MD Monwar Hossain v South Western Sydney Local Health District

BACKGROUND 1This decision is concerned only with the question of whether or not the Tribunal has jurisdiction to deal with the applicant's claims set out in the Amended Application dated 7 November 2013. 2The Amended Application seeks the following orders: (a)A declaration that the conduct of the Respondent and terms of the guarantee form and the transaction entered into by the Applicant breach the provisions of The Australian Consumer Law (ACL), specifically s 18(1) (misleading conduct), s 21-22 (unconscionable conduct) and s 23-25 (unfair terms) (b)A declaration that the Applicant has no further liability to the Respondent for the payment of any amount. (c)An order that the Respondent repay to the Applicant all sums paid by the Applicant to date, totalling $9,651.90, and interest on that amount from the date of payment. 3The following facts appear to be uncontested: (a)The applicant took his brother-in-law to Liverpool Hospital on 9 June 2012, as the brother-in-law was experiencing chest pains. (b)The brother-in-law was a visitor from overseas and was ineligible for Medicare benefits. (c)The brother-in-law was admitted to the hospital, which is operated by the respondent. (d)On the day of his admission to the hospital, the brother-in-law signed a declaration agreeing to pay accommodation costs and any fees raised in relation to associated clinical services. (e)The same document contained a form of guarantee and indemnity which was signed by the applicant. 4The applicant contends that he was misled by the respondent into believing that the respondent would only provide treatment to his brother-in-law if he signed the form as guarantor. The applicant asserts that he would not have signed the guarantee form if he had been informed that the treatment would have been provided even if the applicant did not sign the form. 5The applicant seeks to invoke the jurisdiction of the Tribunal to provide a remedy for the misleading representations alleged to have been made by the respondent to the applicant which the applicant contends induced him to sign the guarantee form, in breach of s 18(1) of The Australian Consumer Law (ACL). 6The applicant also contends that the respondent's conduct was unconscionable, in breach of s 21 of the ACL, entitling him to a remedy. 7Furthermore, the applicant asserts that the guarantee attracts the protection of the unfair contract provisions of the ACL found in s 23. 8The threshold issue to be determined by the Tribunal to enliven its jurisdiction is whether or not the applicant's claim or claims is or are a "consumer claim" within the definition contained in s 3A of the Consumer Claims Act 1998 (CC Act). RELEVANT LEGISLATION 9Jurisdiction is conferred on the Tribunal to hear and determine any consumer claim by s 7 of the CC Act which provides: 7 Jurisdiction in respect of consumer claims (1) General The Tribunal has jurisdiction to hear and determine any consumer claim brought before it under this Part, whether or not the matter to which the claim relates arose before or after the commencement of this Part, except as otherwise provided by this section. (2) Supply or agreement made, or supply intended to be made, in New South Wales The Tribunal has jurisdiction to hear and determine a consumer claim only if: (a) the goods or services to which the claim relates were supplied in New South Wales, or (b) a contract or other agreement to which the claim relates contemplated that the goods or services would be supplied in New South Wales (whether or not they were so supplied), or (c) a contract or other agreement to which the claim relates was made in New South Wales (whether or not the goods or services were supplied in New South Wales). (3) The Tribunal has such jurisdiction whether or not: (a) a contract or other agreement to which the claim relates confers jurisdiction on any other court or tribunal (whether in New South Wales or elsewhere), or (b) the rules of private international law require a law other than the law of New South Wales to be applied to the hearing or determination of the claim. (4) Limitation periods The Tribunal does not have jurisdiction to hear and determine a consumer claim if any of the following apply: (a) the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged, (b) the goods or services to which the claim relates were supplied (or, if made in instalments, were last supplied) to the claimant more than 10 years before the date on which the claim is lodged. (4A) Nothing in this section affects any period of limitation under the Limitation Act 1969. (5) Claim relating to solicitor's or barrister's costs A matter arising in relation to the fairness or reasonableness of the costs charged by a barrister or solicitor for an item of business transacted by the barrister or solicitor is not within the jurisdiction of the Tribunal if the costs can be the subject of a costs assessment under Part 3.2 of the Legal Profession Act 2004. 10The meaning of "consumer claim" is set out in s 3A of the CC Act: 3A Meaning of "consumer claim" (1) For the purposes of this Act, a consumer claim is: (a) a claim by a consumer for the payment of a specified sum of money, or (b) a claim by a consumer for the supply of specified services, or (c) a claim by a consumer for relief from payment of a specified sum of money, or (d) a claim by a consumer for the delivery, return or replacement of specified goods or goods of a specified description, or (e) a claim by a consumer for a combination of two or more of the remedies referred to in paragraphs (a)-(d), that arises from a supply of goods or services by a supplier to the consumer, whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of goods or services. (2) For the avoidance of doubt, a reference in this Act to a consumer claim includes a reference to a claim by a consumer against a supplier (for example, a manufacturer or wholesaler) who is not the direct supplier of goods or services to the consumer if the claim arises from or in connection with the supply of those goods or services by the direct supplier to the consumer. 11 "Consumer" is defined in s 3 of the CC Act as follows: (a) a natural person, or (b) a firm, or (c) a small proprietary company, or (d) an owners corporation constituted under the Strata Schemes Management Act 1996, or (e) a company that owns an interest in land and has a memorandum or articles of association conferring on each owner of shares in the company a right to occupy under a lease or licence a part or parts of a building erected on the land, or (f) an incorporated association, or (g) an unincorporated body whose members are associated for a common purpose, or (h) a company limited by guarantee (not being a company limited both by shares and by guarantee),to whom or to which a supplier has supplied or agreed to supply goods or services, whether under a contract or not, or with whom or which a supplier has entered into a contract that is collateral to a contract for the supply of goods or services. (a) a natural person, or (b) a firm, or (c) a small proprietary company, or (d) an owners corporation constituted under the Strata Schemes Management Act 1996, or (e) a company that owns an interest in land and has a memorandum or articles of association conferring on each owner of shares in the company a right to occupy under a lease or licence a part or parts of a building erected on the land, or (f) an incorporated association, or (g) an unincorporated body whose members are associated for a common purpose, or (h) a company limited by guarantee (not being a company limited both by shares and by guarantee), to whom or to which a supplier has supplied or agreed to supply goods or services, whether under a contract or not, or with whom or which a supplier has entered into a contract that is collateral to a contract for the supply of goods or services. 12Section 28 of the Fair Trading Act 1987 applies the ACL as a law in New South Wales: 28 Application of Australian Consumer Law (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. CONSIDERATION 13The respondent, through its hospital, is unquestionably an institution which, in the course of its business, supplies services. 14To attract the jurisdiction of the Tribunal, it must be established by the applicant that he has a consumer claim, as specified in sub-section 1 of s 7 of the CC Act. 15The definition of consumer claim in s 3A includes claims by a consumer for the payment of a specified sum of money or for relief from payment of a specified sum of money (or a combination of the remedies) that arise from the supply of services by the supplier to the consumer, whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of services. 16The definition of consumer in s 3 of the CC Act includes: ●a natural person ●with whom ●a supplier ●has entered into a contract ●that is collateral ●to a contract for the supply of services.