Robinson Murray v Bargshoon and Anr

Decision

The only mater for determination is the appeal in respect of orders concerning the first respondent.
As is evident from the last paragraph of the July decision, the Tribunal made an order against the first respondent on the basis that the appellant's claim was a consumer claim within the meaning of the Consumer Claims Act, 1998 (CC Act).
Section 3A of the CC Act provides that a consumer claim is a claim by a consumer "that arises from a supply of goods and services by a supplier to a consumer". A supplier means "a person who, in the course of carrying on, or purporting to carry on, a business, supplies goods or services".
No suggestion was made by either party in the present appeal that the appellant was not the contracting party to purchase the goods nor is a suggestion made in the present appeal that the appellant is not a consumer within the meaning of the CC Act. It was also not in dispute that the motor dealer selling the car to the appellant was the second respondent, SSS Best Cars Pty Ltd.
The claim against the second respondent related to a contract between the second respondent and the appellant. As indicated in the July decision this claim included the Tribunal considering a claim relating to breach of contract (including breaches of terms implied into that contract by legislation such as the Australian Consumer Law (ACL).
The first respondent was not a party to this contract as supplier or otherwise. The first respondent was not a supplier within the meaning of the CC Act, the supplier in the present case being the second respondent against whom the appeal has been dismissed.
Consequently, absent any other enabling legislation, the Tribunal has no jurisdiction to hear and determine a claim against the first respondent.
Further, it appears to the Appeal Panel that even if the Tribunal did have jurisdiction to determine the claim made against the first respondent, an order should not have been made against the first respondent requiring him to return the Mitsubishi Mirage.
The first respondent was not a party to the original proceedings and was not the subject of any order in the original proceedings. The Mitsubishi Mirage was not delivered to him pursuant to orders made in the original proceedings. The Mitsubishi Mirage was delivered to the second respondent and having regard to the deregistration of the second respondent and in the absence of evidence to satisfy the Tribunal that the Mitsubishi Mirage is in fact in the possession and control of the first respondent order 5 is not an order with which the first respondent could comply.
In relation to the question of whether the Tribunal otherwise had jurisdiction to determine the claim against the first respondent, as indicated above it would appear that the orders made against the first respondent were on the basis of a representation made by the first respondent to the appellant.
During the course of the hearing of the appeal, the appellant suggested that the relevant representation related to whether or not the vehicle had multiple owners. As is evident from the reasons above, the issue of multiple owners was not a matter addressed by the Tribunal in reaching its conclusions. Further, from listening to Exhibit A it is clear that the issue of multiple owners was not an issue of fact raised at the hearing on 11 July 2014. As this issue was not raised at the hearing on 11 July 2014, it is not a matter that can be raised on appeal: see Coulton v Holcombe 162 CLR 1.
However, it would seem from the reasons for decision that the Tribunal considered that a representation had been made concerning the merchantable quality or fitness for purpose of the Mitsubishi Mirage. A claim in relation to this matter could be cast in a number of ways such as a claim for breach of contract (including terms implied by applicable legislation) or alternatively a claim for misrepresentation (negligent or otherwise) or misleading and deceptive conduct in contravention of the ACL.
The July decision does not suggest the claim against the first respondent was considered in terms of a claim for negligent misrepresentation. In any event, if it had been cast in this matter, it would have failed because the jurisdiction of the Tribunal is limited to determining a claim within the meaning of the CC Act. As indicated above, the first respondent is not a supplier and the claim against the first respondent is not a consumer claim within the meaning of the CC Act.
Another possible way that the claim could have been put against the first respondent was on the basis that the first respondent had engaged in misleading and deceptive conduct in contravention of section 18 of the ACL, found in Chapter 2 of the ACL.
The ACL is federal legislation and claims brought pursuant to the provisions of the ACL for orders under Part 5 of the ACL must be brought in a court. The Tribunal is not a court for the purpose of federal legislation: see Trust Company of Australia v Skiwing (2006) 66 NSWLR 77 and Australian Executor Trustees Ltd v Steak Plains Olive Farm Pty Ltd [2014] NSWCATCD 143.
However, the ACL also applies as a law of New South Wales pursuant to section 28 of the Fair Trading Act, 1987 (FT Act). In this regard the ACL is referred to as the Australian Consumer Law (NSW)
While the Tribunal is not a court for the purpose of making orders under Part 5 of the Australian Consumer Law (NSW): see section 30 of the FT Act, section 74 (3) of the FT Act provides as follows: "(3) The Tribunal may decide the matter of whether a person has suffered loss or damage because of the conduct of another person that constitutes a contravention of Chapter 2 or 3 of the ACL if the matter arises in connection with another matter the subject of proceedings in the Tribunal. In deciding the matter of loss or damage, the Tribunal may award such sum, and make such ancillary orders, as it thinks fit."
