Fair Trading Tribunal Act 1998 No 161

An Act to establish a tribunal to adjudicate consumer and commercial disputes; to repeal the Commercial Tribunal Act 1984 and to amend certain other Acts consequentially; and for other purposes.

Part 1 Preliminary

1 Name of Act

This Act is the Fair Trading Tribunal Act 1998.

2 Commencement

This Act commences on a day or days to be appointed by proclamation.

3 Objects of Act

The objects of this Act are as follows:

(a)  to establish an independent Fair Trading Tribunal to determine disputes in relation to matters over which it is given jurisdiction by an enactment, and

(b)  to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair, and

(c)  to enable proceedings before the Tribunal to be determined in an informal, expeditious and inexpensive manner.

4 Definitions

In this Act:

assessor means an assessor appointed under this Act.

Chairperson means the Chairperson of the Tribunal.

Deputy Chairperson means a Deputy Chairperson of the Tribunal.

Deputy Registrar means a Deputy Registrar of the Tribunal.

exercise a function includes perform a duty.

function includes a power, authority or duty.

legal practitioner means a barrister, or solicitor, within the meaning of the Legal Profession Act 1987.

Registrar means the Registrar of the Tribunal.

senior member means a senior member of the Tribunal.

Tribunal means the Fair Trading Tribunal established by this Act.

5 Notes

Notes included in the text of this Act do not form part of this Act.

Part 2 Establishment of Tribunal

Division 1 Establishment and functions

6 Fair Trading Tribunal

(1)  A Fair Trading Tribunal of New South Wales is established by this Act.

(2)  The Tribunal has and may exercise such functions as are conferred or imposed on it by or under this or any other Act or law.

Note—

The following Acts confer jurisdiction on the Tribunal:

Consumer Claims Act 1998

Consumer Credit Administration Act 1995

Consumer Credit (New South Wales) Act 1995

Credit Act 1984

Credit (Finance Brokers) Act 1984

Credit (Home Finance Contracts) Act 1984

Fair Trading Act 1987

Home Building Act 1989

Motor Dealers Act 1974

Motor Vehicle Repairs Act 1980

Travel Agents Act 1986

s 6, note: Am 1999 No 31, Sch 1.13 [1].

7 Members of Tribunal

The Tribunal consists of the following members:

(a)  a Chairperson,

(b)  a Deputy Chairperson or Deputy Chairpersons,

(c)  senior members,

(d)  other members.

Division 2 Membership of Tribunal

8 Appointment of members of Tribunal

(1)  The members of the Tribunal are to be appointed by the Governor.

(2)  A member of the Tribunal may be appointed on a full-time basis or a part-time basis.

9 Qualifications and terms of office of members

(1)  A person is eligible to be appointed as the Chairperson or a Deputy Chairperson only if the person is qualified to be a judge of the District Court.

(2)  A person is eligible to be appointed as a senior member only if the person is a legal practitioner, or is qualified to be admitted as a legal practitioner, in New South Wales.

(3)  A person is eligible to be appointed as a member of the Tribunal (other than the Chairperson, a Deputy Chairperson or a senior member) only if the person has the qualifications or skills determined by the Minister.

(4)  Schedule 1 has effect with respect to the members of the Tribunal.

10 Functions of Chairperson

(1)  The Chairperson is the executive officer of the Tribunal and is responsible for the overall operation and administration of the Tribunal.

(2)  The Chairperson must:

(a)  monitor the operations of the Tribunal to ensure that those operations are just, economical, informal and as speedy as practicable, and

(b)  allocate the work of the Tribunal among the members (including the Chairperson) in accordance with directions under this section.

(3)  Without limiting the operation of subsection (1), the Chairperson may give directions as to:

(a)  the arrangement of the business of the Tribunal, and

(b)  the practice and procedure to be followed in, or for the purposes of, proceedings before the Tribunal, or in alternative dispute resolution procedures under this Act, and

(c)  the places at which the Tribunal may sit, and

(d)  the procedure of the Tribunal generally, and

(e)  the procedure of the Tribunal at a particular place, and

(f)  any matter in respect of which the Chairperson is authorised by or under this Act or any other law to give directions, and

(g)  subject to this Act, the regulations and any other law—any matter necessary or convenient to be determined by direction of the Chairperson for carrying out or giving effect to this Act.

(4)  Subject to the regulations, the functions of the Chairperson (other than a power of delegation under this section) may be delegated to any member of the Tribunal or to the Registrar or another staff member of the Tribunal.

Note—

Section 49 of the Interpretation Act 1987 contains general provisions relating to the delegation of functions.

11 Functions of Tribunal members

A member of the Tribunal has and may exercise the functions conferred or imposed on the member by or under this or any other Act or law.

Division 3 Organisation

12 Divisions of Tribunal

(1)  The Tribunal comprises the following Divisions:

(a)  the Commercial Division, in which the Tribunal’s jurisdiction is to be exercised in respect of matters arising under any of the following Acts:

(i)  the Consumer Credit Administration Act 1995,

(ii)  the Consumer Credit (New South Wales) Act 1995,

(iii)  the Credit Act 1984,

(iv)  the Credit (Finance Brokers) Act 1984,

(v)  the Credit (Home Finance Contracts) Act 1984,

(vi), (vii)    (Repealed)

(viii)  the Travel Agents Act 1986,

and in respect of any matter prescribed by or under any Act, and

(b)  the Home Building Division, in which the Tribunal’s jurisdiction is to be exercised in respect of any matter arising under the Home Building Act 1989, and

(c)  the Motor Vehicles Division, in which the Tribunal’s jurisdiction is to be exercised in respect of any matter arising under the Consumer Claims Act 1998 in connection with a motor vehicle, and

(d)  the Consumer Claims Division, in which the Tribunal’s jurisdiction is to be exercised in respect of any matter arising under the Consumer Claims Act 1998 (other than a matter in connection with a motor vehicle) and all other matters, except as provided by subsection (2).

(2)  An Act or law conferring jurisdiction on the Tribunal may provide for that jurisdiction to be exercised in any specified Division of the Tribunal.

(3)  In case of any doubt, the proper Division for dealing with any matter may be determined by the Registrar.

(4)  Matters may be transferred between Divisions in accordance with directions of the Chairperson.

s 12: Am 1999 No 31, Sch 1.13 [2].

13 Constitution of Tribunal for particular proceedings

(1)  For the purposes of any proceedings, the Tribunal may be constituted by one, two or three of its members.

(2)  The Chairperson may give directions as to which members are to constitute the Tribunal for the purposes of any particular proceedings or class of proceedings.

(3)  In giving a direction as to the members who are to constitute the Tribunal for the purposes of any particular proceedings, the Chairperson is to have due regard to the degree of public importance or complexity of the matters to which the proceedings relate.

(4)  A direction under this section in respect of particular proceedings may be revoked, and another given in its place:

(a)  at any time after the giving of the direction and before the commencement of the hearing of the proceedings, or

(b)  if the member constituting the Tribunal (or, in the case of proceedings before the Tribunal where it is constituted by two or more members, one of those members) during the hearing of the proceedings, or after the completion of the hearing but before the matter to which the proceedings relate is determined:

(i)  ceases to be a member, or

(ii)  ceases to be available for the purposes of the proceedings,

at any time after the member ceases to be a member or to be available.

(5)  The Tribunal, if reconstituted in accordance with subsection (4) (b), may, for the purposes of the proceedings, have regard to any record of the proceedings before the Tribunal as previously constituted, including a record of any evidence taken in the proceedings.

14 Sittings of Tribunal

More than one sitting of the Tribunal, or of any Division of the Tribunal, may be held at the same time.

15 Annual report

(1)  As soon as practicable after 30 June (but on or before 31 December) in each year, the Chairperson must provide the Minister with a report on the operations of the Tribunal for the period ending on 30 June in that year.

(2)  The Minister is to lay the report, or cause it to be laid, before both Houses of Parliament as soon as practicable after receiving the report.

