Williams v Australian Postal Corporation t/as Australia Post

Consideration

The Tribunal's jurisdiction to determine consumer claims is found in Part 6A of the FTA.
Section 28 of the FTA provides that the Australian Consumer Law applies as a law of New South Wales.
In Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 at 171 the Appeal Panel stated that the Tribunal's jurisdiction to hear and determine a consumer claim that is based on a contravention of the ACL is subject to the prerequisites of Part 6A of the FTA being satisfied.
Section 79L of the FTA provides that a consumer may apply to the Tribunal for a determination of a consumer claim.
Section 79E provides for the meaning of a consumer claim as follows: (1) For the purposes of this Part, a "consumer claim" means a claim by a consumer, for one or more of the following remedies, that arises from a supply of goods or services by a supplier to the consumer (whether or not under a contract) or that arises under a contract that is collateral to a contract for the supply of goods or services: (a) the payment of a specified sum of money, (b) the supply of specified services, (c) relief from payment of a specified sum of money, (d) the delivery, return or replacement of specified goods or goods of a specified description. (2) For the avoidance of doubt, a reference in this Part 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.
It was not disputed that the remedy being sought by Williams was a remedy specified in section 79E(1)(a), being an order for the payment of a specified sum of money.
At the hearing, the Tribunal drew the attention of the parties to the definition of "consumer claim" in section 79E of the FTA. Specifically, the Tribunal noted Australia Post was not the supplier of the goods purchased by Williams but rather was contracted by the supplier to deliver the goods on its behalf to Williams.
The Tribunal referred the parties to the decision of the Appeal Panel in Jenkinson v Chaw [2015] NSWCATAP 127 which considered the definition of a consumer claim. In Jenkinson at [28], the Appeal Panel stated "a consumer claim is not defined by reference to the identity of the party sued. The causative relationship is expressed in words of broad import, namely that the claim "arises from" a relevant supply."
The parties have not provided their evidence relative to the substantive claim. The only issue which I am required to determine in these proceedings is whether the claim made by Williams gives rise to the exercise of federal jurisdiction and raises a federal matter. At the substantive hearing there may be further argument as to whether the claim is a consumer claim and the Tribunal's jurisdiction to hear and determine the application.
In Dalton v Qantas Airways Ltd; Dalton v Morrison [2020] NSWCATCD 2 at [34] and [35], the Tribunal stated: 34. Aside from an appropriate Federal Court, under Chapter III of the Commonwealth Constitution (Constitution) only a court of a State can exercise federal jurisdiction and then, only in respect of matters for which jurisdiction is not exclusive to the High Court and for which a court of a State is invested with power pursuant to s 77 of the Constitution. For present purposes, federal jurisdiction means matters arising under ss 75 or 76 of the Constitution. That includes "any matter ... arising under any law made by the [Commonwealth] Parliament": s 76(ii) of the Constitution. Such conferral is done by the Judiciary Act, 1903 (Cwth). 35. In Attorney General for New South Wales v Gatsby [2018] NSWCA 54 (Gatsby) the Court of Appeal decided that this Tribunal had no jurisdiction to determine a matter arising under s 75(iv) of the Constitution (which dealt with disputes between residents of different States). This was because the Tribunal was exercising judicial power in respect of a federal matter and was not a court of a State for the purpose of Chapter III of the Constitution: Bathurst CJ at [125]-[128] and [184]-[192]; Beazley P, McColl JA and Leeming JA agreeing re judicial power and Beazley P, McColl JA, Basten JA and Leeming JA re court of a State (references omitted). Consequently, disputes between residents of different States in which a landlord was seeking an order for termination of a residential tenancy agreement under the Residential Tenancies Act, 2010 (NSW) could not be determined by the Tribunal, the matter falling to be dealt with under the then Part 3A of the NCAT Act.