Therefore, the issue is whether or not the present claim is a matter that "arises in connection with another matter the subject of proceedings in the Tribunal" and whether the FT Act otherwise grants jurisdiction to the Tribunal to determine claims by a consumer against a person who is not a "supplier" within the meaning of the CC Act.
In our view section 74 (3) does not grant jurisdiction to the Tribunal to determine a matter of whether a party has suffered loss or damage suffered because of the contravention of Chapters 2 and 3 of the ACL unless: 1. the person seeking to make that claim was otherwise entitled to bring proceedings in the Tribunal against the other party in respect of another matter for which the Tribunal has jurisdiction; and 2. the contravening conduct arises in connection with the proceedings before the Tribunal.
In broad terms jurisdiction arises where: 1. There is an entitlement to make an application to the Tribunal; 2. In respect of defined disputes; and 3. The Tribunal has power to make orders relevant and/or necessary to the adjudication and disposition of the dispute (whether by monetary award or otherwise)
The dispute for which jurisdiction is granted can be defined in various ways including by reference to particular parties, particular transactions, particular types of claims or a combination of these factors. The CC Act and the Home Building Act, 1989 provide examples of how the legislature has provided jurisdiction to the Tribunal.
In addition, disputes which might be determined by the Tribunal can be defined by reference to other disputes which have a connection with a dispute the Tribunal has jurisdiction to determine.
Jurisdiction is not divorced from the powers of the Tribunal, and the legislative scheme regulating the making of an application. In Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 , at page 561, Toohey J said, in construing the powers of the Federal Court to grant an amendment: "but the reasoning blurs notions of jurisdiction and power; importantly, it fails to accord due weight to limitation provisions expressed in the Act itself. "Jurisdiction", it has been said, means "the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way or its decision". In the exercise of its jurisdiction, a court has powers expressly or impliedly conferred by the legislation governing it. …". That authority is given to the Tribunal by the legislation enabling an application to be made, defining the claim for which an application can be made and giving power to the Tribunal to make orders to resolve the controversy.
Section 74(3) seeks to provide a connection between claims under the ACL and claims the subject of proceedings in the Tribunal by use of the expression "arises in connection with" so as to allow the Tribunal to decide a relevant matter under the ACL. The expression "arises in connection with" has a wide meaning.
In Claremont Petroleum NL v Cummings [1992] FCA 446; (1992) 110 ALR 239: Wilcox J stated: "The phrase 'in connection with' is one of wide import, as I had occasion to observe in a different context in Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465 at 479-80; [1987] FCA 301; 77 ALR 577 at 591-2: The words 'in connexion with' ... do not necessarily require a causal relationship between the two things: see Commissioner for Superannuation v Miller [1985] FCA 445; (1985) 8 FCR 153 at 154, 160, 163; [1985] FCA 445; 63 ALR 237 at 238, 244, 247. They may be used to describe a relationship with a contemplated future event: see Koppen v Commissioner for Community Relations (1986) 11 FCR 360 at 364, Johnson v Johnson [1952] P 47 at 50-1. In the latter case the United Kingdom Court of Appeal applied a decision of the British Columbia Court of Appeal, Re Nanaimo Community Hotel Ltd [1945] 3 DLR 25, in which the question was whether a particular court, which was given 'jurisdiction to hear and determine all questions that may arise in connection with any assessment made under this Act', had jurisdiction to deal with a matter which preceded the issue of an assessment. The trial judge held that it did, that the phrase 'in connection with' covered matters leading up to, or which might lead up to an assessment. He said ...: 'One of the very generally accepted meanings of 'connection' is 'relation between things one of which is bound up with or involved in another'; or, again 'having to do with'. The words include matters occurring prior to as well as subsequent to or consequent upon so long as they related to the principal thing. The phrase 'having to do with' perhaps gives as good a suggestion of the meaning as could be had.' This statement was upheld on appeal".