Division 4 Assessors

16 Appointment of assessors

(1)  The Chairperson may appoint any person whose name is on the list compiled under Schedule 2 as an assessor for the purpose of particular proceedings before the Tribunal.

(2)  An assessor has the functions conferred or imposed on an assessor by or under this or any other Act or law.

(3)  Schedule 2 applies to and in respect of an assessor appointed under this section.

17 Inquiries by assessors

(1)  If proceedings are pending in the Tribunal, the Tribunal or the Chairperson may, with the consent of the parties, direct that an inquiry into any issue raised in, or other matter connected with, the proceedings be made by a single assessor.

(2)  The assessor making such an inquiry is to make a report to the Tribunal.

(3)  If a report is made to the Tribunal under this section, the Registrar is to furnish a copy of the report to each of the parties as soon as is practicable.

(4)  The Tribunal may adopt any findings or observations set out in a report under this section.

(5)  An assessor, in making an inquiry under this section, has and may exercise such functions as the regulations may prescribe.

(6)  An assessor who has made an inquiry under this section in relation to any proceedings is disqualified from further participation in those proceedings unless the parties otherwise agree.

18 Assessors sitting with Tribunal

(1)  If proceedings are pending in the Tribunal, the Tribunal may, in determining the proceedings or any part of the proceedings, be assisted by one or more assessors.

(2)  An assessor assisting the Tribunal under this section may assist and advise the Tribunal, but is not to adjudicate on any matter before the Tribunal.

(3)  The Tribunal may dispense with the services of an assessor at any stage of the proceedings.

Division 5 Registrar and staff

19 Appointment of Registrar and staff

(1)  A Registrar of the Tribunal and such Deputy Registrars and other staff as may be necessary for the purposes of this Act may be employed under Part 2 of the Public Sector Management Act 1988.

(2)  The Tribunal may also employ staff. Part 2 of the Public Sector Management Act 1988 does not apply to or in respect of staff appointed under this subsection.

(3)  The Chairperson may on behalf of the Tribunal enter into arrangements with any government agency, or other body or person (whether in the public or private sector) for the provision of assistance to the Tribunal in connection with the exercise of its functions.

20 Functions of Registrar and Deputy Registrars

(1)  The Registrar has the following functions:

(a)  to assist the Chairperson in managing the affairs of the Tribunal, and

(b)  such judicial, administrative or other functions as may be conferred or imposed on the Registrar by or under this or any other Act or law.

(2)  A Deputy Registrar may exercise the functions of the Registrar:

(a)  as directed by the Registrar, and

(b)  during the absence of, or a vacancy in the office of, the Registrar.

(3)  Anything done or omitted to be done by a Deputy Registrar in exercising a function of the Registrar has effect as if it had been done or omitted to be done by the Registrar.

Part 3 Jurisdiction of Tribunal

21 General statement of jurisdiction

(1)  The Tribunal has such jurisdiction to decide matters, and such powers to make orders and otherwise exercise any function in connection with any such decisions, as is conferred on it by any Act or law.

(2)  Except as provided by any Act, the Tribunal has jurisdiction in respect of a matter arising whether before or after the commencement of any provision of this Act.

22 Other jurisdictions excluded in certain cases

(1)  In this section, court means any court, tribunal, board or other body or person (other than one prescribed by or under subsection (2)) that:

(a)  is empowered under any other Act, or

(b)  by consent of or agreement between two or more persons has authority,

to decide or resolve any issue that is in dispute, whether through arbitration or conciliation or any other means.

(2)  The definition in subsection (1) does not extend to:

(a)  a court, tribunal, board, body or person that, in relation to a particular matter, is empowered by law to impose a penalty, admonition or other sanction for a contravention of a law or for misconduct or breach of discipline proved to have been committed in connection with that matter but is not empowered to award or order compensation or damages in respect of that matter, or

(b)  a court, tribunal, board, body or person prescribed, or of a class prescribed, by the regulations.

(3)  If, at the time when an application was made to the Tribunal in accordance with this Act, no issue arising under the application was the subject of a dispute in proceedings pending before a court, a court has no jurisdiction to hear or determine such an issue.

(4)  Subsection (3) ceases to apply to the extent to which the application concerned is dismissed for want of jurisdiction or withdrawn.

(5)  Subsection (3) does not preclude a court of record from hearing and determining any proceedings in which it is claimed that any order, determination or ruling of the Tribunal is invalid for want of jurisdiction or from making any order as a consequence of that finding.

(6)  For the purposes of subsection (3), an issue arises under an application made to the Tribunal only if the existence of the issue is shown in the applicant’s claim or is recorded in the record made by the Tribunal in accordance with this Act.

(7)  If, at the time when an application is made to the Tribunal in accordance with this Act, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue.

(8)  Subsection (7) ceases to apply to the extent to which the proceedings concerned are dismissed or quashed by the court, or by another court, for want of jurisdiction or without deciding the issue on its merits, or withdrawn.

(9)  At a hearing of an application by the Tribunal, a finding or decision made by a court, tribunal, board, body or person referred to in subsection (2) (a) or prescribed under subsection (2) (b) is admissible as evidence of the finding or decision.

23 Transfer of proceedings to other courts or tribunals

(1)  If all the parties so agree or the Tribunal of its own motion or on the application of a party so directs, proceedings instituted in or before the Tribunal must be transferred, in accordance with the rules of that court, to a court that has jurisdiction in the matter and are to continue before that court as if they had been instituted there.

(2)  If all the parties so agree or a court of its own motion or on the application of a party so directs, proceedings instituted in or before the court for a matter for which the Tribunal has jurisdiction must be transferred to the Tribunal in accordance with the regulations and are to continue before the Tribunal as if they had been instituted there.

Part 4 Procedure of Tribunal

24 Application to Tribunal

A person may, in the manner and within the time prescribed by or under the enactment under which the application is made, apply to the Tribunal to have a matter dealt with.

25 Notice of application to be served on other parties

(1)  The Registrar must cause notice of an application to the Tribunal to be served on each party (other than the applicant) to the proceedings within such time and in such manner as the Chairperson directs.

(2)  It is sufficient compliance with this section if:

(a)  the Registrar directs a party to the proceedings to serve notice of the application on another party on the Registrar’s behalf, and

(b)  notice is served on the other party in accordance with the Chairperson’s directions referred to in subsection (1).

26 Presiding member

(1)  This section applies in relation to proceedings before the Tribunal where the Tribunal is constituted for the purposes of those proceedings by two or three members.

(2)  If the Chairperson is one of the members of the Tribunal as constituted for the purposes of the proceedings, the Chairperson is to preside at the proceedings.

(3)  If the Tribunal as constituted for the purposes of the proceedings does not include the Chairperson but includes a Deputy Chairperson, the Deputy Chairperson is to preside at the proceedings.

(4)  If the Tribunal as constituted for the purposes of the proceedings:

(a)  does not include the Chairperson or a Deputy Chairperson, and

(b)  includes one, and only one, senior member,

the senior member is to preside at the proceedings.

(5)  If none of subsections (2)–(4) applies, the Chairperson is to designate one of the members who constitute the Tribunal for the purposes of the proceedings as the member who is to preside at the proceedings.

27 Procedure of Tribunal generally

(1)  The Tribunal may, subject to this Act, determine its own procedure.

(2)  The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3)  The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(4)  The Tribunal is to take such measures as are reasonably practicable to ensure that the parties to the proceedings before it understand:

(a)  the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b)  the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings.

(5)  The Tribunal:

(a)  is to act as expeditiously as is practicable, and

(b)  is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(c)  may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and

(d)  in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and

(e)  may require a document to be served outside the State, and

(f)  may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and

(g)  may dismiss at any stage any proceedings before it for want of prosecution by the applicant or at the request of the applicant, and

(h)  may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or for any other reason that appears to it sufficient.

