204 CLR 559
Australian Solar Mesh Sales Pty Ltd Anderson [2000] FCA 864
124 CLR 367
Fencott v Muller [1983] HCA 12
152 CLR 570
Gleeson v Cavers [2021] NSWCATCD 158
LNC Industries Ltd v BMW (Australia) Ltd[1983] HCA 31
151 CLR 575
Macteldir Pty Ltd v Dimovski [2005] FCA 1528
Moorgate Tobacco Ltd v Philip Morris Ltd [1980] HCA 32
Source
Original judgment source is linked above.
Catchwords
204 CLR 559
Australian Solar Mesh Sales Pty Ltd Anderson [2000] FCA 864124 CLR 367
Fencott v Muller [1983] HCA 12152 CLR 570
Gleeson v Cavers [2021] NSWCATCD 158
LNC Industries Ltd v BMW (Australia) Ltd[1983] HCA 31151 CLR 575
Macteldir Pty Ltd v Dimovski [2005] FCA 1528
Moorgate Tobacco Ltd v Philip Morris Ltd [1980] HCA 32148 CLR 457
Pongrass v Small [2021] NSWCATAP 314
Rana v Google Inc [2017] FCAFC Q156
254 FCR 1
Re McJannet
Ex parte Australian Workers' Union of Employees (Qld) [1997] HCA 40
189 CLR 654
Smith v Smith [1986] HCA 36
Judgment (14 paragraphs)
[1]
Solicitors:
Applicant - M Swivel, Barefoot Law
Respondent - Hall & Willcox
File Number(s): COM 23/31215
Publication restriction: Nil
[2]
Outline
The applicant, who resides in an aged care facility, commenced proceedings against the operator of that facility, alleging breaches of the Australian Consumer Law (ACL) in relation to the proposed closure of that facility.
Following cross-examination of the applicant, when it became clear the Tribunal may not have jurisdiction to consider this application, after hearing submissions from the parties, the Tribunal determined that it did not have jurisdiction.
As it was considered that written reasons should be provided, the outcome was indicated but the decision was formally reserved so reasons could be prepared for the benefit of the parties and any future proceedings involving this issue.
[3]
Procedural history
The application was lodged on 7 July 2023. Later that day a Principal Member made orders for the provision of Points of Claim and Points of Defence and a directions hearing was then held on 17 July 2023.
On 17 July 2023 the Tribunal notified the parties of a 16 August 2023 hearing date. Although that hearing had to be adjourned, the Tribunal was able to minimise the delay and the hearing resumed on 1 September 2023.
[4]
Hearing
The documents upon which the parties relied were identified and there was cross-examination and re-examination of the applicant which was followed by submissions on the question of whether the Tribunal had jurisdiction.
[5]
Documents
The following documents were either admitted as evidence or marked for identification:
Exhibit A Applicant's documents (pages 1-305)
Exhibit B Respondent's documents (pages 1-154)
Exhibit 1 7 August 2023 letter from Minister for Lands and Property
Exhibit 2 Bryon Shire Council papers (pages 13-14 of 216 relevant)
MFI 1 Applicant's submissions in reply, dated 9 August 2023
MFI 2 Medical certificate in relation to the adjourned hearing
MFI 3 Respondent's documents (cases and extracts of statutes)
[6]
Context
While it is neither necessary nor appropriate to make findings of fact, it is desirable to set out sufficient details for the context in which this question of law arises to be clear.
For many years, aged care facilities were described by reference to three categories: self-care, hostel, or nursing home accommodation. Self-care accommodation resembled living in a strata-titled unit, hostel accommodation resembled a motel, and nursing home accommodation resembled a hospital. NSW legislation, the Retirement Villages Act 1999 (NSW) (the RVA), only applies to self-care accommodation. Hostels and nursing homes and hostels are governed by Commonwealth legislation, namely the Aged Care Act 1997 (Cth) (the ACA).
Feros Village Byron Bay (the Village) opened in 1990 and, at that time, was a low care hostel. On 16 October 2017 the applicant and the respondent entered into an agreement in relation to his care and accommodation that was funded by the Commonwealth government under the ACA. For almost six years he has lived in the Village which, as at 28 February 2023, housed 36 residents.
In October 2022 an accreditation audit by the Aged Care Quality and Safety Commission (the ACQSC) determined there were multiple areas of non-compliance which resulted in the Village being conditionally re-accredited until 10 May 2024.
