Applicant XD 211022 v Traditional Chinese Massage Pty Ltd & Anor (Civil Dispute)
[2022] ACAT 64
•8 July 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
APPLICANT XD 211022 v TRADITIONAL CHINESE MASSAGE PTY LTD & ANOR (Civil Dispute) [2022] ACAT 64
XD 1022/2021
Catchwords: CIVIL DISPUTE – application to dismiss – whether several civil dispute applications can be made arising from the same facts with each seeking the ACAT monetary limit for damages – whether a civil dispute claim can be made in ACAT for trespass to the person, in this case battery
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 15, 16, 17, 18, 32
Australian Consumer Law
Civil Law (Wrongs) Act 2002
Legislation Act 2001 ss 139, 157, 141, 142
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020
Cases cited:Bolaram v Australian Capital Territory [2020] ACAT 108
Breeze Mr Pty Ltd v Body Corporate for Bay Village Community Title Scheme33127 [2021] QSC 263
Dirkis v Public Trustee and Guardian [2021] ACAT 30
Ellerine Bros.v Klinger [1982] 2 All ER 737
Maher v The Owners – Units Plan No. 3995 [2021] ACAT 110
List of
Texts/Papers cited: DC Pearce and RS Geddes, Statutory Interpretation in Australia (8th edition, 2014)
Lexis Nexis, Concise Australian Legal Dictionary (6th edition, 2021)
Oliver Jones, Bennion on Statutory Interpretation (6th edition, 2013)
RP Balkin & JLR Davis, Law of Torts (Butterworths, 2013)
Tribunal:Senior Member R Orr QC
Date of Orders: 8 July 2022
Date of Reasons for Decision: 8 July 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1022/2021
BETWEEN:
APPLICANT XD 211022
Applicant
AND:
TRADITIONAL CHINESE MASSAGE PTY LTD ACN 645 169 866
First Respondent
TIANCI INTERNATIONAL PTY LTD ACN 141 391 675
Second Respondent
TRIBUNAL:Senior Member R Orr QC
DATE:8 July 2022
ORDER
The Tribunal orders that:
The application for interim or other orders made by the respondents is dismissed.
The first respondent is removed as a party.
………………………………..
Senior Member R Orr QC
REASONS FOR DECISION
These proceedings concern a claim by the applicant against two companies, Traditional Chinese Massage Pty Ltd (Traditional Massage or first respondent) and Tianci International Pty Ltd (Tianci or second respondent) (jointly respondents) in relation to massage services he received. The proceedings were commenced by an application dated 27 September 2021 in proceedings XD 1022/2021 for battery (application). There were then further claims in proceedings XD 1063/2021 under the Australian Consumer Law (ACT)[1] and XD 1064/2021 for intentional infliction of harm.
[1] The Fair Trading (Australian Consumer Law) Act 1992 applies the Australian Consumer Law set out in the Competition and Consumer Act 2010 (Cth), schedule 2 (including any regulation under that Act, section 139G) as if it were an ACT Law called the Australian Consumer Law (ACT)
The respondents made in effect an application for interim or other orders to dismiss the application and the other two proceedings on a number of grounds (dismissal application) under section 32 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). This was on the basis that the application and the other two proceedings were together beyond the ACAT’s monetary limit for civil disputes, that they did not meet the procedural requirements for a claim for damages for personal injury under the Civil Law (Wrongs) Act 2002 (Civil Law (Wrongs) Act), that there was no recognised psychiatric disorder to support the claims, and that the ACAT could not hear a claim for trespass to the person, in this case battery, or intentional infliction of harm. The respondents also sought removal of the first respondent as a party on the basis that it did not exist at the relevant time.
After the hearing of the dismissal application on 11 February 2022, some orders were made. Those orders enabled the applicant to file an amended application which he did in a document apparently provided on 8 March 2022 (amended application).[2] Further orders are now made as set out above. These reasons set out the basis for all these orders.
Summary of this decision
[2] The document is headed 11 March 2022 but this does not seem correct
The applicant cannot bring three proceedings as civil dispute applications in relation to the same facts and dispute, each claiming the ACAT monetary limit of $25,000. Orders made on 11 February 2022 required in effect that there be one proceeding limited to the ACAT’s monetary limit.
The applicant can bring a claim for trespass to the person, in this case battery, in the ACAT.
As the applicant under the amended application now does not bring any claim for personal injury, the issues of the application of the Civil Law (Wrongs) Act and the need for a recognised psychiatric order do not arise. He also does not bring a claim of intentional infliction of harm. The applicant will not be able to further pursue any such claims in these proceedings.