(6)  The Tribunal may, of its own motion or on application (whether made before or after the expiry of the time limit concerned) by any person, extend the period of time within which anything would otherwise be required by or under this Act to be done.

28 Procedural directions

(1)  Subject to any directions of the Chairperson, the member of the Tribunal who presides, or is to preside, at proceedings before the Tribunal may, at a directions hearing held for the purpose or otherwise, give directions relating to procedure that, in the opinion of the member, will enable costs to be reduced and will help to achieve a prompt hearing of the matters in issue between the parties to the proceedings.

(2)  The powers conferred by subsection (1) extend to enabling the presiding member, if it appears just and expedient to do so, to direct that several matters that are in some manner associated are to be heard and determined together.

(3)  The functions of a member of the Tribunal under this section may, to the extent prescribed by the regulations, be delegated to the Registrar.

29 Amendments and irregularities

(1)  The Tribunal may, in any proceedings before it, make any amendments to any document filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice.

(2)  Any such amendment may be made:

(a)  at any stage of the proceedings (including the commencement or purported commencement of proceedings), and

(b)  on such terms as the Tribunal thinks fit (including, subject to this Act, terms as to costs).

(3)  If a provision of this Act or the regulations is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings before the Tribunal, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings or any decision in the proceedings unless the Tribunal otherwise determines.

(4)  The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings, a step taken in the proceedings or a decision in the proceedings.

30 Proceedings on hearing to be conducted in public

(1)  If proceedings before the Tribunal are to be determined by a hearing, the hearing is to be open to the public, except as provided by this section.

(2)  If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may make any one or more of the following orders:

(a)  an order that the hearing be conducted wholly or partly in private,

(b)  an order prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal,

(c)  an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d)  an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

31 Circumstances in which hearing may be dispensed with

(1)  The Tribunal may, with the consent of the parties to any proceedings before it, determine the proceedings by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing, if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.

(2)  The regulations may prescribe classes of matters or circumstances in which the consent referred to in subsection (1) may be dispensed with.

32 Opportunity for parties to present case

The Tribunal must ensure that every party to proceedings before the Tribunal is given a reasonable opportunity:

(a)  to adduce evidence and otherwise present the party’s case (whether at a hearing or otherwise), and

(b)  to make submissions in relation to the issues in the proceedings.

33 Representation of parties

(1)  Except to the extent that the Tribunal, in accordance with the regulations, otherwise orders, a party to proceedings before the Tribunal has the carriage of his or her own case, and is not entitled to be represented.

(2)  In cases where an amount is claimed or disputed, representation by a legal practitioner is not allowed if the amount does not exceed $10,000 (or such other amount as may be prescribed by the regulations) unless the Tribunal is of the opinion that the exceptional circumstances of the case warrant such representation.

(3)  If, however, a party to the proceedings has been granted legal assistance under Division 2 of Part 2 of the Fair Trading Act 1987, the parties to the proceedings are entitled to be represented by a legal practitioner.

(4)  A party to proceedings may, in accordance with the regulations, apply to the Tribunal for permission to be represented in the proceedings or in part of the proceedings.

(5)  Except as otherwise provided by the regulations, no person other than a legal practitioner is entitled to demand or receive any fee or reward for representing a party in proceedings before the Tribunal.

(6)  Without limiting the generality of subsection (1), the Tribunal may appoint any other person it thinks fit to represent a party who appears to the Tribunal to be an incapacitated person.

(7)  In this section:

incapacitated person means:

(a)  a minor, or

(b)  a person who is totally or partially incapable of representing himself or herself in proceedings before the Tribunal because the person is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled, or

(c)  any other person of a class prescribed by the regulations for the purposes of this paragraph.

34 Interpreters

(1)  A person appearing before the Tribunal to give evidence may request the Tribunal to appoint an interpreter for the purposes of communication between the Tribunal and the person.

(2)  The Tribunal must comply with a request made by a person under this section unless it considers that the person is sufficiently proficient in spoken English.

(3)  If the Tribunal considers that a person appearing before it to give evidence is not sufficiently proficient in spoken English, the Tribunal must appoint an interpreter for the purposes of communication between the Tribunal and the person, even though the person has not made a request under this section.

(4)  In this section, interpreter includes a person who interprets signs or other things made or done by a person who cannot speak adequately for the purposes of giving evidence in proceedings.

35 Oral evidence by telephone etc

(1)  The Tribunal may allow a person to appear before the Tribunal, or to give evidence, and may conduct any aspect of proceedings before it, by telephone or closed-circuit television or by any other means of communication.

(2)  If, when proceedings are held in public, a person appears or gives evidence by a means allowed under subsection (1), the Tribunal must take such steps as are reasonably necessary to ensure that the public nature of the proceedings is preserved and that the rights of parties to the proceedings are not prejudiced.

36 Powers in relation to witnesses

(1)  The Tribunal may:

(a)  call any witness of its own motion, and

(b)  examine any witness on oath, or by use of a statutory declaration, and

(c)  examine or cross-examine any witness to such extent as the Tribunal thinks proper in order to elicit information relevant to the exercise of the functions of the Tribunal in any proceedings, and

(d)  compel any witness to answer questions which the Tribunal considers to be relevant in any proceedings before it.

(2)  If the Tribunal decides to call a person as a witness under subsection (1) (a), the Tribunal may:

(a)  seek to procure the voluntary attendance of the witness before it by notifying the person in such manner as it thinks appropriate in the circumstances, or

(b)  issue a summons to compel the attendance of the person before it.

(3)  Nothing in subsection (1) enables the Tribunal to compel a witness to answer a question if the witness has a reasonable excuse for refusing to answer the question.

37 Issue of summons

(1)  A summons for the purposes of this Act may be issued by the Registrar:

(a)  on the application of a party to the proceedings, or

(b)  at the direction of the Tribunal.

(1A)  The fee prescribed by the regulations is payable for the issue of a summons on the application of a party to the proceedings.

(2)  Such a summons must be signed by the Registrar or as otherwise prescribed by the regulations and may require the person to whom it is addressed:

(a)  to attend and give evidence, or

(b)  to attend and produce documents or other things,

or both.

(3)  The regulations may make provision for or with respect to excusing, in prescribed circumstances, a person who produces documents or other things in answer to a summons from attendance at the Tribunal.

(4)  A person who, without lawful excuse, fails to comply with the requirements of a summons is guilty of an offence.

Maximum penalty: 100 penalty units.

(5)  A summons may be served within or outside the State.

s 37: Am 2000 No 53, Sch 1.7 [1].

38 Witness may be apprehended

(1)  If any person served with a summons to attend before the Tribunal fails to comply with the summons, the Chairperson or a Deputy Chairperson may, on proof of the service of the summons, issue to such person as the Chairperson or Deputy Chairperson appoints a warrant for the apprehension of that person.

(2)  A warrant issued under subsection (1) authorises the apprehension of the witness, the bringing of the witness before the Tribunal and the detention of the witness in custody for that purpose until released by order of the Chairperson or Deputy Chairperson or the Supreme Court.

(3)  The apprehension of any witness under this section does not relieve the witness from any liability incurred by reason of non-compliance with a summons to attend before the Tribunal.

39 Contempt of Tribunal

(1)  A person is guilty of contempt of the Tribunal if:

(a)  the person fails to attend in obedience to a summons after having been served with a summons to attend before the Tribunal as a witness, or

(b)  the person fails to produce any document or other thing in the person’s custody or control that the person is required by a summons to produce after having been served with a summons to attend before the Tribunal, or

(c)  the person refuses to be sworn or to make an affirmation or refuses or otherwise fails to answer any question that is put to the person by the Tribunal after being called or examined as a witness before the Tribunal, or

(d)  the person wilfully threatens or insults:

(i)  a member, assessor or officer of the Tribunal, or

(ii)  any witness or person summoned to attend before the Tribunal, or

(iii)  a practising legal practitioner or other person authorised to appear before the Tribunal, or

(e)  the person misbehaves himself or herself before the Tribunal, or

(f)  the person interrupts the proceedings of the Tribunal, or

(g)  the person obstructs or attempts to obstruct the Tribunal, a member of the Tribunal or a person acting with the authority of the Tribunal in the exercise of any lawful function, or

(h)  the person publishes, or permits or allows to be published, any evidence given before the Tribunal or any of the contents of a document produced at a hearing that the Tribunal has ordered not to be published, or

(i)  the person publishes, or permits or allows to be published, any evidence given before the Tribunal at a hearing held in private or any of the contents of a document produced at a hearing held in private, except to an officer or member of the Tribunal or as permitted by the Tribunal or by the regulations, or

(j)  the person does any other thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court,

unless the person establishes that there was a reasonable excuse for the act or omission concerned.