The person who chairs the respondent's board wrote to its members on 14 February 2023. A meeting of Village residents was held on 15 February 2023.
On 27 February 2023 notice was given of a meeting to be held the following day at which it was announced that (1) a decision had been made to close the Village and (2) the respondent would assist each resident to final alternative accommodation.
The respondent's explanation for that decision was as follows (R21 at [21]-[22]):
The reason for the Decision was because the facility was built 33 years ago as a low care hostel, and it was unable to meet the higher government requirements for residential aged care in a safe and sustainable way.
The Decision was made in the context of:
a. the ACQSC Performance Report;
b. changes in regulatory requirements, including the removal of the distinction between low care and high care in permanent residential aged care (from 1 July 2014) and revised aged care quality standards (from about 2019);
c. the age and obsolescence of the Village and it no longer being fit for purpose or able to satisfactorily meet the obligations under the Aged Care Act and related statutory instruments.
d. the need for significant works to the Village building (including refurbishment and extensions), which would trigger the need for the Village to meet a Class 9c building classification under the National Construction Code (compared to the current Class 3 classification) and compliance with bushfire Asset Protection restrictions.
[7]
Applicant's written submissions
Submissions as to jurisdiction were included in section 3 of the Amended Points of Claim (A302).
It was first suggested that the effect of amendments to the application was that there was no longer any "jurisdictional controversy" since the applicant only relied on the Fair Trading Act 1987 (NSW) (the FTA), which incorporates the ACL, and did not rely on any other statute.
[8]
Respondent's written submissions
The first point that was made was that the agreement between the applicant and the respondent that was the subject of these proceedings owed its existence to a federal law with the contended result that a claim in relation to that agreement arises under federal law. Secondly, it was said that the respondent's defence relied on the ACA and the User Rights Principles which either expressly or impliedly authorised the contractual provisions impugned by the applicant. It was also contended that the claim (as originally framed) went beyond a consumer claim, which does fall within the FTA, in that the applicant was seeking injunctive relief that was beyond the jurisdiction of the Tribunal.
[9]
Written submissions in reply
In response, it was suggested that the application is based on the contract between the parties and State law and that any defence can be made by reference to that contract and State law, namely the FTA and the ACL. The applicant's case was put on the basis that the subject contract reflects Federal law but does not rely on that legislation for its validity or enforceability. It was contended that: The legal issues in dispute must be federal in nature for example, matters concerning immigration or taxation or another matter as dealt with in federal legislation alone".
[10]
Oral submissions
For the respondent, reference was made to (1) the respondent's 10 May 2023 letter (A64, ie page 64 in Exhibit A), (2) provisions in the applicant's agreement with the respondent (R30), and (3) to the User Rights Principles 2014 made under the ACA.
It was submitted that the applicant was asserting that provisions in the applicant's agreement were unfair and void, being provisions owing their existence to Commonwealth legislation. Further, that the applicant resided in a "a Funded Place" (R34) which was defined by reference to Chapter 3 in the ACA and that the Australian Government determined the fees payable. The crux of the respondent's submission was that the terms impugned by the applicant owed their existence to a Commonwealth Act and that these proceedings require the determination of issues which arise under Federal law. Reference was made to the decision in Australian Solar Mesh Sales Pty Ltd v Anderson [2000] FCA 864; 101 FCR 1 (Solar Mesh).
It was also submitted that if the ACL, which is made part of the law of New South Wales by s 28 of the Fair Trading Act 1987 (NSW) operated to render void a term required by a Commonwealth Act then s 109 of the Constitution applied to render the ACL invalid to the extent of any inconsistency. Support for that was said to be found in s 31 of the Interpretation Act 1987 (NSW). In short, it was contended that the Tribunal had no jurisdiction, as established by the High Court in Burns v Corbett [2018] HCA 15 (Burns).
Oral submissions for the applicant began with a contention that the application did not involve the ACA but was brought under the Fair Trading Act, which incorporates the ACL. The applicant's case was that the provisions of the ACA operate "in parallel" with the ACL and that the Tribunal has jurisdiction because this is a claim based on the contract between the parties. Further, that the subject contract referred to the ACA and reflected the ACA but there was no pro forma contract that the parties were required to use, and that the decision in Solar Mesh was distinguishable. Put simply, the applicant's case was that "the contract stands on its own feet".
In oral submissions in reply, it was contended that the question was not whether the applicant's case could be formulated by reference to State law, but whether the matter involved Federal jurisdiction. That was said to arise from the facts such that, once Federal jurisdiction was attracted, there could not be concurrent exercise of State and Federal jurisdiction.