Hearing
On 11 February 2022 there was a hearing in which the respondents sought to dismiss the three proceedings by the applicant because it was argued the tribunal did not have jurisdiction (dismissal application hearing). The applicant provided applicant submissions on jurisdiction. The respondents provided respondents submissions for dismissal on jurisdiction grounds dated 22 December 2021. The applicant and the respondents made oral submissions.
After that hearing the Tribunal made orders that in effect only one proceeding should continue in relation to the dispute and that it would be subject to the $25,000 limit. The applicant was given leave to amend his claim in that proceeding to deal with all the bases for his claim and which would set out the basis for the amount claimed (up to $25,000); itemise each element of the amount claimed; and set out how that amount is calculated. The amended application was also to specify how the claim for battery can be made under Part 4 of the ACAT Act. The amended application was also to specify how the amounts claimed can be made in light of Chapter 5 of the Civil Law (Wrongs) Act. The amended application was also to specify the basis on which the claim was made against the first respondent, Traditional Massage.
The Tribunal ordered that the applicant must give a copy of the amended application to the tribunal and to each other party. Upon receipt of the amended application, the respondents could renew their oral application to dismiss these proceedings, by filing an application for interim or other orders. If no application was made, the tribunal could make further directions in relation to the preparation of this matter for hearing.
As a result of those orders, the applicant now brings only proceeding XD 1022/2021. He has provided the amended application. On the basis of that amended application he makes a claim only on the basis of battery, Australian Consumer Law (ACT), negligence and contract, and does not make any claim for personal injury.
It seems appropriate to set out the reasons for the orders made on 11 February 2022, and to deal with the other issues raised in the dismissal application and to make orders in relation to that application. The respondents formally renewed their dismissal application by an application for interim and other orders dated 30 March 2022, which contained detailed submissions. The orders made above deal with the dismissal application, for the reasons set out below.
Can the applicant bring three proceedings?
The three civil dispute proceedings originally brought by the applicant all arose from the same events. In each proceeding he sought $25,000. The respondents argued at the dismissal application that this was beyond the tribunal’s limited monetary civil dispute jurisdiction in section 18 of the ACAT Act.
There are some key definitions in section 16 of the ACAT Act as follows:
civil dispute means a dispute in relation to which a civil dispute application may be made.
civil dispute application means an application that consists of 1 or more of the following applications:
…
The list which follows is set out in paragraph [24] below.
The basic concept here is of a ‘dispute’, which is not defined. It takes its general meaning of which there are a few, but the most relevant are: “to quarrel or fight about; contest”,[3] and “an argument … the act of disputing or arguing against something or someone; controversy …”.[4] In a legal context ‘dispute’ is a wide term and may involve a number of individual legal issues, claims, defences and grounds of redress.[5] This is confirmed by the fact that it is made clear here that a civil dispute application can consist of one or more of the specific type of applications listed.
[3] Macquarie Dictionary
[4] The New Shorter Oxford English Dictionary
[5] Breeze Mr Pty Ltd v Body Corporate for Bay Village Community Title Scheme33127 [2021] QSC 263 at [22]-[24]; Ellerine Bros.v Klinger [1982] 2 All ER 737
Section 18 then provides:
$25 000 limit on civil dispute applications
(1) A civil dispute application cannot be made to the tribunal for an amount greater than the tribunal’s jurisdictional limit, unless section 20 (Abandoning excess to come within jurisdiction) or section 21 (Jurisdiction by agreement—amounts over $25 000) allows the application to be made.
(2) The tribunal’s jurisdiction is limited to—
(a)civil dispute applications claiming amounts of not more than $25 000; or …
‘Civil dispute application’ at the beginning of section 18(1) takes the defined meaning provided by section 16. This involves a dispute that is a quarrel, disagreement, or controversy, which can involve a number of legal claims and grounds of redress, and one or more of the specific applications listed.
This is further confirmed by section 18(2)(a) which states that the ACAT jurisdiction is limited to civil dispute applications claiming not more than $25,000. This again picks up the definition in section 16. It is clear that a number of legal claims and specific applications can make up the dispute, and the civil dispute application, which is subject to the limit in section 18.