(2)  The provisions of sections 199–203 of the District Court Act 1973 apply to and in respect of contempt of the Tribunal, when constituted by (or by members that include) the Chairperson or a Deputy Chairperson, in the same way as they apply to and in respect of contempt of the District Court.

(3)  If, when the Tribunal is constituted otherwise than as referred to in subsection (2), it is alleged or it appears to the Tribunal that a person is guilty of contempt of the Tribunal, the Tribunal may refer the matter to the Supreme Court, which may dispose of the matter in such manner as it considers appropriate.

40 Protection of practising legal practitioners, witnesses and others

(1)  A practising legal practitioner or other person appearing before the Tribunal on behalf of a party has the same protection and immunity as a barrister has in appearing for a party in proceedings in the Supreme Court.

(2)  Subject to this Act, a person summoned to attend or appearing before the Tribunal as a witness has the same protection, and is, in addition to the penalties provided by this Act, subject to the same liabilities, as a witness in proceedings in the Supreme Court.

41 Tribunal divided in opinion

(1)  If the Tribunal is constituted by more than one member for the purposes of the determination of any proceedings and the members are divided in opinion, the opinion of a majority is taken to be the decision of the Tribunal.

(2)  However, a question of law (including the question whether a particular question is a question of law) arising in proceedings constituted by more than one member is to be decided in accordance with the opinion of the member presiding at the proceedings.

(3)  If, on a matter other than a question of law, opinion is equally divided, the opinion of the presiding member is taken to be the decision of the Tribunal.

42 Tribunal may reserve decision

(1)  The Tribunal may reserve its decision in any proceedings before it.

(2)  A reserved decision of a member or members of the Tribunal may be given:

(a)  by the member or members at a subsequent sitting of the Tribunal, or

(b)  if the decision of a member is set out in writing and signed by the member—by being delivered by a member of the Tribunal, or

(c)  by the Registrar, at a time and place of which the parties have been given reasonable notice, or

(d)  by publication to the parties in a manner approved by the Chairperson.

43 Power to impose conditions

A power of the Tribunal to make an order or other decision includes a power to make the order or other decision subject to such conditions (including exemptions) as the Tribunal specifies when making the order or other decision, except as may be provided to the contrary by any other Act.

44 Powers when proceedings settled

(1)  The Tribunal may, at any stage of proceedings before it, make such orders (including an order dismissing the application that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties to the proceedings if:

(a)  the terms of the agreed settlement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal, and

(b)  the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement.

(2)  The Tribunal may dismiss the application that is the subject of the proceedings if it is not satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement.

45 Service of notice of decisions of Tribunal

(1)  The Tribunal must, within the time prescribed by the regulations, give notice of its decision in a matter to the parties to the proceedings.

(2)  If the regulations so require (or if a party to the proceedings, within the time and in the manner prescribed by the regulations, requests the Tribunal to do so), the Tribunal must also prepare a written statement of reasons for its decision. The statement may be brief, but must:

(a)  set out the decision and the reasons for it, and

(b)  set out the findings on any material question of fact, and

(c)  refer to the evidence or any other material on which the findings of fact were based.

(3)  The Tribunal is to cause a copy of any statement prepared under subsection (2) to be served on each party to the proceedings within the prescribed time after the decision concerned was made.

46 Power to correct decisions of Tribunal

(1)  If, after the making of a decision by the Tribunal, the Tribunal is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, the Tribunal may direct the Registrar to alter the text of the notice or statement in accordance with the directions of the Tribunal.

(2)  If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal’s decision or the statement of its reasons, as the case may be.

(3)  Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where:

(a)  there is an obvious clerical or typographical error in the text of the notice or statement, or

(b)  there is an error arising from an accidental slip or omission, or

(c)  there is a defect of form, or

(d)  there is an inconsistency between the stated decision and the stated reasons.

(4)  The powers of the Tribunal under this section may be exercised by the Chairperson or by the member who presided at the proceedings to which the decision relates.

s 46: Am 2001 No 56, Sch 1.4.

47 Recovery of amounts ordered to be paid (other than penalties)

(1)  For the purposes of the recovery of any amount ordered to be paid by the Tribunal (including costs, but not including a civil or other penalty), the amount is to be certified by the Registrar.

(2)  A certificate given under this section must identify the person liable to pay the certified amount.

(3)  A certificate of the Registrar that:

(a)  is given under this section, and

(b)  is filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate,

operates as such a judgment.

48 Costs

(1)  The parties to a matter before the Tribunal are to bear their own costs, except as provided by this section.

(2)  In cases where an amount is claimed or disputed, costs are not to be awarded if the amount does not exceed $10,000 (or such other amount as may be prescribed by the regulations) unless the Tribunal is of the opinion that the exceptional circumstances of the case warrant an award of costs.

(3)  Except as otherwise provided by the regulations or by any other Act or law, in cases where an amount is claimed or disputed in the Commercial Division or the Home Building Division, the Tribunal may award costs if:

(a)  the amount claimed or disputed exceeds $10,000 (or such other amount as may be prescribed by the regulations), and

(b)  the parties were granted the right to legal representation.

(4)  The Tribunal may, however, in any case award costs in relation to proceedings before it in any Division:

(a)  in respect of expenses incurred in obtaining professional or expert services (other than legal services), if the amount ordered to be paid by the Tribunal exceeds the amount prescribed for the purposes of this paragraph, or

(b)  in respect of expenses incurred in a manner or in circumstances prescribed by the regulations, or

(c)  in respect of any particular expenses, if it is satisfied that there are special circumstances warranting an award of costs in respect of them.

(5)  If costs are to be awarded, 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 Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis.

(6)  In this section, costs includes:

(a)  costs of or incidental to proceedings in the Tribunal, and

(b)  the costs of or incidental to the application.

Part 5 Alternative dispute resolution

Division 1 Conciliation and preliminary measures

49 Tribunal to promote conciliation

(1)  Before making an order to determine a matter before it, it is the duty of the Tribunal to use its best endeavours to bring the parties to the proceedings to a settlement acceptable to all of them.

(2)  If such a settlement is reached, the Tribunal must make orders that give effect to the settlement to the extent permitted by this Act.

(3)  Any statement or admission made before the Tribunal or any person at a meeting or proceeding held for the purposes of subsection (1) is not admissible at a hearing of the matter concerned or in any other legal proceedings.

50 Preliminary conferences

(1)  In addition to or in the course of any action taken under section 49, the Tribunal may, before commencing to hear and determine an application, confer with, or arrange for a member of the Tribunal or the Registrar to confer with, the parties to the proceedings and make any determination with respect to the proceedings that is agreed to by the parties.

(2)  If proceedings are referred under this section to a member or the Registrar and the parties agree to the determination of the member or the Registrar, the determination has effect as a decision of the Tribunal.

(3)  If the proceedings are not determined under this section and the matter proceeds to a hearing:

(a)  evidence is not to be given, and statements are not to be made, concerning any words spoken or acts done at a conference held in accordance with this section unless the parties otherwise agree, and

(b)  any member who presided over a preliminary conference in respect of the proceedings is not entitled to be a member of the Tribunal determining the proceedings if any party to the preliminary conference objects, in the manner and form prescribed by the regulations, to the member’s participation in the proceedings.

