The applicant has lodged an application on 19 May 2015 appealing against the decision made by the Travel Compensation Fund on 24 October 2014. This decision was to refuse to pay the applicant compensation in respect of moneys lost by the applicant as a result of the acts or omissions of a travel agent participating in the Fund.
The applicant seeks orders for the payment of $2,889.12 from the respondent.
[2]
Evidence
The applicant gave evidence that on or about 12 March 2012, he purchased airline tickets from Travelscene Concord ("the travel agent") for a return trip from Sydney to Toronto, via Seoul and Vancouver in June 2012. He paid the sum of $2,380.00 to the travel agent by credit card on that day.
On 24 June 2012, the applicant attempted to contact the travel agent as he had not received his airline tickets. He eventually spoke to a person at the Travelscene head office, who advised him that the travel agent had ceased operations, and that no ticket had been purchased on his behalf.
The applicant then purchased another ticket for air travel at a cost of $2,889.12.
Upon his return on 29 July 2012, the applicant contacted the Travel Compensation Fund ("the respondent"), who advised him to exhaust all avenues with his bank to recover the money before making a claim.
The applicant stated that, in late August 2012, he completed a "Statement of Disputed Item" and lodged it with his bank. After a lengthy period, he was informed by the bank that they had no record of his claim, and he would need to complete another form.
The applicant's evidence is that, despite his best efforts, it was not until 22 October 2014 that the bank finally provided him with a statutory declaration to the effect that the payment to the travel agent had not been reversed and that he had not received any compensation from them.
On 22 October 2014, the applicant lodged a claim with the respondent.
By letter dated 24 October 2014 (exhibit 1) the respondent rejected the applicant's claim in the following terms:
"The Chief Executive Officer rejected the claim as provided under Clause 16.6 of the TCF Trust Deed.
The new TCF trust Deed which came into effect on 1 July 2013 does not permit the TCF Board to extend the 12 month period in which a person can lodge a claim for compensation. The period starts when the travel agent's TCF participation is terminated, which is effectively the time the travel agent ceases business.
Accordingly your claim is ineligible for compensation and cannot be accepted as the agent was terminated more than 12 months ago.
In this instance the 12 month time frame provided under Clause 6.1 of the TCF Trust Deed for acceptance of claims expired on 21 June 2013."
The applicant sought a review of the respondent's decision and received letters dated 27 April 2015, and 11 May 2015 confirming the original decision (exhibits 2 & 3).
The applicant stated in his evidence that he was not aware of the 12 month limit in which he had to make his claim for compensation to the respondent. If he had been aware of this, he would have brought his application in time.
Further, the applicant states that the trust deed came into effect on 1 July 2013 which is after his dealings with the travel agent. The argument that the applicant seems to be advancing is that his claim should have been considered under the previous trust deed which allows the respondent to exercise discretion to extend time to bring the claim.
The respondent was represented by Mr Rapoport, solicitor. He argued firstly, that the applicant had brought these proceedings out of time. Clause 19.2 of the trust deed states that an appeal to the Tribunal against the decision of the Board administering the fund must be made within 1 month after receiving notice of that decision. In these circumstances, the applicant lodged his application to the Tribunal on 14 May 2015, and the decision was made by the Board on 24 October 2014.
The respondent also argued that the trust deed which regulates the fund does not allow the board to exercise any discretion to extend the time for bringing the claim. The previous trust deed did contain such discretion, but this was not carried forward in the new deed. The relevant date when time starts to run is 22 June 2012, being the date that the travel agent ceased to be a participant within the scheme. The applicant lodged his claim with the respondent on 22 October 2014.
