New South Wales v Burns [2018] HCA 15
China Shipping (Australia) Agency Co v D J Kelly Pty Ltd [2010] NSWSC 1556
Dalton v Qantas Airways Ltd
Source
Original judgment source is linked above.
Catchwords
CONSUMER CLAIM - shipping contractBurns v GaynorA-G for New South Wales v BurnsNew South Wales v Burns [2018] HCA 15
China Shipping (Australia) Agency Co v D J Kelly Pty Ltd [2010] NSWSC 1556
Dalton v Qantas Airways Ltd
Judgment (6 paragraphs)
[1]
Factual Background
Ibrahim Lemesh wanted to move some of his possessions from Zagreb in Croatia to his home in Canberra. He arranged the transport of those goods by ship to Sydney, via Singapore. They would then be collected from Sydney and trucked to Canberra. This relatively simple project has led to a complicated and unhappy experience for the parties to this appeal.
The end result is that, for the reasons below, the Appeal Panel has decided that the Tribunal did not have jurisdiction to hear the matter. The orders made by the Tribunal will be set aside and in lieu thereof, the order is that proceedings are dismissed for want of jurisdiction.
It is necessary to set out the facts in some detail. The facts are taken from the materials that were put before the Tribunal below.
Mr Lemesh arranged for the transport by ship of his goods to Sydney with a company called Zagreb Speed, in Zagreb, Croatia. His goods were to be shipped CFR. This meant that Zagreb Speed was to organise for the carriage of Mr Lemesh's goods by ship to Sydney and provide him with the relevant documents to obtain his goods from the carrier. Zagreb Speed was to take care of export customs clearance requirements in Croatia, arrange for the issue the bill of lading and contract for the transport of the goods from Croatia to Sydney by ship. Mr Lemesh paid Zagreb Speed the equivalent of AUD $1,365.40.
Globelink International Pty Ltd (Globelink) is the Australian office of Globelink International Limited. Globelink is a freight forwarder and provides a range of freight management services including consolidation services when, like with Mr Lemesh's goods, the cargo to be shipped is less than a container load (LCL). As such, LCL cargo is consolidated with other cargo to fill a shipping container. There may be several consignments of LCL cargo consolidated into one container. When the goods arrive at the destination, the owner of those goods, or their agent, depending on the nature of the contract of carriage, will organise customs clearance and pay relevant fees to enable the goods to be collected or on-shipped to their ultimate destination. Globelink also provides customs services and delivery services if contracted to do so.
The bill of lading in evidence was issued by Globelink Container Lines Limited. It was to be responsible for shipping Mr Lemesh's goods to Sydney, via Singapore. We infer this was arranged by Zagreb Speed as Mr Lemesh's agent as this was one of the services for which it charged Mr Lemesh. The bill of lading notes Mr Lemesh as the shipper and consignee. The bill shows "Globelink International Pty Ltd" in Sydney (the respondent to the appeal) as the delivery agent in Australia. However, that entry on the bill of lading is struck through and there is a handwritten change to the delivery agent so that it reads: "International Delivery Services Pty Ltd". Mr Lemesh confirmed he unilaterally made that change. Globelink was not aware of this change until 5 June 2020 when it was informed of it and provided a copy of the bill of lading by IDS in Sydney.
As noted, Mr Lemesh wanted to get his goods to Canberra. However, he had only contracted with Zagreb Speed to get them to Sydney. On 27 September 2018 he emailed Globelink in Sydney, noting his goods were being shipped CFR from Croatia, and requesting a quote to get customs clearance and to transport those goods from Sydney to Canberra. He followed this up with another email to Globelink in Sydney on 21 October 2018. It is unclear what, if any, response was provided. It is also unclear how Mr Lemesh knew to contact Globelink in Sydney or whether he knew they were otherwise involved in the shipment. We infer that he saw them as being involved as they were named on the bill of lading as the local delivery agent as referred to above.
In any event, Mr Lemesh then contacted International Delivery Service Pty Ltd (IDS) in Sydney for a quote to provide port and other services once the goods arrived and to get his goods from Sydney to Canberra. There followed a series of email exchanges between Mr Lemesh and IDS on 23 October 2018. IDS provided a quote to Mr Lemesh which included "LCL (local) Port Service Charge - AT CO-LOADERS COST". There were other fees such as delivery fees, "P/E (port of entry) Customs Clearance" and the like, also quoted by IDS. Mr Lemesh responded on 24 October querying the $300 quoted for the P/E Customs Clearance Fee but stating the other quoted figures "all are reasonable". Mr Lemesh said that if the customs fee could be reduced, he was happy to proceed with IDS. He did not seek to clarify with IDS what the co-loaders cost for the port service charges would be. Whilst Mr Lemesh now maintains that he had no contractual arrangement with them, Globelink were the co-loaders.