(4)  The Chairperson may direct that a preliminary conference is to be held under this section in the case of any applications made to the Tribunal of a kind specified in the direction.

Division 2 Mediation and neutral evaluation

51 Definitions

In this Division:

mediation session means a meeting arranged for the mediation of a matter under this Division.

mediator means a person to whom the Tribunal refers a matter for mediation under this Division.

neutral evaluation session means a meeting arranged for the neutral evaluation of a matter under this Division.

neutral evaluator means a person to whom the Tribunal refers a matter for neutral evaluation under this Division.

52 Meaning of “mediation” and “neutral evaluation”

(1)  In this Act, mediation means a structured negotiation process in which the mediator, as a neutral and independent party, assists the parties to a dispute to achieve their own resolution of the dispute.

(2)  In this Act, neutral evaluation means a process of evaluation of a dispute in which the neutral evaluator seeks to identify and reduce the issues of fact and law that are in dispute. The neutral evaluator’s role includes assessing the relative strengths and weaknesses of each party’s case and offering an opinion as to the likely outcome of the proceedings.

53 Appointment of mediators and neutral evaluators

(1)  The Chairperson may appoint any person whose name is on the list compiled under Schedule 3 as a mediator or neutral evaluator for the purpose of particular proceedings pending in the Tribunal.

(2)  Mediators and neutral evaluators have the functions conferred or imposed on them by or under this or any other Act or law.

(3)  Schedule 3 has effect in respect of a mediator or neutral evaluator appointed under this section.

54 Referral by Tribunal

(1)  The Tribunal may, by order, refer a matter arising in proceedings before it for mediation or neutral evaluation if the Tribunal considers the circumstances appropriate.

(2)  The mediator or neutral evaluator may, but need not be, a person whose name is on a list compiled under Schedule 3.

55 Costs of mediation and neutral evaluation

(1)  The costs of mediation or neutral evaluation, including the costs payable to the mediator or neutral evaluator, are to be borne by the Tribunal, except to the extent that the regulations provide that the parties to the proceedings are to bear them.

(2)  Regulations made for the purposes of this section may provide that the parties are to bear the costs:

(a)  in such proportions as they may agree among themselves or, failing agreement, in such manner as may be ordered by the Tribunal, or

(b)  in any other prescribed manner.

56 Agreements and arrangements arising from mediation or neutral evaluation sessions

(1)  The Tribunal may make orders to give effect to any agreement or arrangement arising out of a mediation session or neutral evaluation session.

(2)  Nothing in this Division affects the enforceability of any other agreement or arrangement that may be made, whether or not arising out of a mediation session or neutral evaluation session, in relation to the matters the subject of any such session.

57 Privilege

(1)  In this section, mediation session or neutral evaluation session includes any steps taken in the course of making arrangements for the session or in the course of the follow-up of a session.

(2)  Subject to subsection (3), the same privilege with respect to defamation as exists with respect to judicial proceedings and a document produced in judicial proceedings exists with respect to:

(a)  a mediation session or neutral evaluation session, or

(b)  a document or other material sent to or produced to a mediator or neutral evaluator, or sent to or produced at the Tribunal or the office of the Registrar, for the purpose of enabling a mediation session or neutral evaluation session to be arranged.

(3)  The privilege conferred by subsection (2) only extends to a publication made:

(a)  at a mediation session or neutral evaluation session, or

(b)  as provided by subsection (2) (b), or

(c)  as provided by section 58.

(4)  Evidence of any thing said or of any admission made in a mediation session or neutral evaluation session is not admissible in any proceedings before any court, tribunal or body.

(5)  A document prepared for the purposes of, or in the course of, or as a result of, a mediation session or neutral evaluation session, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body.

(6)  Subsections (4) and (5) do not apply with respect to any evidence or document:

(a)  if the persons in attendance at, or identified during, the mediation session or neutral evaluation session and, in the case of a document, all persons identified in the document, consent to the admission of the evidence or document, or

(b)  in proceedings instituted with respect to any act or omission in connection with which a disclosure has been made under section 58 (c).

58 Secrecy

A mediator or neutral evaluator may disclose information obtained in connection with the administration or execution of this Division only in any one or more of the following circumstances:

(a)  with the consent of the person to whom the information relates,

(b)  in connection with the administration or execution of this Division,

(c)  if there are reasonable grounds to believe that the disclosure is necessary to prevent or minimise the danger of injury to any person or damage to any property,

(d)  if the disclosure is reasonably required for the purpose of referring any party or parties to a mediation session or neutral evaluation session to any person, agency, organisation or other body and the disclosure is made with the consent of the parties to the mediation session or neutral evaluation session for the purpose of aiding in the resolution of a dispute between those parties or assisting the parties in any other manner,

(e)  in accordance with a requirement imposed by or under a law of the State (other than a requirement imposed by a subpoena or other compulsory process) or the Commonwealth.

59 Other measures not precluded

Nothing in this Division prevents:

(a)  the parties to proceedings from agreeing to and arranging for mediation or neutral evaluation of any matter otherwise than as referred to in this Division, or

(b)  a matter arising in proceedings from being dealt with under the provisions of the Community Justice Centres Act 1983.

Part 6 Appeals and rehearings

60 Review by prerogative writ etc generally excluded

(1)  Except as provided by this section, a court of record has no jurisdiction to grant relief or a remedy by way of:

(a)  a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or

(b)  a declaratory judgment or order, or

(c)  an injunction,

in respect of a matter heard and determined or to be heard or determined by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter.

(2)  A court is not precluded from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in which the jurisdiction of the Tribunal to determine the matter was disputed, where the ground on which the relief or remedy is sought is that:

(a)  the Tribunal gave a ruling as to its jurisdiction that was erroneous, or

(b)  the Tribunal erred in refusing or failing to give a ruling as to its jurisdiction when its jurisdiction was disputed.

(3)  A court is not precluded from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in which the Tribunal has made an order, where the ground on which the relief or remedy is sought is that:

(a)  the Tribunal had no jurisdiction to make the order, or

(b)  in relation to the hearing or determination of the matter, a party to the claim had been denied natural justice.

61 Right of appeal to Supreme Court on question of law

(1)  A party to proceedings before the Tribunal may appeal to the Supreme Court on a question of law against any decision of the Tribunal in those proceedings, except where the regulations preclude such an appeal.

(2)  The Supreme Court is to hear and determine the appeal and may make such orders as it thinks appropriate in light of its decision.

(3)  The orders that may be made by the Supreme Court on appeal include (but are not limited to):

(a)  an order affirming or setting aside the decision of the Tribunal, and

(b)  an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the Supreme Court.

(4)  Regulations made for the purposes of subsection (1) may preclude an appeal:

(a)  in cases where the amount claimed or disputed in the matter concerned did not exceed $25,000 (or such other amount as may be prescribed), or

(b)  in cases of any prescribed class or description.

62 Referral of questions of law to Supreme Court

(1)  The Tribunal may refer a question of law arising in the proceedings before the Tribunal to the Supreme Court for the opinion of the Supreme Court.

(2)  The Supreme Court has jurisdiction to hear and determine any question of law referred to it under this section.

(3)  If a question of law arising in any proceedings before the Tribunal has been referred to the Supreme Court under this section, the Tribunal is not:

(a)  to give a decision in the proceedings to which the question is relevant while the reference is pending, or

(b)  to proceed in a manner, or make a decision, that is inconsistent with the opinion of the Supreme Court on the question.

(4)  A referral under this section is to be made in accordance with rules of the Supreme Court.

63 Rehearings

(1)  Except where the regulations preclude the making of an application under this section, a party to proceedings before the Tribunal may, in the manner and within a time prescribed by the regulations, apply to the Chairperson for an order directing that the matter be reheard by the Tribunal, on the ground that the applicant may have suffered a substantial injustice because:

(a)  the decision of the Tribunal was not fair and equitable, or

(b)  the decision of the Tribunal was against the weight of evidence, or

(c)  evidence that is now available was not reasonably available at the time of the hearing.