[11]
Relevant law
It is clear the Tribunal does have jurisdiction to determine whether it has jurisdiction: Citta v Hobart [2022] HCA 16 (Citta) at [23]; Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213; Dyldham Developments Pty Ltd v The Owners SP 85305 [2020] NSWCA 327.
It is also clear that the Tribunal does not have jurisdiction to determine a federal matter because a State parliament cannot confer on a State tribunal, which is not a court of a State, judicial power in relation to any matter covered by s 75 or s 76 of the Constitution: Burns, confirmed in Citta at [1].
Despite that clarity, it is still necessary to determine whether this case involves a federal matter. As to that question, the following non-exhaustive set of principles (Principles) was set out in Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275 at [22]:
(1) Not every proceeding that is touched by a Commonwealth law is a federal matter. For instance, a matter that requires only the interpretation of a federal law will not render the proceedings a federal matter. Similarly, it is not sufficient if the federal statute arises in an incidental fashion: Felton v Mulligan (1971) 124 CLR 367 at 408 (Walsh J); [1971] HCA 39; Moorgate Tobacco Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 476 (Stephen, Mason, Aickin and Wilson JJ); [1980] HCA 32; LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); [1983] HCA 31.
(2) The question of whether a federal matter arises is one of substance and not form: Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 101 FCR 1; [2000] FCA 864 at [16] (Burchett J, Wilcox and Tamberlin JJ agreeing); Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 473 (Barwick CJ); [1981] HCA 7.
(3) To identify the "matter" it is necessary to identify the justiciable controversy: Smith v Smith (1986) 161 CLR 217 at 237 (per curiam); [1968] HCA 36; Re Wakim (1999) 198 CLR 511; [1999] HCA 27 at [139] (Gummow and Hayne JJ).
(4) It is sufficient if the matter could be decided by reference to the federal law, it is not necessary that the matter be disposed of in that way: Felton v Mulligan at 374 (Barwick CJ); Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156 at [21] (per curiam).
(5) A federal issue may arise even where the parties have not directly asserted it, but where the court must nevertheless examine whether a right or duty under federal law exists: Moorgate at 476 (Stephen, Mason, Aickin and Wilson JJ).
(6) A federal matter will arise whenever the right, duty or enforcement owes its existence to federal law: LNC at 581; Re McJannet; Ex parte Australian Workers' Union of Employees (Qld) (1997) 189 CLR 654 at 656-7 (per curiam); [1997] HCA 40.
(7) It is not necessary for the form of relief sought to depend on federal law; it is sufficient if the source of the right or subject matter of the claim exists as a result of federal law: LNC at 581-2 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).
(8) A federal matter will also arise where the source of a defence is a federal law: Felton v Mulligan at 375 (Barwick CJ) and 408 (Walsh J); LNC at 581 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).
(9) Unless a federal issue is colourable, there is a federal "matter": ie: the whole of the proceedings is a federal matter requiring the exercise of federal jurisdiction: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd at 499 (Gibbs J); Felton v Mulligan at 373 (Barwick CJ) and 408 (Walsh J); Fencott v Muller (1983) 152 CLR 570 at 606 (Mason, Murphy, Brennan and Deane JJ); [1983] HCA 12; Smith at 237 (per curiam); Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1 at [7] (Gleeson CJ, Gaudron and Gummow JJ); Rana v Google at [20].
[12]
Consideration
Is it commonly said that s 28 of the FTA operates to make the provisions of the ACL part of the law of New South Wales and that the Tribunal can consider an ACL claim. However, setting out s 28 reveals that proposition is too broad:
(1) The Australian Consumer Law text, as in force from time to time:
(a) applies as a law of this jurisdiction, and
(b) as so applying may be referred to as the Australian Consumer Law (NSW), and
(c) as so applying is a part of this Act.
(2) This section has effect subject to sections 29, 30 and 31.
For example, s 30 contains the following provisions:
(2) For the purposes of the application of the Australian Consumer Law (NSW), court means, unless otherwise expressly provided by this Act:
(a) the Local Court, or
(b) the District Court, or
(c) the Supreme Court.
(3) In the following provisions of the Australian Consumer Law (NSW), court means the Supreme Court:
(a) section 218,
(b) Division 2 of Part 5-2,
(c) Division 4 of Part 5-2,
(d) sections 246, 247, 248 and 250.