Later on 24 October, IDS responded to Mr Lemesh noting that it was able to bring the P/E Customs Clearance Fee down to $200 + GST. It said that if Mr Lemesh wished to proceed, they would require, amongst other things, the bill of lading and the arrival notice & invoice from co-loader. Mr Lemesh replied that day accepting the quote and saying he would forward the documentation to IDS.
On 5 November 2018, Globelink emailed the arrival notice to Mr Lemesh. That email offered local customs clearing services and gave advice as to what Mr Lemesh should do if he wished to clear his own goods. It noted Globelink would store the goods for 3 days for free once the goods were available for collection. Thereafter there would be charges payable by Mr Lemesh. It noted …"all invoices for landed local charges along with, completion of customs and quarantine must be paid prior to collection". The arrival notice that was attached to the email cross referenced the bill of lading referred to above and indicated that the goods would arrive on 15 November 2018.
On 5 November 2018 Globelink also issued an invoice to Mr Lemesh in the sum of $1,688.17, being $1,534.70 plus GST. That invoice included port service charges of $1,246.72, a delivery fee, infrastructure fee and international terminal fee. Mr Lemesh emailed Ms Cvijanovic of Globelink (whom he had emailed previously when seeking the quote referred to above) on 5 November stating:
Hello Jasmin
Thank you for your email, however, I have proceeded to go with another business not Globelink as their price was lower and they also organised transport from Syd to Can for me, which Globelink couldn't. As such, could you please void this invoice.
Globelink did not rescind the invoice. Mr Lemesh says that he then contacted IDS in Sydney and complained about the Globelink charges. He was told that he would have to pay the Globelink invoice if he wanted his goods released. He agreed to this course so that he could get his goods, but under protest. There is no evidence that the IDS person to whom Mr Lemesh spoke told him that the Globelink charges were excessive or otherwise should not have been levied.
On 9 November 2018, IDS paid Globelink the amount of its invoice on Mr Lemesh's behalf. His goods were shipped to Canberra by IDS. We infer it did so as Mr Lemesh (albeit under protest) had authorised IDS to pay the Globelink fees.
On 22 November 2018 IDS issued an invoice to Mr Lemesh in the sum of $3,156.68 including GST. This amount included the amount of $1,534.70 paid by IDS to Globelink on 9 November in satisfaction of Globelink's 5 November invoice.
Mr Lemesh initiated a complaint with Globelink about its charges. The parties were unable to resolve their dispute. Mr Lemesh then commenced proceedings in the Tribunal.
[2]
The Decision at First Instance
In the Tribunal below, orders were made on 24 March 2020 that Globelink pay Mr Lemesh …"$1,482.46 Refund of port charges which the respondent has not been able to substantiate on the evidence where the fees for shipping goods from Zagreb in Croatia to Sydney in NSW were paid to other companies". Detailed oral reasons were given by the Tribunal member and we have been provided with a copy of the transcript of those reasons.
Globelink now appeals from that decision.
[3]
Jurisdiction of the Tribunal
There arises a preliminary question as to the jurisdiction of the Tribunal to hear this claim. That is because the claim may be a "general maritime claim" within the meaning of s 4 of the Admiralty Act 1988 (Cth). If that is so, then the Tribunal does not have jurisdiction as it would require the exercise of federal jurisdiction remembering, critically, that the Tribunal is not a court of the state: see s 9 of the Admiralty Act and Burns v Corbett; Burns v Gaynor; A-G for New South Wales v Burns; New South Wales v Burns [2018] HCA 15.
The jurisdiction issue was not raised by the parties or the Tribunal in the proceedings below. Nor was it raised or debated on appeal before the Appeal Panel. It was an issue that arose in the preparation of the Appeal Panel's reasons. As such, following the hearing of the appeal, the parties were invited to make submissions on whether the Tribunal did have jurisdiction to hear and determine the claim. The parties were referred to relevant authority which may have assisted them in understanding the issue and responding. Neither party took the opportunity to make submissions as to whether the Tribunal had jurisdiction.
