As against the second respondent Telecommunications Industry Ombudsman Limited, the proceeding is struck out for want of jurisdiction.

The principal registrar is directed to fix the proceeding for hearing before any Member of the Tribunal and to notify the parties of the date and time fixed.

The principal registrar is directed to send a notice of the hearing to Vodafone Australia Limited.

1 On 9 February 2006 I presided at a jurisdictional hearing, held for the purpose of investigating whether the Tribunal had jurisdiction to hear and determine this proceeding as against the second respondent, Telecommunications Industry Ombudsman Limited ("TIO"). In the course of the hearing TIO applied orally for an order striking out the proceeding, as against it, for want of jurisdiction.

2 The Tribunal's register at the moment records two other respondents. The first respondent is Vodafone Pty Ltd. The other, named in the register as the third respondent, is Vodafone Australia Limited. There is doubt about whether Vodafone Australia Limited is properly a respondent. I shall refer below to the reasons for there being that doubt. What is clear, however, is that the applicant Mr David wishes Vodafone Australia Limited to be a respondent.

3 At the hearing on 9 February 2006 Mr David appeared in person. Mr James Hanna represented the two Vodafone companies. Mr Philip Carruthers represented TIO. Mr David handed to me during the hearing a bound folder containing two affidavits by him dated 8 and 7 February 2006 respectively and numerous exhibits. The earlier affidavit included the history of his dispute with the other parties, from his point of view, and argument as to why the Tribunal had jurisdiction. No copy of this folder had been given to TIO before the hearing, but Mr David gave Mr Carruthers a copy during the hearing. I stood the matter down briefly so that Mr Carruthers could take advice as to whether he should ask for an adjournment so that he could consider the material in the folder and make submissions in reply. When the hearing resumed he told me that he did not wish to apply for an adjournment but was content for the hearing to conclude on that day. I reserved my decision.

4 The facts that I set out below are drawn from statements made and information contained in Mr David's written application to the Tribunal, in the affidavits and exhibits, and in the memorandum and articles of association of TIO. For the purpose only of deciding the issue of jurisdiction, and for no other purpose, I shall assume those statements by Mr David to be true.

5 In November 2001 Mr David submitted a written application to Vodafone Pty Ltd for connection to the Vodafone mobile telephone network. The application was accepted and Mr David used the network. Vodafone Pty Ltd sent him periodic bills for the use of the network and for mobile telephone calls.

6 One of the bills included charges for mobile telephone calls made in the early evening of 13 November 2004. Mr David did not make those calls. Because the battery in the telephone was flat, nobody could have used it to make those calls. Vodafone Pty Ltd maintained that the calls were made on that telephone. He asked Vodafone Pty Ltd to remove the charges from his bill. It refused. Mr David made a complaint to TIO. Before TIO had completed an investigation of the complaint, Vodafone Pty Ltd, while disputing Mr David's allegations, decided to waive the disputed charges. It made credit entries on its statements of account to him. Mr David was not satisfied. He demanded that Vodafone Pty Ltd issue fresh invoices which contained none of the disputed charges. It declined to do so. Mr David renewed his complaint to TIO. The response from TIO was that it had determined that Mr David had been billed correctly and that the offer to waive the charges was a reasonable outcome, and that it had closed its file.

7 In his application to the Tribunal Mr David has sought an order that Vodafone issue fresh invoices that omit all references to the disputed charges. He has alleged that TIO did not investigate his complaint properly and made incorrect statements in its correspondence with him. He has claimed "exemplary damages", for the reason, so far as I can tell, that he alleges that the other parties have either permitted or covered up an illegal use of his mobile telephone.

8 Vodafone Pty Ltd (ACN 062 954 554), the first respondent, was incorporated on 23 December 1993 under the name Vodafone No. 2 Pty Ltd. It changed its name to Vodafone Pty Ltd on 23 March 1998. It is the company which had a contractual relationship with Mr David. It rendered the bills and the statements of account. It made the credit entries in the statements of account. It refused to issue the fresh invoices.

9 The other company, with ACN 056 161 043 and now called Vodafone Australia Limited, was incorporated on 18 May 1992 under the name Arena GSM Pty Limited. On 24 March 1993 it changed its name, confusingly, to Vodafone Pty Ltd. It continued to have that name until 4 March 1998 when it became Vodafone Network Pty Limited. After three more changes of name in the meantime, it finally became Vodafone Australia Limited on 6 August 2002.

10 At all material times, the company which is now called Vodafone Australia Limited has held a carrier licence under the Telecommunications Act 1997 (Commonwealth). It has also been, at all material times, a member of Telecommunications Industry Ombudsman scheme. When the scheme commenced, in 1993, the company's name was still Vodafone Pty Ltd.

11 The company which is now called Vodafone Pty Ltd is not a member of the Telecommunications Industry Ombudsman scheme.

The Telecommunications Industry Ombudsman Scheme

12 TIO is a company limited by guarantee. Its memorandum of association, and its articles of associations, are each dated 10 June 1993. As I have said, Vodafone Australia Limited (then called Vodafone Pty Ltd) was one of the subscribers to the memorandum of association. The others were Optus Networks Pty Ltd, Optus Mobile Pty Ltd and Telstra Corporation Ltd.