(2)  The Chairperson is not to grant the application unless, on the face of the application, it appears to the Chairperson that the applicant may have suffered a substantial injustice.

(3)  If the application is granted, the Chairperson is to determine the constitution of the Tribunal in a manner appropriate for the purposes of the rehearing, having regard to the circumstances of the case and the requirements of natural justice.

(4)  The matter is to be dealt with as a hearing de novo by the Tribunal as constituted under subsection (3).

(5)  Regulations made for the purposes of subsection (1) may preclude the making of an application under this section:

(a)  in cases where the amount claimed or disputed in the matter concerned exceeded $25,000 (or such other amount as may be prescribed), or

(b)  in cases of any prescribed class or description.

64 Original decision to operate unless otherwise ordered

(1)  Lodgment of an appeal or application for a rehearing under this Part does not affect the operation of the decision the subject of the appeal or application or prevent the taking of action to implement the decision, except as provided by any other Act or as otherwise ordered under this section.

(2)  An order staying the operation of a decision the subject of an appeal or application under this Part may be made:

(a)  by the Supreme Court in connection with an appeal under section 61, or

(b)  by the Chairperson in connection with an application under section 63.

Part 7 Miscellaneous

65 Privileged documents

(1)  Nothing in this Act requires the disclosure of a document if the Tribunal or the Chairperson is satisfied that evidence of the document could not be adduced in proceedings before a NSW court within the meaning of the Evidence Act 1995 by reason of the operation of any of the following provisions of that Act:

(a)  section 9 (Application of common law and equity), but only to the extent that it preserves any privilege against the adducing of evidence,

(b)  section 10 (Parliamentary privilege preserved),

(c)  Part 3.10 (Privileges) of Chapter 3.

(2)  In this section:

disclosure of a document includes the following:

(a)  the provision of copies of the document,

(b)  the granting of access to the document,

(c)  the disclosure of the contents of the document.

document includes a part of a document.

66 Improper disclosure of information

A person must not disclose information obtained in exercising a function under this Act unless the disclosure is made:

(a)  with the consent of the person to whom the information relates, or

(b)  in connection with the execution or administration of this Act, or

(c)  for the purpose of any legal proceedings arising out of this Act or any report of such proceedings, or

(d)  with other legal excuse.

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

67 Act to bind Crown

This Act binds the Crown.

68 Seal of Tribunal

The Tribunal is to a have a seal and that seal is to be judicially noticed.

69 Authentication of documents

(1)  Every document requiring authentication by the Tribunal is sufficiently authenticated without the seal of the Tribunal if it is:

(a)  signed by the Chairperson, or a Deputy Chairperson or senior member, or the Registrar, or

(b)  authenticated in a manner prescribed by the regulations.

(2)  Judicial notice is to be taken of the signature of the Chairperson, a Deputy Chairperson, a senior member or the Registrar when appearing on a document issued by the Tribunal.

70 Proof of certain matters not required

In any legal proceedings, no proof is required (unless evidence to the contrary is given) of:

(a)  the constitution of the Tribunal, or

(b)  any decision of the Tribunal, or

(c)  the appointment of, or the holding of office by, a member of the Tribunal.

71 Notices, service and lodgment of documents

(1)  For the purposes of this Act, a notice or document may be given to a person (and a document may be served on a person):

(a)  in the case of a natural person—by:

(i)  delivering it to the person personally, or

(ii)  leaving it at, or by sending it by post to, the residential or business address, or other address for service, of the person that was last known to the person giving or serving the document, or

(b)  in the case of a body corporate—by leaving it at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate, or

(c)  in the case of a Government Department—by leaving it at, or by sending it by post to, any office of that Department addressed to the head of the Government Department.

(2)  A notice or other document may be served on the Tribunal by leaving it at, or by sending it by post to (or a document that is required or permitted to be lodged with the Tribunal may be lodged at):

(a)  the office of the Registrar, or

(b)  if the Registrar has more than one office, any one of those offices.

(3)  Nothing in this section affects the operation of any provision of any law or the rules of a court authorising a document to be served in a manner not provided for by this section.

(4)  The regulations may:

(a)  provide for additional means of serving, giving or lodging any notice or document, and

(b)  provide that a notice or document of a class specified by the regulations be served, given or lodged only in the prescribed manner.

72 Return of documents after proceedings concluded

The Chairperson may cause a document or any other object provided to the Tribunal for the purposes of any proceedings before it to be returned to the person by whom it was provided if:

(a)  the proceedings before the Tribunal have concluded, and

(b)  the time within which an appeal from the decision of the Tribunal in the proceedings may be lodged (or the period of an extension of time for lodging the appeal) has expired with no appeal being lodged.

73 Allowances and expenses of witnesses

(1)  A person who is required to appear or give evidence before the Tribunal is entitled to be paid such allowances and expenses as are ascertained in accordance with a scale of allowances and expenses prescribed by the regulations.

(2)  Subject to subsection (3), the allowances and expenses are to be paid by the party at whose request a witness is summoned.

(3)  The Tribunal may order that the allowances and expenses of a witness referred to in subsection (2) be paid wholly or partly by the State out of money otherwise lawfully available.

74 Proceedings for offences

Proceedings for an offence against this Act or the regulations are to be disposed of summarily before a Local Court constituted by a Magistrate sitting alone.

75 Immunity of Tribunal members and others

A member of the Tribunal, in the exercise of the functions of a member, and the Registrar and Deputy Registrars, in the exercise of jurisdiction or functions conferred, imposed or delegated by or under this or any other Act, have the same protections and immunities as a judge of the District Court.

76 Chairperson may furnish reports

The Chairperson may on behalf of the Tribunal provide reports to the Minister or to the Director-General of the Department of Fair Trading concerning any matter the Chairperson considers to be of importance in relation to the administration of this Act or in relation to the jurisdiction of the Tribunal or any matter falling within its jurisdiction.

77 Regulations

(1)  The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2)  Without limiting the generality of subsection (1), the regulations may provide for the following:

(a)  the initiation of proceedings in the Tribunal,

(b)  the means for, and the practice and procedure to be followed in, the enforcement and execution of decisions of the Tribunal,

(c)  the joinder, by the Tribunal or by a party to proceedings, of other parties,

(d)  the circumstances in which matters may be heard ex parte or in which default judgments may be obtained,

(e)  the payment of interest on money adjudged by the Tribunal to be payable and which remains unpaid,

(f)  the functions of the Registrar or other officers under this Act, including functions in relation to proceedings instituted before the Tribunal,

(g)  records of the Tribunal and its proceedings,

(h)  mediation and neutral evaluation,

(i)  the provision by the Tribunal of statistical information and of services,

(j)  the form of any summons or warrant under this Act,

(k)  the fees payable in respect of an application to the Tribunal (including the waiver or refund of any such fees).

(3)  The regulations may create offences punishable by a penalty not exceeding 10 penalty units.

78 Forms

The Minister may approve the form of any document to be used for the purposes of this Act or the regulations and that is not otherwise required or permitted to be prescribed under this Act.

79 Repeal of Commercial Tribunal Act 1984 No 98

The Commercial Tribunal Act 1984 is repealed.

80 Amendment of other Acts

Each Act specified in Schedule 4 is amended as set out in that Schedule.

81 Savings, transitional and other provisions

Schedule 5 has effect.

82 Review of Act

(1)  The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.

(2)  The review is to be undertaken as soon as possible after the period of 2 years from the commencement of section 6.

(3)  A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 2 years.

Schedule 1 Provisions relating to members of Tribunal

(Section 9)

1 Definition

In this Schedule, judicial office means the office of:

(a)  Magistrate, or

(b)  Judge of the District Court, or

(c)  Judicial Member of the Industrial Relations Commission, or

(d)  Judge of the Land and Environment Court, or

(e)  Judge of the Supreme Court.