In Dalton, the Tribunal provided a useful summary of what constitutes a federal matter at [47] where it stated: 47. A summary of what constitutes a federal matter and the applicable principles to be applied in making such determination was set out by the Appeal Panel in Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275 (Murphy) at [22] and the cases referred to therein. Relevant to a resolution of the issue in the present case are the following principles: (1) to identify the "matter" it is necessary to identify the justiciable controversy: Murphy at [22(2)]; (2) a federal matter will arise whenever the right, duty or enforcement owes its existence to federal law: Murphy at [22(6)]; (3) a federal matter will also arise where the source of defence is a federal law: Murphy at [22(8)]; (4) it is not necessary for the form of relief sought to depend on federal law: Murphy at [22(7)]; (5) unless a federal issue is colourable, the whole of the proceedings is a federal matter requiring the exercise of federal jurisdiction: Murphy at [22(9)].
In Plath v Snowy Monaro Regional Council [2019] NSWCATAP 165, the Appeal Panel considered whether a statutory corporation could "carry on business". The Appeal Panel set out relevant principles at [19]-[22] in determining that question and referred to the decisions in J S McMillan Pty Ltd & Ors v Commonwealth of Australia (1997) 77 FCR 337; [1997] FCA 619 and J S McMillan Pty Ltd & Ors v Commonwealth of Australia (1997) 77 FCR 337; [1997] FCA 619.
In Plath, the Appeal stated at [20] to [22]: 20. In J S McMillan the question was whether the Commonwealth of Australia, through its business unit the Australian Government Publishing Service (AGPS), breached obligations under s 52 of the then Trade Practices Act 1974 (Cth) (the Trade Practices Act). That in turn involved the question of whether the Commonwealth was carrying on a business in relation to AGPS. The Court adopted the following statements of legal principles from other cases: (1) The expression "carry on business", in its ordinary meaning, signifies a course of conduct involving the performance of a succession of acts and not simply the effecting of one solitary transaction (Smith v Capewell [1979] HCA 48; (1979) 142 CLR 509 at 517); and (2) System and regularity are involved in the carrying on of a business but it does not necessarily follow that one who has transactions of the same kind systematically or regularly is carrying on a business in those transactions. 21. The Court found that the services which AGPS had been providing were services of the nature which an entity carrying on a business could well provide. There is a distinction between those functions of a Government which are purely governmental or regulatory and those functions which entail a carrying on of a business. In this case, the Commonwealth, in the guise of the Department of the Senate and the Department of the House of Representatives and other departments, was utilising the services provided or procured by AGPS, and in that context the Commonwealth is carrying out governmental functions. In its guise as AGPS the Commonwealth is doing what any citizen or private trader might do, namely providing those services for remuneration. The Court held that the Parliament intended to limit the extent to which the Commonwealth would be bound by the Trade Practices Act and did so by stating that the application of that Act to the Commonwealth applied only insofar as the Commonwealth carries on a business. The particular conduct impugned in this case was the conduct of the Commonwealth in issuing a request for tender and dealing with prospective tenderers concerning the purchase by a tenderer of aspects of the activities of AGPS. That conduct was not activity engaged in carrying on a business by the Commonwealth in the guise of the AGPS. The conduct in this case was not conduct to which the Trade Practices Act was applicable. 22. The decision of the Court of Appeal of Victoria in Murphy also dealt with the question of whether the Australian Consumer Law (ACL) (Sch 2 Vol 3 of the Competition and Consumer Act 2010, which is the Trade Practices Act renamed from 1 January 2011) was applicable to the conduct of a statutory corporation. The Court set out and approved a number of propositions put forward by the trial Judge concerning the question of whether the relevant conduct was conduct engaged in as part of the carrying on of a business ([46]-[50]). These propositions included: "[46] ... (a) For activities to constitute "carrying on a business", the activities must be undertaken in a commercial enterprise or as a going concern. The activities must constitute trade, or commercial transactions or engagements. A business activity is an activity which takes place in a business context and which, of itself, bears a business character. (b) The expression "carry on a business" signifies a course of conduct involving the performance of a succession of acts with system and regularity, not the effecting of a solitary transaction. The less commercial the character and objectives of an organisation, the greater the degree of system and regularity required to establish that it carries on a business. (c) On the other hand, mere repetitiveness is insufficient. It does not necessarily follow that one who engages in transactions of the same kind systematically or regularly is carrying on a business in those transactions (eg regular deposits into a bank