The Tribunal, including the Appeal Panel, has the duty to satisfy itself whether a claim made to it is within the limited jurisdictional authority conferred on the Tribunal by the Civil and Administrative Tribunal Act (2013) (CAT Act) or any other enabling legislation conferring jurisdiction on it. This duty carries with it the authority to determine whether or not the Tribunal has the jurisdiction to determine the claim before it. If the question is, as is the case here, whether the matter requires the Tribunal to exercise federal jurisdiction, the determination of the question of whether it has jurisdiction does not mean that the Tribunal is exercising federal jurisdiction, rather it is exercising power given to it, by necessary implication and anterior to the exercise of federal jurisdiction, to determine whether it has the necessary jurisdiction to determine the claim: Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213 at [12]-[15] per Leeming JA with whom Macfarlane JA agreed and White JA at [ 73]. If we determine that the Tribunal did not have the jurisdiction to determine the claim, it will be unnecessary to otherwise deal with the issues raised on the appeal, including the reasonableness of any fees charged by Globelink.
[4]
Maritime Claims
Sections 4 of the Admiralty Act 1988 (Cth) is relevantly as follows:
Maritime claims
(1) A reference in this Act to a maritime claim is a reference to a proprietary maritime claim or a general maritime claim…
(3) A reference in this Act to a general maritime claim is a reference to:
(a) a claim for damage done by a ship (whether by collision or otherwise); or
(b) a claim in respect of the liability of the owner of a ship arising under Part II or IV of the Protection of the Sea (Civil Liability) Act 1981 or under a law of a State or Territory that makes provision as mentioned in subsection 7(1) of that Act; or
(ba) a claim under:
(i) the applied provisions (within the meaning of the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008); or
(ii) a law of a State or Territory of a kind referred to in subsection 10(1) of that Act; or
(c) a claim for loss of life, or for personal injury, sustained in consequence of a defect in a ship or in the apparel or equipment of a ship; or
(d) a claim (including a claim for loss of life or personal injury) arising out of an act or omission of:
(i) the owner or charterer of a ship;
(ii) a person in possession or control of a ship; or
(iii) a person for whose wrongful acts or omissions the owner, charterer or person in possession or control of a ship is liable;
being an act or omission in the navigation or management of the ship, including an act or omission in connection with:
(iv) the loading of goods on to, or the unloading of goods from, the ship;
(v) the embarkation of persons on to, or the disembarkation of persons from, the ship; and
(vi) the carriage of goods or persons on the ship; or
(e) a claim for loss of, or damage to, goods carried by a ship; or
(f) a claim arising out of an agreement that relates to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charterparty or otherwise; or
(g) a claim relating to salvage (including life salvage and salvage of cargo or wreck found on land); or
(h) a claim in respect of general average; or
(j) a claim in respect of towage of a ship; or
(k) a claim in respect of pilotage of a ship; or
(m) a claim in respect of goods, materials or services (including stevedoring and lighterage services) supplied or to be supplied to a ship for its operation or maintenance; or
(n) a claim in respect of the construction of a ship (including such a claim relating to a vessel before it was launched); or
(o) a claim in respect of the alteration, repair or equipping of a ship; or
(p) a claim in respect of a liability for port, harbour, canal or light tolls, charges or dues, or tolls, charges or dues of a similar kind, in relation to a ship; or
(q) a claim in respect of a levy in relation to a ship, including a shipping levy imposed by the Protection of the Sea (Shipping Levy) Act 1981, being a levy in relation to which a power to detain the ship is conferred by a law in force in Australia or in a part of Australia; or
(r) a claim by a master, shipper, charterer or agent in respect of disbursements on account of a ship; or
(s) a claim for an insurance premium, or for a mutual insurance call, in relation to a ship; or
(t) a claim by a master, or a member of the crew, of a ship for:
(i) wages; or
(ii) an amount that a person, as employer, is under an obligation to pay to a person as employee, whether the obligation arose out of the contract of employment or by operation of law, including the operation of the law of a foreign country; or
(u) a claim for the enforcement of, or a claim arising out of, an arbitral award (including a foreign award within the meaning of the International Arbitration Act 1974) made in respect of a proprietary maritime claim or a claim referred to in one of the preceding paragraphs; or
(w) a claim for interest in respect of a claim referred to in one of the preceding paragraphs.
(bold emphasis added)
Section 9(1) of the Admiralty Act provides:
9(1) Jurisdiction is conferred on the Federal Court, the Federal Circuit Court and on the Courts of the Territories, and the courts of States are invested with federal jurisdiction in respect of proceedings commenced as actions in personam:
(a) On a maritime claim; or
(b) On a claim for damage done to a ship.