2 Terms of appointment

Subject to this Act, a member of the Tribunal holds office for such period (not exceeding 5 years) as is specified in the instrument of the member’s appointment, but is eligible for re-appointment.

3 Full-time member may serve on part-time basis

(1)  The Governor may, at the request of a member appointed on a full-time basis, determine that the person may work on a part-time basis for a specified period or periods.

(2)  A person appointed on a full-time basis who was not, at the time of appointment, the holder of a judicial office must devote the whole of his or her time to the duties of the office of member, except during any period referred to in subclause (1).

(3)  Despite subclause (2), a member of the Tribunal may:

(a)  hold, and exercise the functions of, a judicial office or another statutory or other public office, or

(b)  engage in any other employment,

with the consent of the Chairperson.

4 Remuneration

(1)  A member of the Tribunal appointed on a full-time basis is, while working on a full-time basis, entitled to be paid:

(a)  remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975, and

(b)  such travelling and subsistence allowances as the Minister may from time to time determine in respect of the member.

(2)  A member of the Tribunal appointed on a part-time basis or working on a part-time basis is entitled to be paid:

(a)  such remuneration as is determined by the Minister, and

(b)  such travelling and subsistence allowances as the Minister may from time to time determine in respect of the member.

(3)  A member of the Tribunal who is the holder of a judicial office is not, while receiving remuneration as such an officer, entitled to remuneration under this Act.

5 Provisions where judicial officer is holding office as Chairperson, Deputy Chairperson or senior member

(1)  The appointment of a person who is the holder of a judicial office as the Chairperson or as a Deputy Chairperson or senior member, or service by a person who is the holder of a judicial office as Chairperson, Deputy Chairperson or senior member, does not affect:

(a)  the person’s tenure of that judicial office, or

(b)  the person’s rank, title, status, remuneration or other rights or privileges as the holder of that judicial office.

(2)  The person’s service as Chairperson, Deputy Chairperson or senior member is, for all purposes, taken to be service as the holder of that judicial office.

6 Chairperson holding office on another tribunal

(1)  Nothing in any Act or other law operates to disqualify:

(a)  a state tribunal member from also being appointed and holding office as Chairperson of the Tribunal, or

(b)  the Chairperson of the Tribunal from also being appointed and holding office as a state tribunal member.

(2)  However, if the Chairperson of the Tribunal is appointed to or holds office as a state tribunal member, the latter office is taken to be a part-time office only despite any provision made by or under any Act or other law:

(a)  requiring the holder of the office to devote the whole of his or her time to the duties of that office, or

(b)  prohibiting the person from engaging in employment outside the duties of that office.

(3)  If the Chairperson of the Tribunal also holds office as a state tribunal member, the Chairperson is not entitled to any remuneration payable in respect of that office by or under any Act. However, nothing in this clause affects any other right of the Chairperson to remuneration that is conferred or recognised by this Act.

(4)  In this clause, state tribunal member means a member of any tribunal (other than the Tribunal) established by an Act of the Parliament of New South Wales.

7 Vacancy in office

(1)  The office of a member of the Tribunal becomes vacant if the member:

(a)  dies, or

(b)  completes a term of office and is not re-appointed, or

(c)  resigns the office by instrument in writing addressed to the Minister, or

(d)  is nominated for election as a member of the Legislative Council or of the Legislative Assembly or as a member of a House of Parliament or a legislature of another State or Territory or of the Commonwealth, or

(e)  becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or

(f)  becomes a mentally incapacitated person, or

(g)  is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or

(h)  is removed from office under this clause.

(2)  The Governor may remove a member of the Tribunal from office for incapacity, incompetence or misbehaviour.

8 Acting Chairperson

(1)  If the Chairperson is absent from duty, the most senior Deputy Chairperson or senior member is to be Acting Chairperson unless the Minister makes an appointment under subclause (2).

(2)  The Minister may appoint a Deputy Chairperson or senior member to be Acting Chairperson during the absence of the Chairperson from duty.

(3)  The Minister may make any appointment for a particular absence or for any absence that occurs from time to time.

(4)  An Acting Chairperson has the functions of the Chairperson and anything done by an Acting Chairperson in the exercise of those functions has effect as if it had been done by the Chairperson.

(5)  In this clause, absence from duty includes a vacancy in the office of Chairperson.

9 Appointment of acting Deputy Chairperson or acting senior member for a period

(1)  The Governor may appoint, as an acting Deputy Chairperson or acting senior member of the Tribunal, a person qualified for appointment as such if satisfied that the appointment is necessary to enable the Tribunal to exercise its functions effectively during the period of the appointment.

(2)  The person’s appointment is for the period (not exceeding 12 months) specified in the instrument of appointment.

(3)  An acting Deputy Chairperson or acting senior member has the functions of, and is taken to be, Deputy Chairperson or senior member, as the case may be, subject to any conditions or limitations specified in the instrument of appointment.

10 Seniority

(1)  The members of the Tribunal have seniority according to the following order of precedence:

(a)  the Chairperson,

(b)  Deputy Chairpersons and senior members, according to the days on which their appointments took effect or, if the appointments of 2 or more of them took effect on the same day, according to the precedence assigned to them by their instruments of appointment,

(c)  other members according to the days on which their appointments took effect.

(2)  If a person is re-appointed under this Act, the person’s seniority is to be determined as if there had been no break in the person’s service.

11 Leave

(1)  The entitlement of a member of the Tribunal to annual and other leave is to be as stated in the instrument of the member’s appointment.

(2)  A member may be granted leave:

(a)  in the case of the Chairperson—by the Minister, and

(b)  in any other case—by the Chairperson.

(3)  This clause is subject to clause 4.

12 Superannuation and leave—preservation of rights

(1)  In this clause:

eligible member means a member of the Tribunal who, immediately before holding that office, was a public servant or an officer or employee of a public authority declared by an Act or proclamation to be an authority to which this clause applies.

superannuation scheme means a scheme, fund or arrangement under which any superannuation or retirement benefits are provided and which is established by or under an Act.

(2)  An eligible member:

(a)  may continue to contribute to any superannuation scheme to which he or she was a contributor immediately before becoming an eligible member, and

(b)  is entitled to receive any payment, pension or gratuity accrued or accruing under the scheme,

as if he or she had continued to be such a contributor during service as a member of the Tribunal.

(3)  Service by the eligible member as a member of the Tribunal is taken to be service as an officer in his or her previous employment for the purposes of any law under which the member continues to contribute to the scheme or by which an entitlement under the scheme is conferred.

(4)  The eligible member is to be regarded as an officer or employee, and the State is to be regarded as the employer, for the purposes of the scheme.

(5)  This clause ceases to apply to the eligible member if he or she becomes a contributor to another superannuation scheme, but the eligible member is not prevented from receiving a resignation benefit from the first superannuation scheme.

(6)  An eligible member retains any rights to annual leave, extended or long service leave and sick leave accrued or accruing in his or her previous employment.

(7)  An eligible member is not entitled to claim, under both this Act and any other Act, dual benefits of the same kind for the same period of service.

13 Effect of other Acts

(1)  The Public Sector Management Act 1988 (except Part 8) does not apply to the appointment of a member of the Tribunal and the member is not, as a member of the Tribunal, subject to that Act.

(2)  If by or under any Act provision is made:

(a)  requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, or

(b)  prohibiting the person from engaging in employment outside the duties of that office,

the provision does not operate to disqualify the person from holding that office and also the office of a part-time member of the Tribunal or from accepting and retaining any remuneration payable to the person under this Act as a part-time member of the Tribunal.

14 Oaths

The Governor may require oaths to be taken by the Chairperson and any Deputy Chairperson or senior member of the Tribunal.

sch 1: Am 1999 No 94, sec 7 (3) and Sch 5, Part 3; 2000 No 53, Sch 1.7 [2].