account). Absence of a system and regularity might deny that a business is being carried on but their presence does not necessarily establish that it is. (d) There is a distinction between those functions of a government which are purely governmental or regulatory and those functions which entail the carrying on of business. To carry on some part of 'the business of government' is something different from carrying on a business in the relevant sense. (e) The carrying out of a function of government in the interests of the community, such as the performance of a statutory function (including one in respect of which fees may be charged), is not the carrying on of a business. That the purpose of the activities is the provision of governmental services will tend against a conclusion that they amount to the carrying on of a business. (f) There must be present some element of commerce or trade such as a private citizen or trader might undertake. ... [49] Secondly, based on observations of Emmet J in J S McMillan Pty Ltd v Commonwealth, the judge identified what his Honour described as three important limitations inherent in s18 of the ACL: 1) First, the focus must be on the impugned conduct: the impugned conduct must be engaged in in the course of carrying on the business. 2) Secondly, and consequently, it is not sufficient that the impugned conduct be connected in some way with a business to be conducted by the State at some time in the future; and activities preparatory to the establishment of a business do not constitute the commencement of or the carrying on of a business. 3)Thirdly, the activity in the course of which the impugned conduct occurs must properly be characterizable as "carrying on a business"." (citations omitted) The principles relevant to determining whether specified conduct can be characterised as "carrying on a business" for the purposes of consumer law have been discussed in numerous cases since J S McMillan. See for example Corrections Corporation of Australia Pty Ltd v Commonwealth (2000) 104 FCR 448; [2000] FCA 1280 at [12]- [16]; Sirway Asia Pacific Pty Ltd v Commonwealth [2002] FCA 1152 at [56]; Salvation Army (New South Wales) Property Trust v Commonwealth [2015] FCA 674 at [11]- [14]; and most recently in Roo Roofing Pty Ltd v Commonwealth [2019] VSC 331 at [586] ff.
In J S McMillan, the Court drew a distinction between those functions of a government which are purely governmental or regulatory and those functions which entail carrying on a business.
The Court distinguished between the services the Australian Government Publishing Service (AGPS) provided to the Commonwealth, Department of the Senate and the Department of the House of Representatives and other departments which were governmental functions and those activities which any private citizen or private trader might do, namely providing services for renumeration. The Court held "that the Parliament intended to limit the extent to which the Commonwealth would be bound by the Trade Practices Act and did so by stating that the application of that Act to the Commonwealth applied insofar as the Commonwealth carries on business."
The Tribunal must have regard to the indicia set out in J S McMillan and Murphy in determining the characteristics of the service provided. Additionally, the Tribunal is required to consider the legislation under which Australia Post operates. The question is what intention appears from the provisions in the relevant legislation (see Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334)
Australia Post is created as a body corporate under the Australian Postal Corporation Act 1989. In determining whether Australia Post is "the Commonwealth" within the meaning of section 75(iii) of the Constitution, it is necessary to consider the APC Act.
Australia Post continues to be a body corporate, has a seal and may sue and be sued in its corporate name (section13).
Section 16 of the APC Act provides the functions of Australia Post include the carrying on, within or outside Australia, of any business or activity that is incidental to the supplying of postal services under section 14 or the carrying on of any business activity under section 15.
Australia Post has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions (section 17(1)).
Section 18 (1) of the APC Act sets out the power Australia Post has for and in connection with the performance of its functions including "(c) to supply courier services".
Australia Post has obligations set out in section 25 of the APC Act being its commercial obligation under section 26, its community service obligations under section 27 and its general obligations under section 28.
Section 26 of the APC Act provides "Australia Post shall, as far as practicable, perform its functions in a manner consistent with sound commercial practice".
Section 32D of the APC Act provides Part IIIA of the Competition and Consumer Act 2010 ("the CCA") does not apply to Australia Post in relation to the supply of a service (including a bulk interconnection service and an incoming overseas mail service).
The objects of Part IIIA are states in section 44AA of the CCA as: (a) promote the economically efficient operation of, use of and investment in the infrastructure by which services are provided, thereby promoting effective competition in upstream and downstream markets; and (b) provide a framework and guiding principles to encourage a consistent approach to access regulation in each industry.