(4) In Part 2-3 of the Australian Consumer Law (NSW), court includes the Tribunal.
(5) Subsections (2)-(4) are subject to any jurisdictional limits on the court concerned or the Tribunal imposed by any other Act.
Since Division 2 of Part 5-2 in the ACL deals with injunctions, it is clear the Tribunal does not have any jurisdiction in relation to injunctions based on the provisions of the ACL. Further, it is clear, from decisions such as Pongrass v Small [2021] NSWCATAP 314 at [81], that the Tribunal does not have any power to grant equitable relief, such as an injunction or a declaration.
As the applicant is now only claiming damages, the relief sought could be granted by the Tribunal if this application does not involve a federal matter. However, the Tribunal considers that this application involves a federal matter for the three reasons set out below.
First, noting that the applicant is a "care recipient" and the respondent is an "approved provider", s 56-1 of the ACA, so far as is presently relevant, provides as follows:
56-1 Responsibilities of approved providers - residential care
The responsibilities of an approved provider in relation to a care recipient to whom the approved provider provides, or is to provide, residential care are as follows:
…
(f) to provide security of tenure for the care recipient's place in the service as is specified in the User Rights Principles;
…
(h) to offer to enter into a resident agreement with the care recipient, and, if the care recipient wishes, to enter into such an agreement; …
[13]
Order
For the reasons set out above, the following order is made:
1. The Tribunal declines to deal with this application as it has no jurisdiction to determine these proceedings.
2. Any application for costs, supported by submissions (not exceeding five pages in length) and evidence, is to be filed and served within 14 days of the date of these orders.
3. Any submissions (not exceeding five pages in length) and evidence in response are to be filed and served with the following 14 days.
4. Any submissions in reply (not exceeding two pages in length) and evidence in reply are to be filed and served within the following 7 days.
5. Each party's submissions should indicate whether they agree that costs should be determined on the papers, ie without the need for a further hearing.
[14]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 09 October 2023
Parties
Applicant/Plaintiff:
Eddings
Respondent/Defendant:
Feros Care Limited
Legislation Cited (8)
Australian Consumer Law Civil and Administrative Tribunal Act 2013(NSW)
There was evidence to suggest the respondent took steps to achieve a transition of residents from the Village to alternative accommodation and sent letters to residents dated 28 February 2023, 3 March 2023, 24 March 2023, 21 April 2023, an email dated 8 May 2023, and a letter dated 10 May 2023.
A 10 May 2023 letter from the applicant's solicitor to the respondent included the following paragraph (emphasis original):
As you know, an aged care provided must not take action to make a resident leave or to imply that a resident must leave a facility before suitable and affordable alternative accommodation is obtained - based on clause 11.2 of the residents (sic) agreements and the counterpart provisions of Aged Care Act 1997 (Cth). I put you on notice that my clients consider the letter itself and the ongoing conduct of [the respondent] to be matters that place [the respondent] in breach of the residential agreements and the statute.
It is sufficient to note that the 18 May 2023 letter sent in reply by the respondent's then solicitors maintained the respondent had complied with the User Rights Principles and denied any breach of the ACA.
A 9 June 2023 letter from the ACQSC indicated a proposed meeting at the Village at 11am on 13 June 2023. A 21 June 2023 letter from the director of the ACQSC's Compliance Management Group referred to a visit on 13 and 14 June 2023 and included the following sentence:
Following our discussions, I would like to offer you the opportunity for a one-on-one virtual session with myself to discuss your wellbeing and any plans regarding the closure.
What appears in [10]-[18] above has been prepared from the respondent's evidence because (1) it is the respondent's conduct which is being challenged in these proceedings and (2) it is largely based on documents, the contents of which cannot be disputed.
The applicant lodged Points of Claim electronically on 12 July 2023, in response to matters raised in the Tribunal's letter dated 7 July 2023. It was first asserted that, if the applicant's agreement was found to be validly terminated then the Residential Tenancies Act 2010 (NSW) applied. Secondly, as to the ACA, it was suggested that both the application and any defence depended only on the terms of the applicant's agreement with the respondent.
Amended Points of Claim (A300) sought an order for the payment of $7,640 based on alleged breaches of the ss 18, 20-22 and 23-27 of the ACL. Those breaches were said to be (1) misleading and deceptive conduct, (2) unconscionable conduct, and (3) unfair contract terms.