This has generally been the way the tribunal has interpreted the limitation.[6]
[6] Bolaram v Australian Capital Territory [2020] ACAT 108 at [2] and [8]; Dirkis v Public Trustee and Guardian [2021] ACAT 30 at [2] and [83]
To argue that the monetary limit applies to each legal basis for a claim, and that separate applications can be made for each legal basis and claim the full limit, would mean that in relation to many disputes and civil dispute applications, more than $25,000 could be claimed and granted. In many cases a claim can be made under a number of torts, contract and the Australian Consumer Law (ACT). This case is an example. This approach is not consistent with the terms of sections 16 and 18.
Therefore, on 11 February 2022, the Tribunal ordered in effect that the damages sought by the applicant be reduced to $25,000 and contained in one proceeding, that is one civil dispute application. This proceeding can make claims on a number of bases, for a number of remedies, and involve a number of the specific applications listed, but must be within the monetary limit, and the amended application now does so.
Can the tribunal hear a claim in trespass to the person, in this case battery?
The respondents argued in the dismissal application that the ACAT had no jurisdiction to hear a claim for trespass to the person, including battery, or intentional infliction of harm. The amended application now only refers to battery, so this discussion focusses on this. There is no longer a claim for intentional infliction of harm. The argument of the respondents was based on the terms of sections 15, 16, and 17 of the ACAT Act, which I now consider.
It is important to note that the tribunal has no inherent jurisdiction. The only jurisdiction it has is that provided by legislation. It is necessary to find legislation which supports the applicant’s claims. Section 9 makes this clear by providing that a person may apply to the tribunal if an authorising law provides that the application may be made.
Section 17 provides that a person may make a civil dispute application to the tribunal. This right is subject to the monetary limit in section 18, which is discussed above.
Section 16(1) defines ‘civil dispute application’ to mean:
…an application that consists of 1 or more of the following applications:
(a) a contract application;
(b) a damages application;
(c) a debt application;
(d) a goods application;
(e) a nuisance application;
(f) a trespass application;
(g) an application for a debt declaration;
(h) an application for a common boundaries determination;
(i) an application for an order under Australian Consumer Law (ACT)
(j) an application stated to be a civil dispute application in an authorising law.
Some of these terms are themselves defined in section 15. As noted above, the applicant does bring his claim as a contract application.[7] This is defined to mean “an application in relation to a contract, and includes an application for damages for breach of contract”. There is no basis raised by the respondents for thinking this claim cannot be pursued. He also brings it under the Australian Consumer Law (ACT).[8] There is also no basis raised by the respondents for thinking this claim cannot be pursued.
[7] Amended application at [2], [37], [134]-[136]
[8] Amended application at [2], [31]-[35], [106]-[117]
The key definition is:
damages application means an application for damages for negligence or for any other tort except nuisance or trespass.
‘Negligence’ is not defined in the ACAT Act or the Legislation Act 2001 (Legislation Act). It takes its general meaning as “an action in tort the elements of which are: the existence of a duty of care; breach of that duty; and reasonably foreseeable damage caused by the breach of duty”.[9]
[9] Lexis Nexis, Concise Australian Legal Dictionary (6th edition, 2021)
‘Tort’ is also not defined and takes its general meaning as:
a civil right of action arising independently of contract, restitution, crime or equity. Torts serve to protect a person’s interest in his or her bodily security, tangible property, financial resources, or reputation.[10]
[10] Lexis Nexis, Concise Australian Legal Dictionary (6th edition, 2021)
The applicant brings a claim in negligence.[11] There is no basis raised by the respondents for thinking this claim cannot be pursued, though as noted below there were issue raised if the applicant claimed for personal injury. The applicant has now stated that no claim is made for personal injury as a result of negligence.[12]
[11] Amended application at [2], [36], [118]-[133]
[12] Amended application at [40]-[41], and see paragraph [46] below
A ‘nuisance application’ is defined as “an application for relief for nuisance”. ‘Nuisance’ is not further defined and generally means “an interference with a public or private interest”, and in the context of a tort “an unlawful interference with a person’s use or enjoyment of land, or of some other right over it, or in connection with it”.[13]
[13] Lexis Nexis, Concise Australian Legal Dictionary (6th edition, 2021)
A ‘trespass application’ is defined as an “application for relief for trespass to land”. ‘Trespass’ is not further defined. Generally trespass can be to land, referred to here, which means “the intentional or negligent act of an individual which directly interferes with another individual’s exclusive possession of land without lawful justification”.[14] There is also trespass to goods. And relevantly here trespass to the person, which is “the infringement of a plaintiff’s rights in relation to his or her body by the direct interference of another without lawful justification”. There are generally three forms of trespass to the person, assault, battery and false imprisonment.[15] It is these definitions which form the basis of the respondents’ argument.