Any party has the right to negotiate terms and conditions of access to a declared service under Part IIIA of the CCA. Services must meet certain criteria to become a declared service.
In section 32D, Parliament exempted Australia Post from Part IIIA of the CCA. There is no exemption from the other provisions of the CCA. It is a reasonable inference that in the absence of a complete exemption from the CCA, the remaining provisions of the Act apply to Australia Post including Schedule 2. Parliament would have enacted appropriate legislation to exempt Australia Post from the provisions of the CCA if that was its intention.
Australia Post has immunity from certain actions. Relevantly, section 34(1) of the APC Act provides an action or proceeding does not lie against Australia Post or any other person in relation to any loss or damage suffered, or that may be suffered, by a person because of any act or omission (whether negligent or otherwise) by or on behalf of Australia Post in relation to the carriage of a letter or other article by means of "the letter service".
The words "the letter service" are defined in section 3 of the APC Act to mean "the service supplied by Australia Post under section 27". The obligation under section 27 is to provide a letter service which is exclusive to Australia Post.
Under section 29(1) of the APC Act, Australia Post has the exclusive right to carry letters within Australia whether the letters originated within or outside Australia subject to certain exceptions listed in section 30.
Except as provided by or under the APC Act or any other Act, Australia Post and its Board are not subject to direction by or on behalf of the Australian Government (section 50 of the APC Act).
Importantly, section 90A of the APC Act provides Australia Post is not entitled to the immunities or privileges of the Commonwealth. Section 90A states: For the purposes of the laws of the Commonwealth, or of a State or Territory, Australia Post is not entitled to any immunity or privilege of the Commonwealth except so far as express provision is made by this Act or any other law of the Commonwealth, or by a law of the State or Territory.
A reasonable inference can be drawn that Parliament intended Australia Post to be subject to the laws of the Commonwealth, States and Territories and is not entitled to any immunity or privilege except as specifically provided in legislation.
Applying the indicia in J S McMillan and Murphy and after a consideration of the APC Act, the Tribunal makes the following findings: 1. The activities of Australia Post constitute the "carrying on of a business", being activities which constitute trade, or commercial transactions or engagements. 2. Australia Post and its Board are not subject to the direction of the Australian Government except in certain circumstances. Australia Post and its Board have a substantial degree of independence from the Australian Government. 3. The function of Australia Post in providing courier services is a function which entails the carrying on of business. It is to be distinguished from a function which is purely governmental or regulatory. The courier service is a service which can be provided by any private citizen or trader and is operated as a commercial enterprise. It should be distinguished from the letter service which is a statutory function and exclusive to Australia Post. 4. The conduct complained of by Williams occurred as a part of carrying on business by Australia Post. From a consideration of the provisions of the APC Act, I am satisfied that Parliament intended the consumer guarantees in the ACL should apply to Australia Post's courier business. 5. Applying the principles identified in Murphy in determining what constitutes a "federal matter", I find there is no right, duty or enforcement which owes its existence to federal law, nor is there a defence the source of which is federal law. The relief sought by Williams does not depend on federal law. I am not satisfied the application involves a federal matter. 6. Australia Post did not raise any defence which was available to it under federal law or assert that Williams' claim was based on federal law. 7. The provisions of the APC Act make it clear Parliament intended Australia Post to be subject to the laws of New South Wales except in certain specific legislated circumstances and is not entitled to claim immunity or privilege of the Commonwealth.
The Tribunal was referred to the unreported decision of the Tribunal in McKerrell v Australian Postal Corporation (GEN 23/01140) delivered on 4 May 2023. I have read the decision. I do not consider myself bound by that decision. It seems the Tribunal in that case was not referred to the APC Act or considered the various authorities cited in this decision. Member Tibbey at paragraph 8 stated: "I find that NCAT lacks jurisdiction to deal with this matter because it is a wholly owned government corporation and comes within the definition of "the Commonwealth" for the purposes of s 75 (iii) of the Constitution (Burns v Corbett (2018) 265 CLR 304; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.
I do not agree with Member Tibbey's finding the Tribunal lacked jurisdiction to hear the application and the reasons given for the decision.

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