exercised judicially. In Latoudis v Casey [1990] HCA 59; 170 CLR 534 McHugh J held at 568: "even when the discretion [to award costs] is uncontrolled, civil courts act on the basis that a successful party has a reasonable expectation of obtaining an order for costs and that the discretion to refuse to award costs should not be exercised against a successful party except for reason connected with the case".
In our view this principle should also be applied in the Tribunal when dealing with costs when r 38(2)(b) applies. Mr Lam has been very substantially successful in his claim against Steve Jarvin Motors and there was nothing put to us concerning the conduct of the case or any other reason connected with it that would justify depriving Mr Lam of his costs. Accordingly, we propose to order Steve Jarvin Motors to pay Mr Lam's cost of or incidental to the proceedings at first instance.
In his notice of appeal, Mr Lam did not seek a costs order against Nissan in respect of the proceedings at first instance.
Neither Steve Jarvin Motors nor Nissan appealed against the absence of a costs order in their favour in the Tribunal below and, accordingly, we do not propose to make any different order in that regard on this appeal.

[40]

Costs of the Appeal

Mr Lam lodged his notice of appeal on 4 March 2016. As a result, r 38A of the Rules applies. That rule provides: 38A Costs in internal appeals (1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act because of the operation of: (a) enabling legislation, or (b) the Division Schedule for the Division of the Tribunal concerned, or (c) the procedural rules. (2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.
In this case, r 38 applied at first instance so that "the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance … differed from those set out in section 60 of the [NCAT] Act because of the operation of … the procedural rules [as defined in s 4(1) of the NCAT Act]". Under r 38A(2), therefore, the Appeal Panel is required to apply r 38 when deciding whether to award costs in relation to this appeal.
Mr Lam has been successful on this appeal. As has been noted above, the general rule is that costs should follow the event unless there are circumstances connected with the case which would justify a different order.
In this regard, Mr Callanan submitted that his client, Steve Jarvin Motors, had made an open offer to pay to Mr Lam the cost of the vehicle ($38,086.99), but not other associated expenses or costs, by letter of 25 May 2016, which offer was not accepted.
As it has transpired, however, the amount recovered by Mr Lam on the appeal is in excess of the amount offered by Steve Jarvin Motors. This was the amount that the Tribunal below held was recoverable by Mr Lam and no appeal against that finding was made. We have also held that Mr Lam is entitled to an order for costs in respect of the proceedings at first instance. Although the letter of 25 May 2016 was not a Calderbank offer, the principles that apply in relation to such offers might also provide some guidance in a case such as the present.
In Guest v Karl Romandi & Helen De Luis Pty Ltd (No. 2) [2012] NSWCA 105, the Court of Appeal considered a Calderbank offer made in that case and provided a short summary of the principles as follows (at [5]): "Whether the rejection of a Calderbank offer justifies, in the exercise of the Court's discretion, a departure from the ordinary rule as to costs depends on whether the final judgment or outcome is no more favourable than the terms of the offer, whether the offer was a genuine offer of compromise and whether, in all the circumstances, the offeree's failure to accept the offer warrants departure from the ordinary rule. This last question is usually resolved by addressing whether the offeree acted unreasonably in refusing to accept the offer: SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 at[37]; Jones v Bradley (No 2) [2003] NSWCA 258 at [8]-[9]; Commonwealth of Australia v Gretton [2008] NSWCA 117 at [1], [43], [44], [117], [120]."
Bearing in mind these principles to the extent that they may be applicable, we do not believe that the open offer made by letter of 25 May 2016 provides, in the circumstances of this case, a sufficient basis for departing from the usual rule that costs should follow the event on this appeal, insofar as Steve Jarvin Motors is concerned. In all the circumstances, we think it appropriate that Steve Jarvin Motors should pay Mr Lam's costs in respect of the appeal.
As to Nissan's position, Mr Lam in his notice of appeal did not seek a costs order against Nissan in respect of the appeal. Nor did he seek on appeal to challenge any of the Tribunal's conclusions or orders concerning his claims against Nissan as originally made in the Tribunal below. Nissan was a party to the appeal by operation of r 29(b) of the Rules but limited its submissions to its position, which was not affected by the appeal to any significant extent.
As a consequence and in these circumstances, we do not propose to make a costs order in favour of Mr Lam against Nissan in respect of this appeal. Nor do we propose to order that Nissan's costs of the appeal should be paid by any other party.
The Minister intervened, as he was entitled, as amicus curiae. In these circumstances, we do not think it is appropriate to make any costs order against or in favour of the Minister. We should, however, note that the Appeal Panel appreciated the Minister's appropriate and helpful intervention and submissions, made both in writing and orally.

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