13 The objects clause, clause 2, in the memorandum of association describes TIO's objects as the establishment of an Ombudsman to receive complaints, investigate them and facilitate the resolution of them. In full, it reads as follows (TIO being described in the memorandum of association as "TIO Limited"):

The objects of TIO Limited are to establish a telecommunications industry ombudsman scheme and to appoint a Telecommunications Industry Ombudsman with power on behalf of TIO Limited to receive, to investigate and to facilitate the resolution of:

(a)

complaints as to the provision or supply of (or the failure to provide or supply) telecommunications services by a participant in the telecommunications industry ombudsman scheme (whether as a member or otherwise), other than complaints in relation to the general telecommunications policy or commercial practices of such a participant;

(b)

complaints from owners or occupiers of land in respect of which a holder of a general telecommunications licence in force under Part 5 of the Telecommunications Act 1991 (as amended) has exercised its statutory powers as a carrier, other than complaints in relation to the policy or commercial decision of a carrier to exercise its statutory rights as a carrier in relation to that particular land; and

(c)

such other complaints as may be agreement with the complainant, be referred to the Telecommunications Industry Ombudsman by a participant in the telecommunications industry ombudsman scheme."

14 The articles of association of TIO require the board of directors of TIO to appoint an Ombudsman, and require TIO to operate in accordance with and observe the roles, functions, powers and obligations set out in a constitution for the time being in force.

15 A constitution is annexed to the articles of association. It records that the Ombudsman scheme to which the constitution relates was (originally) one into which a mobile carrier licensee was required, under the Telecommunications Act 1991, to enter.

16 The legislation now in force is the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Commonwealth). Part 6 of that Act contains provisions which require carriers and carriage service providers to enter into the Telecommunications Industry Ombudsman scheme operated by TIO. Section 128(4) requires the scheme to provide for the Telecommunications Industry Ombudsman to investigate, make determinations relating to, and give directions relating to, complaints about carriage services by end-users of those services.

17 Clause 3.1 of the constitution sets out the functions of the Ombudsman under the scheme, by setting out, verbatim, the objects of TIO as set out in clause 2 of TIO's memorandum of association.

18 Clause 5 of the constitution sets out the procedures to be followed by the Ombudsman in handling and investigating complaints. Clause 6 requires the Ombudsman to resolve a complaint by making a determination or direction to a participant in the scheme or by dismissing the complaint. Clause 6 goes on to provide that a participant is bound by any decision of the Ombudsman but a complainant, if it does not accept the decision, may pursue a remedy in another forum.

19 The scheme established by the constitution, and administered in obedience to the 1999 Act and to TIO's articles of association, is one for investigation and resolution of complaints. It is apparent that neither TIO nor the Ombudsman appointed by it undertakes any commercial activity. The complaints investigated arise from commercial activity by carriers or service providers who participate in the scheme, but the investigation is not a commercial activity in itself. Moreover, TIO administers the scheme because it has a statutory duty to do so.

The Tribunal's Jurisdiction under the Fair Trading Act

20 Relevantly there are two possible sources of jurisdiction in the Fair Trading Act 1999 for the Tribunal to hear and determine a proceeding like the one commenced by Mr David.

21 The first source is Part 9, which empowers the Tribunal to hear and determine a "consumer and trader dispute", which under section 107 is defined (so far as is relevant to the present case) as a dispute or claim arising between a purchaser of services and a supplier of services in relation to a supply of services.

22 In section 3 of the Act "services" is defined so as to include (emphasis added):

"...any rights..., benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce...".

23 No doubt, in some sense TIO provides benefits or facilities for mobile telephone users who wish to complain about their treatment by a company which is a participant in the Ombudsman scheme, but those benefits or facilities are not "services", as defined, unless they are provided "in trade or commerce", and the Tribunal has no jurisdiction under Part 9 unless the dispute is one between a purchaser and supplier of "services" (i.e. something provided "in trade or commerce").

24 The second source is section 159, which provides that a person who has suffered loss or damage because of a contravention of a provision of the Act may bring a proceeding in the Tribunal against any person involved in the contravention. Although Mr David has not explicitly said that he is relying upon section 159, his allegations that TIO has made incorrect statements in its correspondence to him are capable of amounting to allegations of a contravention of section 9, which prohibits a person from engaging, "in trade or commerce", in conduct that is misleading or deceptive or is likely to mislead or deceive. In order to attract this source of jurisdiction Mr David would have to establish that the incorrect statements were made "in trade or commerce".

25 One section of the Fair Trading Act that Mr David does explicitly allege (in an attachment to his written application) to have been contravened, both by Vodafone Pty Ltd and by TIO, is section 12(n). This section, amongst other things, prohibits a person from making, in trade or commerce, in connection with the supply of services, a representation that is false, misleading or deceptive in any material particular. Again, in order to attract the source of jurisdiction provided by section 159 in respect of a contravention of section 12(n), Mr David would have to establish that the relevant representation was made "in trade or commerce".