The authorities indicate that section 4 of the Admiralty Act should not be read down but construed according to its plain words: The Owners of The Ship "Shin Kobe Maru" v Empire Shipping Company Inc. (1994) 181 CLR 404. At [33]-[35] the Court said:
33. The purpose of the Act is to vest and confer jurisdiction with respect to maritime claims as defined in s.4, subject to certain specified limits….
34. Given that the Act is primarily concerned with jurisdiction and that it deals with remedies only to extend them in the ways indicated, the word "claim" in the definitions of "proprietary maritime claim" and "general maritime claim" would ordinarily be construed as the assertion of a right or interest recognized by the law and carrying an entitlement to relief. It would not ordinarily be read as confined to claims for particular relief or, even, relief of a particular kind. Similarly, it would not ordinarily be read as excluding claims to particular relief or relief of a particular kind. More particularly, it would not ordinarily be read as excluding a claim for specific performance or for other equitable relief.
In Samick Lines Co. Ltd v Owners of the Antonis P. Lemos [1985] AC 711 the House of Lords considered s 20 of the Supreme Court Act 1981 (UK). That section confers jurisdiction with respect to Admiralty claims on the High Court of England and Wales. Section 20(2)(h) is in relevantly identical terms to s 4(3)(f) of the Admiralty Act. In the Court of Appeal, Parker LJ had said of section 20(2)(h):
There were here unquestionably a number of agreements falling within section 20(2)(h) of the Act of 1981. Unless, therefore, that paragraph must be read as referring only to agreements between the plaintiff and the defendant, the only question for consideration is whether the plaintiffs' claim is a claim arising out of any of those agreements.
Section 20(2)(h) contains no words of limitation restricting the agreements mentioned to agreements between the plaintiff and the defendant. It would have been simple so to limit them if any such limitation had been intended….I am unable to find any sufficient reason for importing such words, and would only do so if compelled by authority. In the absence of such authority I would accordingly hold that, if the plaintiff can establish that his claim arises out of an agreement of the relevant kind, i.e. an agreement relating to the carriage of goods in a ship or to the use or hire of a ship, then even if such agreement is not one between himself and the defendant, that claim falls within paragraph (h).
A similar situation to the present one arose for determination in China Shipping (Australia) Agency Co v D J Kelly Pty Ltd [2010] NSWSC 1556. In that case Rein J considered whether a claim in the Consumer Trader and Tenancy Tribunal (prior to the establishment of NCAT) in relation to charges for the hire of a container which had been used to ship goods by sea to Australia was a maritime claim within the meaning of the Admiralty Act and, if so, whether the CTTT had jurisdiction to determine the claim.
The defendant, D V Kelly Pty Ltd, was an importer of furniture. It arranged for goods to be imported in a container using the services of the plaintiff, China Shipping (Australia) Agency Pty Ltd (China Shipping). China Shipping was the agent of the carrier China Shipping Pty Ltd. The goods were shipped from Vietnam to Australia and on arrival stored in the container which was retained by DV Kelly for some time. China Shipping charged DV Kelly $8514 for the hire of the container. There was no charge for the first ten days after delivery, $40 per day for the period 11 to 40 days after delivery and $80 per day thereafter in accordance with the bill of lading and terms incorporated into the contract.
DV Kelly paid the amount of $8514 and then brought proceedings in the CTTT seeking that China Shipping repay that amount. The CTTT held that the fee charged by China Shipping was a penalty and ordered it to be repaid.
China Shipping appealed to the Supreme Court and it was the Court which raised the question of whether the CTTT had jurisdiction to hear and determine the claim as it may be a maritime claim within the meaning of s 4(3)(f) of the Admiralty Act. After referring to the relevant provisions of the Act, his Honour said:
[8] The steps in the plaintiff's case are:
(1) "Maritime claim" includes a claim arising out of an agreementthat relates to the carriage of goods by ship;
(2) The agreement in question here relates to the carriage of goods by ship;
(3) The claim by DV Kelly for repayment of container charges is one "arising out of" the agreement referred to in (2) above;
(4) Jurisdiction for general maritime claims in personam is conferred on the Federal Court, the Federal Magistrates Courts, the courts of territories and the courts of the states;
(5) The Tribunal is not a court of a state nor is it one of the other courts specifically mentioned;
(6) Where an act invests a state court with federal jurisdiction in respect of a matter, any concurrent state jurisdiction is thereby excluded; and
(7) Therefore the Tribunal had no jurisdiction to hear DV Kelly's
claim.