Competing meanings
[14] Lexis Nexis, Concise Australian Legal Dictionary (6th edition, 2021)
[15] Lexis Nexis, Concise Australian Legal Dictionary (6th edition, 2021)
There are two conflicting positions as to whether a damages application includes a claim of trespass to the person, such as battery. The respondents argue that in the definition of ‘damages application’ (set out at paragraph [26] above), the exclusion of trespass extends to all forms of trespass. The definition of ‘damages application’ in effect should be read as: damages application means an application for damages for negligence or for any other tort except the tort of nuisance or the tort of trespass. A trespass application can be made in relation to trespass to land. But there is no category of civil dispute application which therefore includes trespass to the person, or indeed goods. So the ACAT has no jurisdiction in relation to trespass to the person claims.
The applicant argues that in the definition of damages claim, the exclusion of trespass only extends to those trespass claims included in the definition of trespass application, that is only extends to claims for trespass to land. Trespass to the person is not picked up by the exclusionary phrase, and is caught by the phrase “any other tort” and the ACAT does have jurisdiction. The definition of ‘damages application’ in effect should be read as: damages application means an application for damages for negligence or for any other tort except a nuisance application or a trespass application.
Plain meaning
It is clear that “any other tort” in the definition of damages application in section 15 includes trespass to the person, including battery. The key question is therefore what does “except … trespass” mean. On a plain or literal reading of these words, trespass means the common law concept, the respondents’ position.
Context
But the context needs to be taken into account. The definition here is of ‘damages application’ which “means an application for negligence and any other tort”. Both these phrases refer expressly to an application. This suggests that the phrase ‘except nuisance or trespass’ means “except for [a] nuisance [application] or [a] trespass [application]”.
However, as shown in the previous paragraph, if this was the policy position it could easily have been made clear. Further where a word is, or in this case words are, used consistently in legislation they should be given the same meaning; but “where a legislature could have used the same word [or words] but chose to use a different word, the intention was to change the meaning”.[16] It is possible that by expressly using just the term trespass rather than trespass application that something other than a trespass application is meant.
[16] DC Pearce and RS Geddes, Statutory Interpretation in Australia (8th edition, 2014) at [4.6]. In Oliver Jones, Bennion on Statutory Interpretation (6th edition, 2013), page 1034 the presumption is described as that the “same words [are] to be given the same meaning” and “different words [are] to be given different meanings”.
But section 157 of the Legislation Act provides: “If an Act or statutory instrument defines a term, other parts of speech and grammatical forms of the term have corresponding meanings”. In the definition the use of ‘damages application’ and then “application for damages” suggests that the term nuisance and trespass are simply another form of the defined terms ‘nuisance application’ and ‘trespass application’.
Further if ‘nuisance’ in the definition of damages application means the tort of nuisance this has a very clumsy operation. The definition of ‘nuisance application’ provides for such a claim. There is in effect therefore no exclusion of the common law concept at all. Rather there is simply a need for someone claiming nuisance to make a nuisance application rather than a damages application. This suggests that what the exception in the definition of damages application is concerned with is the type of application, rather than to prevent claims for particular torts. If this approach is applied to trespass in the exception in the definition of damages application, this means there is simply a need for someone claiming trespass to land to make a specific trespass application, leaving persons wanting to make a claim for trespass to the person able to make a damages application. On this basis the purpose of the exception may be to require people making a claim in relation to land to specify this.
Somewhat surprisingly there is no use of the terms ‘trespass application’, or ‘nuisance application’, in the ACAT Act. This weakly suggests that the use of trespass and nuisance in the exclusion clause is a use of the defined terms. Perhaps it was thought these defined terms might be useful in delegated legislation; they are used in rule 16 of the ACT Civil and Administrative Tribunal Procedures Rules 2020. A rational basis for these categories may be, as noted at the end of paragraph [38] above, that they relate to land matters, which might have particular considerations, and if so this supports the applicant’s position.
The position is confused, but in my view there is a reasonable argument that the correct reading of the definition is: “damages application means an application for damages for negligence or for any other tort except [a] nuisance [application] or trespass [application]”.
Purpose
Further, and importantly, section 139 of the Legislation Act provides that in working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. Section 139 operates where there are at least two meanings. As discussed, in my view here there are two possible meanings.