Schedule 2 Provisions relating to assessors

(Section 16)

1 Terms of appointment

An assessor is to be engaged on a contract basis in accordance with section 19 (2), and an assessor’s entitlements in respect of remuneration, allowances and other matters are as stipulated in the relevant contract of employment.

2 Lists of persons eligible for appointment as assessors

(1)  The Chairperson may compile a list or lists of persons considered by the Chairperson to be suitable to be appointed as assessors.

(2)  Different lists may be compiled for different types of matters or to take account of any other factors.

(3)  A person may be included in a list under this clause only if the person consents to being included in the list.

(4)  The Chairperson may amend or cancel any list compiled under this clause for any reason that the Chairperson considers appropriate.

(5)  The Chairperson is to review at least annually any list compiled under this clause.

3 Protection and immunities of assessor

An assessor of the Tribunal has, in the performance of functions performed as an assessor, the same protection and immunities as a Judge of the District Court.

4 Effect of certain other Acts

(1)  The provisions of the Public Sector Management Act 1988 do not apply to or in respect of the appointment of an assessor and an assessor is not, as an assessor, subject to that Act.

(2)  If by or under any Act provision is made:

(a)  requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, or

(b)  prohibiting a person from engaging in employment outside the duties of that office,

that provision does not operate to disqualify the person from holding that office and also from being engaged as an assessor or, subject to subclause (3), from accepting and retaining any remuneration payable to the person under this Act as an assessor.

(3)  Subclause (2) does not operate to authorise an officer of a court to accept or retain any remuneration payable to the officer as an assessor.

Schedule 3 Provisions relating to mediators and neutral evaluators

(Section 53)

1 Terms of appointment

A mediator or neutral evaluator is to be engaged on a contract basis in accordance with section 19 (2), and his or her entitlements in respect of remuneration, allowances and other matters are as stipulated in the relevant contract of employment.

2 Lists of persons eligible for appointment as mediators or neutral evaluators

(1)  The Chairperson may compile a list or lists of persons considered by the Chairperson to be suitable to be appointed as mediators or neutral evaluators.

(2)  Different lists may be compiled for different types of matters or to take account of any other factors.

(3)  A person may be included in a list under this clause only if the person consents to being included in the list.

(4)  The Chairperson may amend or cancel any list compiled under this clause for any reason that the Chairperson considers appropriate.

(5)  The Chairperson is to review at least annually any list compiled under this clause.

3 Exoneration from liability for listed mediators and neutral evaluators

No matter or thing done or omitted to be done by a mediator or neutral evaluator subjects the mediator or neutral evaluator to any action, liability, claim or demand if:

(a)  the matter or thing was done or omitted in good faith for the purposes of a mediation session or neutral evaluation session under this Act, and

(b)  when the subject-matter of the mediation or neutral evaluation was referred for mediation or neutral evaluation, the mediator’s or neutral evaluator’s name was included in a list compiled under this Schedule.

4 Effect of certain other Acts

(1)  The provisions of the Public Sector Management Act 1988 do not apply to or in respect of the appointment of a mediator or neutral evaluator and a mediator or neutral evaluator is not, as a mediator or neutral evaluator, subject to that Act.

(2)  If by or under any Act provision is made:

(a)  requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, or

(b)  prohibiting a person from engaging in employment outside the duties of that office,

that provision does not operate to disqualify the person from holding that office and also from being engaged under this Act as a mediator or neutral evaluator or, subject to subclause (3), from accepting and retaining any remuneration payable to the person under this Act as a mediator or neutral evaluator so engaged.

(3)  Subclause (2) does not operate to authorise an officer of a court to accept or retain any remuneration payable to the officer as a mediator or neutral evaluator.

Schedule 4 (Repealed)

sch 4: Am 1998 No 169, Sch 2.2; 1999 No 31, Sch 1.13 [3] [4]. Rep 2001 No 56, Sch 4.

Schedule 5 Savings, transitional and other provisions

(Section 81)

Part 1 General

1 Regulations

(1)  The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act.

(2)  Any such provision may, if the regulations so provide, take effect from the date of assent to this Act or a later date.

(3)  To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:

(a)  to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

(b)  to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

Part 2 Provisions consequent on enactment of this Act

2 Definitions

In this Part:

former bodies means the following:

(a)  the Commercial Tribunal constituted under the Commercial Tribunal Act 1984,

(b)  a disputes committee constituted under section 34 of the Motor Dealers Act 1974,

(c)  the Motor Vehicle Repairs Disputes Committee constituted under the Motor Vehicle Repairs Act 1980.

3 Commercial Tribunal

(1)  On and from 1 March 1999:

(a)  no application may be made to bring any matter before a former body, and

(b)  a former body continues to exist, and any person holding office as a member of the body concerned immediately before that date continues to hold office as such, only for the purpose of the exercise by the body concerned of its functions under clause 5.

(2)  A former body is abolished:

(a)  when the last of its members ceases, in accordance with a notice under clause 4, to hold office, or

(b)  on 1 November 1999,

whichever is earlier.

4 Members of former bodies

(1)  On a date on which notice is served on a member of a former body by the Director-General, the member ceases to hold office as a member of that body.

(2)  A member served with such notice is not entitled to any compensation by reason of ceasing to hold office as a member of the body concerned, but is eligible (if otherwise qualified) to be appointed as a member of the Fair Trading Tribunal.

4A Appeals concerning BSC insurance decisions

(1)  The Tribunal has the jurisdiction that the Commercial Tribunal constituted under the Commercial Tribunal Act 1984 had pursuant to clause 37 of Schedule 4 to the Home Building Act 1989 immediately before 1 March 1999 in respect of decisions made (before or after that date) in relation to claims under BSC insurance within the meaning of that clause.

(2)  This clause is subject to clauses 5 and 5A.

(3)  The exercise, or purported exercise, on or after 1 March 1999 and before the commencement of this clause, by the Tribunal of the jurisdiction conferred by this clause is validated and taken, at the time it was exercised, or purported to be exercised, and at all times thereafter, to have been validly exercised.

5 Pending proceedings

(1)  Proceedings before a former body that:

(a)  were instituted before 1 March 1999, and

(b)  have not been finally determined by the former body before that date,

may be continued and determined as if this Act had not been enacted, and for that purpose the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act not been enacted continue to apply.

(1A)  Subclause (1) ceases to have effect on 1 November 1999.

(2)  An order made under another Act by a former body, being an order:

(a)  having effect immediately before 1 March 1999, or

(b)  made after that date in order to determine proceedings under this clause,

is taken to be an order made by the Tribunal under the corresponding provision of this Act and may be enforced accordingly.

5A Pending proceedings after 1 November 1999

(1)  If proceedings were instituted before 1 March 1999 but had not commenced to be heard by a former body before 1 November 1999, the proceedings are taken to have been duly instituted in the Tribunal (as constituted, or reconstituted, in accordance with section 13 of this Act).

(2)  If a former body had commenced to hear (but had not finally determined) a matter before 1 November 1999, the Tribunal (as constituted, or reconstituted, in accordance with section 13 of this Act) is to continue to hear and determine the matter.

(3)  For the purposes of subclauses (1) and (2):

(a)  the Tribunal has and may exercise all the functions that the former body had immediately before its abolition, and

(b)  the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act not been enacted continue to apply.

(4)  For the purposes of proceedings heard under subclause (2), the Tribunal may have regard to any record of the proceedings before the relevant former body, including a record of any evidence taken in the proceedings.

6 References to former bodies

A reference in another Act, in an instrument made under an Act or in any other document to any of the former bodies is to be read as a reference to the Fair Trading Tribunal.

7 Transfer of jurisdiction to Administrative Decisions Tribunal

On and from the commencement of section 11 of the Administrative Decisions Tribunal Act 1997, the jurisdiction of the Tribunal is vested in the Administrative Decisions Tribunal.

sch 5: Am 1999 No 31, Sch 1.13 [5]–[7]; 1999 No 85, Sch 1.12 [1]–[4].