In the Amended Points of Claim it was indicated that, since the applicant's agreement had not been terminated, neither the allegation of invalid termination nor the argument based on the Residential Tenancies Act were maintained. Further, although the Amended Points of Claim sought interim orders, at the hearing it was indicated they were not pursued.
To those Principles must be added what was said by Allsop J (as he then was) in Macteldir Pty Ltd v Dimovski [2005] FCA 1528 (Macteldir) at [36]:
It is a fundamental tenet of federal jurisdiction that once a federal claim is made, even a bad one, and even one that is abandoned, or struck out, the whole matter in which that claim is made is, and remains, federal jurisdiction.
After the decision of the Court of Appeal in Attorney General for New South Wales v Gatsby [2018] NSWCA 254, which declared that the Tribunal is not a "court of a State", Part 3A of the Civil and Administrative Tribunal Act 2013 (the CATA) was amended.
The question of what orders might be made when it is determined that an application involves a federal matter was considered in Gleeson v Cavers [2021] NSWCATCD 158 (Gleeson) which quoted and followed what was said in Dalton v Qantas Airways Ltd [2020] NSWCATCD 2 at [36]:
Having determined the Tribunal did not have jurisdiction to deal with the application, the Court in Gatsby made an order remitting the proceedings to the Tribunal "to be dealt with in accordance with Part 3A of the Civil and Administrative Tribunal Act 2013 (NSW)". I infer from this order that, while unable to determine the dispute in Gatsby, the Tribunal did have an administrative role in connection with the application made to the Tribunal in consequence of the provisions of Part 3A. Such administrative action might include:
declining to deal with the proceedings because the Tribunal lacks jurisdiction;
making an administrative decision to dismiss the application because of the lack of jurisdiction;
providing relevant documents to a court for the purpose of determining any leave application under s 34B(3) of the NCAT Act or for the purpose of a court determining an application under s 34C in consequence of the grant of leave; or
complying with any orders under s 34C(1)(b) of the NCAT Act a court which might make "in relation to the Tribunal" to "facilitate its determination of the application that might be made.
In Gleeson orders were made in accordance with the first and third of those four options.
Further, s 59-1 of the ACA not only sets requirements but also require compliance with the User Rights Principles:
59-1 Requirements for resident agreements
(1) A resident agreement entered into between a care recipient and an approved provider must specify:
…
(e) the circumstances in which the care recipient may be asked to depart from the residential care service; and
(f) the assistance that the approved service provider will provide to the care recipient to obtain alternative accommodation if the care recipient is asked to depart from the residential care service; …
(2) In addition, a resident agreement must comply with any requirements specified in the User Rights Principles relating to:
…
(c) any provisions that the agreement must contain; or
(d) any other matters with which the agreement must deal.
The User Rights Principles contains the following provisions:
5 Purpose of this Part
(1) For section 56-1 of the Act, this Part specifies responsibilities or an approved provider of a residential care service in relation to care recipients to whom the provider provides, or is to provide, residential care, including in relation to the following:
(a) the security of tenure that the provider must provide to care recipients for their place in the service …
(2) This Part also specifies, for subsection 59(2) of the Act, requirements that a resident agreement entered into between a care recipient and an approved provider must comply with.
6 Security of tenure - when approved provider may ask or require care recipient to leave residential car service
…
(2) The approved provider may ask the care recipient to leave the residential care service only if:
(a) the residential care service is closing; …
(3) The approved provider must not take action to make the care recipient leave the residential care service, or imply that the care recipient must leave the service, before suitable alternative accommodation is available that:
(a) meets the care recipient's long-term needs as assessed in accordance with subsection (4); and
(b) is affordable by the care recipient.
(4) For paragraphs (2)(b) and (3)(a), the long-term needs of the care recipient must be assessed by:
(a) an aged care assessment team; or
(b) at least 2 medical or other health practitioners who meet the following criteria:
(i) one m8st be independent of the approved provider and the residential care service, and must be chosen by the care recipient;
(ii) both must be competent to assess the aged care needs of the care recipient.
7 Security of tenure - notice requirements
(1) If an approved provider of a residential care service decides to ask a care recipient to leave the service, the approved provider must give the care recipient written notice stating the following information:
(a) the decision;
(b) the reasons for the decision;
(c) when the care recipient is to leave;
(d) the care recipient's rights in relation to being asked to leave the residential care service, including the right to access:
(i) the approved provider's complaints resolution mechanism; and
(ii) any other mechanisms available to address complaints; and
(iii) people acting for bodies that have paid advocacy grants.