26 The High Court in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 had to consider whether conduct complained of as having been misleading or deceptive in contravention of section 52 of the Trade Practices Act 1974 (Commonwealth) - the counterpart of section 9 of the Fair Trading Act - had occurred "in trade or commerce". Four justices of the Court stated (at p.604) that the section was concerned with conduct "in the course of...activities or transactions which, of their nature, bear a trading or commercial character". Only conduct of that kind was conduct that took place "in trade or commerce".

27 The definition of "services" in section 3 of the Fair Trading Act, which has importance for the operation of Part 9, does not focus upon conduct "in trade or commerce". It focuses instead on the provision, granting or conferring, "in trade or commerce", of rights, benefits, privileges or facilities. In Sigma Constructions (Vic) Pty Ltd v Maryvell Investments Pty Ltd [2004] VSCA 242, the Court of Appeal in Victoria considered whether the granting of a licence in respect of real property constituted "services" as defined in the Fair Trading Act so that a dispute about the licence agreement was a "consumer and trader dispute" which the Tribunal had jurisdiction under Part 9 to determine. Batt JA, with whose judgment the other members of the Court agreed, said that the above statement by the High Court "may be taken as a safe guide" and went on to say (at para [22]):

"The provision, etc, of rights, etc, must be "in the course of ...activities or transactions which, of their nature, bear a trading or commercial character..."".

That is the test, therefore, for the application of the expression "in trade or commerce" for the purpose of both sources of jurisdiction for the Tribunal under the Fair Trading Act.

28 From the above references to the objects of TIO and to the constitution under which the Ombudsman operates - in the context of a scheme required by statute - it is apparent that the investigative and decision-making activities of the Ombudsman, and of TIO in turn, are not activities which, of their nature, bear any trading or commercial character. TIO provides a service which is ancillary to trading operations carried on by Vodafone Australia Limited and other participants in the scheme, but it does not carry on any trading operations itself. Moreover it operates the scheme not because of any commercial motive but because it is required by statute to do so. The benefits or facilities that TIO provides to users like Mr David are not provided "in trade or commerce".

29 Accordingly I conclude that the Tribunal has no jurisdiction to hear and determine this proceeding as against TIO.

30 Mr Carruthers put forward other arguments for why the Tribunal had no jurisdiction under Part 9. He submitted that there was no "consumer contract" as defined by Section 3 of the Act and no "consumer dispute" as defined in section 109(4). Indeed there was not; but the definition of "consumer contract" is not relevant to Part 9 and it is not necessary for an applicant who wishes to make a claim under Part 9 to rely on section 109 or to establish that the dispute is a "consumer dispute". Section 109 merely confers additional powers upon the Tribunal in two sub-species of "consumer and trader dispute", one of which is a "consumer dispute".

31 On the face of Mr David's application form, three names appeared as desired respondents: Vodafone Pty Ltd, TIO and Vodafone Australia Limited. A diagonal line was ruled across the name of and details given for Vodafone Australia Limited. A history of dispute attached is the application implied that Mr David wished Vodafone Australia Limited to be a respondent, although the attachment did not seem to make any complaint against Vodafone Australia Limited and did not reveal any good reason why it should be a respondent.

32 The ruling of the diagonal line seems to have created confusion about whether Vodafone Australia Limited is actually a respondent and whether Mr David intended that it should be. Some of the notices and other documents produced by the principal registrar have included its name as a respondent. Others have not. At the hearing before me Mr David complained that his notice of hearing did not have Vodafone Australia Limited as a respondent and asked that it be joined as a respondent if it was not a respondent already.

33 Had I decided that there was jurisdiction to determine a claim against TIO and permitted that claim to proceed, there might have been a useful purpose in having Vodafone Australia Limited as a party to the proceeding. It is a member of TIO and a participant in the scheme. Conceivably a determination against TIO could affect its interests. But now that the claim against TIO has not been permitted to proceed, I must say that at the moment I cannot see any reason why Vodafone Australia Limited should be a party. Mr David has not had any real opportunity to argue why it should be, however.

34 I propose to leave matters as they are, uncertain though the status of Vodafone Australia Limited may be. I propose to direct that it be given a notice of the final hearing. The hearing can then proceed as if it were a party, whether it is or not. I would expect the two Vodafone companies to have common representation at the hearing, so I do not see that there could be any additional cost or inconvenience to the Vodafone companies if the matter is dealt with in that way.

(1)

As against the second respondent Telecommunications Industry Ombudsman Limited, the proceeding is struck out for want of jurisdiction.

(2)

The principal registrar is directed to fix the proceeding for hearing before any Member of the Tribunal and to notify the parties of the date and time fixed.

(3)

The principal registrar is directed to send a notice of hearing to Vodafone Australia Limited.