In Elkateb v Lawindi (1997) 42 NSWLR 396 Giles CJ Comm D (as his Honour then was) said: "The phrase 'in connection with' has on many occasions been said to be of considerable width, satisfied by a link or an association ( Commissioner for Superannuation v Miller [1985] FCA 445; (1985) 8 FCR 153) or a relationship ( Our Town FM Pty Ltd v Australian Broadcasting Tribunal [No 1] [1987] FCA 301; (1987) 16 FCR 465; Drayton v Martin (1996) 137 ALR 145) and summed-up in the phrase 'having to do with': see the same cases and Nanaimo Community Hotel Ltd v Board of Referees [1945] 3 DLR 225. As with the phrase 'in relation to', no doubt the context or the purpose may require that the link, association or relationship be of a particular kind, sometimes described as an appropriate or relevant relationship ( Perlman v Perlman [1984] HCA 4; (1984) 155 CLR 474; R v Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185 and O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1989) 169 CLR 356), but it should not be read down unless there be compelling reason to do so ( Fountain v Alexander [1982] HCA 16; (1982) 150 CLR 615). This approach to the phrases 'in relation to' and 'in connection with' has been recognised in the context of arbitration clauses (see IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466), and in Dowell Australia Ltd v Triden Contractors Pty Ltd [1982] 1 NSWLR 508 it was said (at 515) that the latter phrase 'should ... exclude only claims entirely unrelated to the commercial transaction covered by the contract' and extended to a claim to rectification. IBM Australia Ltd v National Distribution Services Ltd is also authority for the more general proposition that an arbitration clause expressed in language of this kind is not to be narrowly construed" (at 402).
In R v Orcher [1999] NSWCCA 356; (1999) 48 NSWLR 273 the New South Wales Court of Criminal Appeal was concerned with an offence under s 326(1) Crimes Act 1900 of threatening, "to do or cause ... any injury or detriment to any person on account of anything lawfully done by a person: `(c) as a public justice official in or in connection with any judicial proceeding".
Spigelman CJ (with whom Grove and Sully JJ agreed) referred to the following statement that the Full Federal Court made in a statutory context in Burswood Management Ltd v Attorney General (Cth) [1990] FCA 203; (1990) 23 FCR 144 at 146: '[I]n connection with' are words of wide import: and the meaning to be attributed to them depends on their context and the purpose of the statute in which they appear".
His Honour also referred to the observation (quoted with approval in Burswood ) of Davies J in Hatfield v Health Insurance Commission [1998] FCA 1340; (1987) 15 FCR 487 that words such as "in connection with" are "subject to the context in which they are used, to the words with which they are associated and to the object or purpose of the statutory provision in which they appear" (at 491).
Section 74(3) requires that the connection must be with "another matter the subject of proceedings in the Tribunal". That is the "connection" is not only with the "matter" but also with "proceedings in the Tribunal".
The expression "matter" in section 74(3) is referring to a "cause of action" or issue to be determined, not proceedings. Thus s74(3) authorises the Tribunal to decide a cause of action or issue relating to a contravention of Parts 2 and 3 of the ACL and make an award of money or ancillary orders if appropriate.
However, the language of the section does not authorise the making of an application. The section contemplates there is already in existence a dispute concerning "another matter the subject of proceedings in the Tribunal". There is no express power in section 74(3) or otherwise in the FT Act to authorise the making of an application to the Tribunal; 1. to determine a claim under the ACL by one person against another person absent other proceedings in the Tribunal; or 2. to join that other person as a respondent to an existing proceeding brought by the applicant against a third party.
Therefore any entitlement to apply to the Tribunal for orders under the ACL against a person who is not already a party to proceedings before the Tribunal depends on a power to make such an application under enabling legislation other than the FT Act.
In the present case the only possible source of power is the CC Act.
As the first respondent is not a person against whom the appellant could otherwise bring an action under the CC Act and the CC Act does not otherwise authorise the making of this claim, a cause of action under the ACL for an award of a sum of money and/or the making of ancillary orders under the FT Act is not a matter the Tribunal was able to determine in the present case. This is because the grant of jurisdiction to the Tribunal under the CC Act is in respect of "consumer claims". Consumer claims are defined by a type of transaction between defined classes of people, respectively called "consumers" and suppliers" and the first respondent is not a supplier under the CC Act.
Whether or not such a claim could have been brought in a court of competent jurisdiction under the ACL, it is sufficient to record that there was no jurisdiction of the Tribunal to hear and determine the claim against the first respondent in the present case.
Accordingly, the Tribunal was in error in making orders against the first respondent, the appeal should be allowed, those orders against the first respondent should be set aside and the application before the Tribunal by the appellant against the first respondent should be dismissed.
The orders of the Appeal Panel are as follows: 1. Appeal allowed; 2. Orders made by the Tribunal against the first respondent in application MV 14/01582 on 11 July 2014 are set aside; 3. The application by the appellant against the first respondent in proceedings MV 14/01582 is dismissed. I hereby certify this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal Principal Registrar

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