Further, Mr Rapoport submitted that the applicant was aware of the 12 month time period in which a claim should be should be lodged. In support he tendered into evidence the claim form (exhibit 5) and the applicant's letter dated 16 April 2015 (exhibit 6) whereby he states "…I was fully aware of the 12 month Claim period stipulated but TCF and yet submitted my Claim hoping that I had justified the reason for the delayed Claim…"
[3]
Extension of Time to bring Appeal
The applicant has lodged this application to the Tribunal out of time, but section 41 of the Civil and Administrative Tribunal Act 2013 ("the Act") gives me the power to extend time to bring proceedings. In these circumstances, I accept that the applicant may have believed that the relevant time period to bring proceedings may have commenced from the last notification. In the interests of justice and in exercise of my discretion under the Act, I extend the time for the applicant to bring these proceedings to 19 May 2015.
[4]
Relevant Law
The Travel Compensation Fund ("TCF") was established to provide compensation to consumers who have suffered a loss as a result of the acts or omissions of travel agents participating in the scheme.
Section 57(2) of the Travel Agents Act 1986 (NSW) (repealed) allows the Governor to make regulations to set up a scheme for compensation in the abovementioned circumstances. The TCF was therefore set up as a trust which is regulated by the Trust Deed is contained in Schedule 1 of the Travel Agents Regulation 2011.
Clause 15.1 of Schedule 1 provides:
"The Board must pay compensation out of the Fund in accordance with the terms of the Deed to a person who:
(a) enters into travel arrangements or travel-related arrangements directly or indirectly with a participant, and
(b) has suffered or may suffer direct pecuniary loss arising from a failure to account by the participant and the failure to account arises from an act or omission by the participant or an employee or agent of the participant, and
(c) is not protected against the direct pecuniary loss by a policy of insurance."
Clause 16.1 of Schedule 1 states:
"A person is not entitled to compensation from the Fund unless the "person makes a claim under this clause:
(a) in the case of a claim for compensation under clause 15.1, 15.2(a) or 15.2(c) in respect of a participant whose participation has ceased, within 12 months after such participation ceased, and
(b) in every other case, within 12 months after the failure to account for money or other valuable consideration to which the claim relates."
Even though the Travel Agents Act 1986 has been repealed, the applicant still has a right of appeal to the Tribunal against the decisions of the administrators to the fund by virtue of Schedule 5, clause 22 of the Fair Trading Act 1987. This was confirmed in the decision of the Appeal Panel in Khashashneh v Travel Compensation Fund [2015] NSWCATAP 142.
The Applicant raised the issue of whether the July 2013 version of the Trust Deed applied to his claim, or whether the earlier version applied, given that a number of the key events relevant to his claim pre-dated the commencement of the new Trust Deed.
The Trust Deed is found in the Schedule of the Regulations to the Travel Agents Act 1986, and is therefore a form of legislative instrument. As such it falls for determination under principles of statutory interpretation.
Whilst it is generally accepted that the repeal of one legislative instrument and the enactment of a new legislative instrument would not be intended to affect vested rights (see s 30 Interpretation Act 1987; Maxwell v Murphy (1957) 96 CLR 261), this principle does not extend to changes of a procedural nature (see Maxwell v Murphy at 267 per Dixon CJ; see also Torrac Nominees Pty Ltd v Karabay; UWS Macarthur Sports & Recreation Association Inc v Karabay [2007] NSWCA 96 at [22].)
[5]
Findings
The nature of the change to the July 2013 Trust Deed, whereby the Board no longer had any discretion to extend time to bring an application for compensation, is procedural rather than substantive. Therefore, the presumption that such changes are not retrospective, does not apply. As a result, I find that the applicant's claim is governed by the Trust Deed which came into effect in July 2013.
In this case, the Applicant did not make a claim for compensation under the Trust Deed until 22 October 2014, over two years after his right to make such a claim accrued, and over a year after the time to make such a claim had expired. Therefore, at the time the applicant lodged his claim with the respondent, he was out of time, and the respondent did not have discretion to extend time.
Accordingly the Application is dismissed.
L Williams
General Member
Civil and Administrative Tribunal of New South Wales
10 August 2015
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
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Decision last updated: 01 October 2015