Jonsson v Arkway Pty Ltd & Anor [2005] NSWSC 304

Jonsson v Arkway Pty Ltd & Anor [2005] NSWSC 304

Because the rehearing would involve consideration of further evidence by a Tribunal Member who had already made unfavourable credibility findings about the plaintiff and favourable credibility findings about the defendant's witness, a fair-minded person would entertain a reasonable apprehension that the Tribunal Member might not bring an impartial and unprejudiced mind to the rehearing. The Tribunal Member also misdirected himself as to the nature of a rehearing, so the appeal was with respect to a matter of law and his discretion miscarried.

Jurisdiction
Australia
Judgment Date
08 April 2005
Procedural Posture
Appeal From Decision of the Consumer, Trader and Tenancy Tribunal of NSW / Supreme Court Decision on Appeal
Outcome
Appeal upheld; decision of Senior Tribunal Member Durie dated 28 September 2004 set aside; matter referred to the Tribunal to be dealt with according to law.
Legal Topics
['appeal From Consumer, Trader and Tenancy Tribunal' 'apprehended Bias' 'disqualification of Tribunal Member' 'rehearing After Remitter' 'consumer Credit Code Jurisdiction']
['administrative Law' 'consumer Credit' 'civil Procedure'] ['appeal From Consumer, Trader and Tenancy Tribunal' 'apprehended Bias' 'disqualification of Tribunal Member' 'rehearing After Remitter' 'consumer Credit Code Jurisdiction']

Case Brief

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Procedural Posture

Appeal From Decision of the Consumer, Trader and Tenancy Tribunal of NSW / Supreme Court Decision on Appeal

Legal Issues

  1. 1 ['Whether the appeal was with respect to a matter of law under s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW).' "Whether Senior Tribunal Member Durie erred in refusing to disqualify himself from the rehearing after making prior credibility findings about the plaintiff and the first defendant's witness." 'Whether a fair-minded person would entertain a reasonable apprehension that the Tribunal Member might not bring an impartial and unprejudiced mind to the rehearing.']

Ratio Decidendi

Because the rehearing would involve consideration of further evidence by a Tribunal Member who had already made unfavourable credibility findings about the plaintiff and favourable credibility findings about the defendant's witness, a fair-minded person would entertain a reasonable apprehension that the Tribunal Member might not bring an impartial and unprejudiced mind to the rehearing. The Tribunal Member also misdirected himself as to the nature of a rehearing, so the appeal was with respect to a matter of law and his discretion miscarried.

Court Disposition

Appeal upheld; decision of Senior Tribunal Member Durie dated 28 September 2004 set aside; matter referred to the Tribunal to be dealt with according to law.

Orders

  • ['The appeal is upheld.' 'The decision of Senior Tribunal Member Durie dated 28 September 2004 is set aside.' 'The matter is referred to the Tribunal to be dealt with according to law.' "The first defendant is to pay the plaintiff's costs as agreed or assessed." "A certificate of indemnity should to be granted to...