(2) The approved provider must give the notice to the car recipient at least 14 days before the care recipient is to leave.
Since the term of the applicant's agreement and his accommodation and care are the subject of Commonwealth statutory provisions, and since the applicant's claims under the ACL include an allegation that the terms of his agreement with the respondent are unfair, Principles (4), (5), (6) and (7), set out at [34] above, apply in this instance. In other words: this application could be decided by reference to federal law (namely the ACA and the User Rights Principles), the Tribunal would need to examine the applicant's rights under those laws, the rights in question owe their existence to federal law, and the subject matter of the applicant's claim exists due to federal law.
Secondly, since the respondent relies on the provisions of the ACA and the User Rights Principles as a basis for its defence of this application, Principle (8) also applies.
The fact that the applicant frames his claim by reference to State law is no answer and the submission that a federal matter is confined to matters such as immigration or taxation that are dealt with sole by federal legislation is rejected, being a proposition that is not only unsupported by any authoritative decision but also is contradicted by the decisions referred to in [34] above.
It is noted that, in a letter dated 10 May 2023 (quoted at [16] above) it was alleged that the respondent had breached the ACA.
That could be said to suggest that the applicant's case had been reframed to seek to avoid the question of whether the Tribunal had jurisdiction and that what was said in Macteldir (quoted at [35] above) applied, but it is not necessary to decide that issue.
In this case, the Tribunal commenced to hear the application to obtain a clear picture of whether this case should be considered a federal matter. That became clear by the end of the cross-examination of the applicant when the respondent's letter dated 10 May 2023 (A64) was raised, a letter which included a paragraph which read:
Residents is residential aged care facilities have specific security of tenure rights pursuant to the Aged Care Act 1997 (Cth). Included in these rights is the requirement that [the respondent] must assist you to identify and move to suitable alternative accommodation that meets your long-term care needs prior to the closure of [the Village].
At the conclusion of the evidence of the applicant, when asked if the applicant's case included that the respondent had failed to comply with the requirements of the ACA, the applicant's solicitor respondent that it was and it became clear during oral submissions on the question of jurisdiction that at least part of the respondent's defence was based on the provisions of the ACA and the User Rights Principles.
It is noted that the applicant's case is that the applicant (1) engaged is misleading and deceptive conduct, engaged in unconscionable conduct, and (3) imposed unfair contract terms. Each of those claims is based on provisions in the ACL which, although included in a Commonwealth statute, namely Schedule 2 to the Competition and Consumer Act 2010 (Cth), forms part of the law of NSW.
That clarity can also be seen from a consideration of each of the three foundations of the applicant's case, namely (1) misleading and deceptive conduct, (2) unconscionable conduct, and (3) unfair terms in the agreement between the applicant and the respondent.
In particularising the claim for misleading and deceptive conduct in the Amended Points of Claim, reference was made to "various compliance issues". It may therefore be expected that the respondent would defend any such claim by reference to provisions in the ACA and/or the User Rights Principles.
The claim that there was unconscionable conduct on the part of the respondent would necessarily involve a consideration of values and norms and industry standards: ASIC v Korbelt [2019] HCA 18; Paciocco v Australia and New Zealand Banking Group Ltd [2016] HCA 28. That exercise would inevitably require a consideration of the applicable provisions of the ACA and the User Rights Principles.
The claim that the agreement between the applicant and the respondent is a contract which contains unfair terms would bring into question terms that are either (1) required by, (2) authorised by or (3) comply with the ACA and/or User Rights Principles.
Thus, a consideration of the claims made by the applicant serves to confirm the first and second reasons, set out above.
Thirdly, even if the Tribunal proceeded to hear this application and came to the view that there had been a breach of the ACL, being part of the law of NSW, then any finding, such as that there was an unfair term of the agreement between the applicant and the respondent, may well amount to contradicting a provision in the ACA or the User Rights Principles which would create an inconsistency between State and Federal law with the result that s 109 of the Constitution would operate to render the State law invalid to the extent of any inconsistency.
Accordingly, the decision of the Tribunal is that it does not have jurisdiction to determine this application.
It does not appear to the Tribunal that there are special circumstances warranting an order for costs in this case. However, no submissions as to costs were made during the hearing. The practical course is to make an order for each party to bear their own costs but provide a facility for submissions to be lodged if an order for costs is sought. Any such submissions should address the question of whether an order should be made under s 50(2) of the CATA.