[9] So far as 8 is concerned that is the content of s 4(3)(f) of the Admiralty Act. Nor can there be any dispute about 8 - the contract contained in the bill of lading relates to the carriage of goods on the CSCL Qingdao. So far as 8 is concerned, it should be noted that "arising out of" is a phrase of wide import. In The Antonis P Lemos [1985] AC 711, the House of Lords held that it means "connected with" in the context of "any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship," (being the words of s 20(2)(h) of the Supreme Court Act 1981 (UK)), and that the subsection was wide enough to cover claims in contract or tort and whether or not the agreement was made directly between the two parties to the action; see also Heilbrunn v Lightwood plc [2007] FCA 1518; (2007) 164 FCR 1 at [36]-[41] per Allsop J, as his Honour then was, applying The Antonis P Lemos. 10 It has been held by the Full Court of the Federal Court of Australia that the conferral of jurisdiction by legislation should be treated amply rather than in a narrow way: see Tisand Pty Limited v The Owners of the Ship MV Cape Moreton (Ex Freya) [2005] FCAFC 68; (2005) 143 FCR 43 at [59]-[65], and this was reiterated in a more recent decision of the New South Wales Court of Appeal per Allsop P, Basten JA and Handley AJA in CSL Australia Pty Limited v Formosa [2009] NSWCA 363; (2009) 235 FLR 273, in particular [25].
His Honour held that the claim did come within the terms of the Admiralty Act. His Honour then went on the consider whether the CTTT could exercise federal jurisdiction, held that it could not and allowed the appeal.
[5]
Determination
This case is a claim by Mr Lemesh that the port charges invoiced to him by Globelink were not payable by him in that he had no contract with them and, in any event, were excessive. The port charges relate to and arise out of the agreement for the carriage of Mr Lemesh's good by ship from Croatia to Australia made with Zagreb Speed and in accordance with the terms of the bill of lading and the arrangements he had to collect them in Sydney. It does not matter that the agreement for carriage of his goods by ship was not between him and Globelink: Antonis P Lemos, ibid; China Shipping, ibid at [9]. As such, it seems to the Appeal Panel that this claim is a general maritime claim within the meaning of s 4(3)(f) of the Admiralty Act.
Section 9 of the Admiralty Act (set out above) confers jurisdiction for maritime claims on the Federal Court, the Federal Circuit Court and courts of the State which are invested by that section with federal jurisdiction to hear in personam maritime claims. However, as has been referred to above, the authorities are clear that the Tribunal is not a court of the State. Accordingly, the Tribunal has no jurisdiction to hear and determine the claim by Mr Lemesh.
The consequence of a federal matter being agitated, or more accurately, sought to be agitated, in the Tribunal was recently considered by Deputy President Harrowell in Dalton v Qantas Airway Ltd; Dalton v Morrison [2020] NSWCATCD 2 at [34]-[38]. The Deputy President there considered what orders NCAT can make if it determines that it does not have the jurisdiction to determine the claim. This issue was referred to in the Court of Appeal in Wilson v Chan & Naylor Parramatta Pty Ltd, ibid. at [11] by Leeming JA. There, his Honour said:
11. Where an applicant commences proceedings which are outside NCAT's jurisdiction for the reasons identified in Burns v Corbett, then the range of orders which may be validly made by NCAT is highly circumscribed. NCAT may not exercise judicial power to determine any part of the justiciable controversy; to do so would be to exercise the judicial power of the Commonwealth and that it cannot do. NCAT could not, for example, determine following a hearing confined to the issue of liability whether or not a respondent was liable, for that would be to exercise judicial power in respect of part of the matter. That constitutional inhibition extends to orders for interlocutory relief, which are also part of the same "matter" (just as the committal for trial is part of the curial determination of charges in respect of federal offences: cf The Queen v Murphy (1985) 158 CLR 596 at 617-618; [1985] HCA 50). Instead:
1. the proceeding may be dismissed for want of jurisdiction;
2. the proceeding may alternatively be transferred to a court which has jurisdiction: Gaynor v Attorney General of New South Wales [2020] NSWCA 48 at [41]-[54], [86], [133]-[137], and
3. … NCAT may make an adverse costs order against the applicant.
In this case, the Tribunal lacks jurisdiction because it is not court of the State (and so is not invested with jurisdiction by s 9 of the Admiralty Act to determine in personam maritime claims) and it otherwise cannot exercise federal jurisdiction.
In our opinion, the appropriate order here is that the proceedings be dismissed for want of jurisdiction.
The orders we make are:
1. The appeal is allowed.
2. The orders made by the Tribunal on 24 March 2020 are set aside and in lieu thereof order that the proceedings are dismissed for want of jurisdiction.
[6]
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: 16 September 2020