The presentation speech for the Bill which became the ACAT Act set out the reasons for that Act, and relevantly stated:
In addition, the government has decided to include the small claims jurisdiction in the transfer of functions, as stakeholders put forward a convincing case for its inclusion in the consolidated tribunal. The transfer of the small claims jurisdiction is an attractive option as it does not fit well within the broader civil jurisdiction of the Magistrates Court. The claims procedure is different, and hearings vie for priority with more substantial criminal and other matters. Incorporation within a consolidated tribunal provides the possibility of enhancing access to justice for small civil matters. It will also provide a better fit as a one‑stop shop for a range of associated claims presently associated with residential tenancy, building disputes and utility matters.
The bill I am tabling today will deliver a consolidated tribunal that will be able to meet each of the problems I have outlined above. The bill establishes a single tribunal to be called the ACT Civil and Administrative Tribunal. The new law provides for common provisions for the commencement of actions, tribunal procedures and powers. The new law gives the tribunal its civil law jurisdiction.[17]
[17] ACT Hansard, 8 May 2008, page 1574 at 1577-1578. This can be had regard to under the Legislation Act, sections 141 and 142, see especially table 142, item 5
This suggests that the policy or purpose of the ACAT Act was to provide for small claims generally to be made in the tribunal. There was no policy expressed here, or anywhere else that I can find, of removing trespass to the person claims (and trespass to goods claims), and only such claims, from the category of small claims.[18] No rational policy basis for doing so was put forward by the respondents. I can see none. It might be said that trespass to the person claims can raise complex issues which should remain in courts, but so might all the other specific forms of civil dispute applications which can clearly be brought in the ACAT. Requiring such claims to be brought in the Magistrates Court would not enhance access to justice, which is said in the presentation speech to be the purpose of these provisions. As noted, section 139 of the Legislation Act states that an interpretation that would best achieve the purpose of the Act is to be preferred. In my view applying such a purposive construction as required by section 139 of the Legislation Act the exclusion phrase in the definition of damages application means except a nuisance application or a trespass application.
[18] The ACT Standing Committee on Legal Affairs (performing the duties of a Scrutiny of Bills and Subordinate Legislation Committee) in its Scrutiny Report (10 June 2008) indicated at page 2 that there was no explanation as to why trespass was excluded.
On this basis, in my view, the applicant can pursue his claim for trespass to the person, that is battery, as a damages application within a civil dispute application in the ACAT.
Do the procedural requirements of the Civil Law (Wrongs) Act apply?
The respondents also argue that the claims were for personal injury including mental harm and were therefore subject to the procedural requirements in chapter 5 of the Civil Law (Wrongs) Act as discussed in Maher v The Owners – Units Plan No. 3995.[19] Further it was argued that any mental harm claim requires proof of a recognised psychiatric disorder.
[19] [2021] ACAT 110
The amended application now states that there is no claim for bodily injury, or mental or nervous shock.[20] Therefore it is not a personal injury claim for the purposes of the Civil Law (Wrongs) Act.
[20] Amended application at [40]-[41]
The amended application notes that battery is actionable per se without proof of damages. This does seem to be correct. Rosemary Balkin and James Davis state:[21] “Battery, like all suits in trespass, is actionable per se, without proof of damage.” They do go on to state that: “Despite the doubt as to whether there is battery when the contact merely injures feelings without causing physical harm, the courts can award additional damages on account of insult or injury to feelings for a battery which has also caused physical harm”. This formulation suggests significant limitations on the applicant’s claim, but that does not of itself suggest that the tribunal does not have jurisdiction.
[21] RP Balkin & J LR Davis, Law of Torts (Butterworths, 2013) at [3.14]
Negligence requires proof of damage and given that there is no claim for personal injury this will have a significant impact on this claim.
Compliance with the orders
The earlier orders stated that the applicant must: set out the basis for the amount claimed (up to $25,000); itemise each element of the amount claimed; and set out how that amount is calculated.
The applicant has purported to do this in the amended application. But this is unclear in a number of areas. These issues will need to be clarified in the preparation for the hearing.
The earlier orders also provided that the amended application must specify the basis on which the claims are made against the first respondent, Traditional Massage. No attempt has been made to do so. On the basis of the dismissal application in relation to this issue, and the arguments of the respondents, the first respondent will therefore be removed as a party.
There will shortly be a directions hearing to make further orders to prepare this matter for a hearing.
………………………………..
Senior Member R Orr QC
| Date(s) of hearing: | 11 February 2022 |
| Applicant: | In person |
| Counsel for Respondents: | K Skelton |
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