Atkinson v Telstra

[2005] NSWSC 655

CITATION:	Atkinson v Telstra & Anor [2005] NSWSC 655
HEARING DATE(S):	27/06/05
JUDGMENT DATE :	27 June 2005
JUDGMENT OF:	White J
DECISION:	1. Order that the proceedings be dismissed; 2. Plaintiff to pay the defendants' costs; 3. Exhibits may be returned after 28 days.

CATCHWORDS:	TAXATION - Telecommunications - Application to compel Telstra to supply plaintiff with an unrestricted service - Plaintiff refused to pay GST component of his telephone bill - Plaintiff claimed that Telstra was not liable for GST - No challenge to validity of legislation - Claim dismissed.
LEGISLATION CITED:	Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) The New Tax System (Goods and Services Tax) Act 1999 (Cth) Judiciary Act 1903 (Cth) A New Tax System (Goods and Services Tax Imposition - Customs) Act 1999 (Cth) A New Tax System (Goods and Services Tax Imposition - Excise) Act 1999 (Cth) A New Tax System (Goods and Services Tax Imposition - General) Act 1999 (Cth) A New Tax System (Goods and Services Tax Imposition - Recipients-Customs) Act 2005 (Cth) A New Tax System (Goods and Services Tax Imposition - Recipients - Excise) Act 2005 (Cth) A New Tax System (Goods and Services Tax Imposition - Recipients - General) Act 2005 (Cth) Taxation Administration Act 1953 (Cth)
CASES CITED:	Dooney v Henry (2000) 174 ALR 41; 74 ALJR 1289
PARTIES:	George Atkinson v Telstra Corporation & Anor
FILE NUMBER(S):	SC 2556/05
COUNSEL:	Plaintiff: In Person Defendant: N Perram
SOLICITORS:	Plaintiff: N/A Defendant: Henry Davis York

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

WHITE J

Monday, 27 June 2005

2556/05 George Atkinson v Ziggy Switkowski & Anor

JUDGMENT

1 HIS HONOUR: The plaintiff seeks orders restraining the second defendant, Telstra Corporation Limited, and the first defendant, Mr Switkowski, who is named as Chief Executive Officer of the second defendant, from “intrusive and officious behaviour as the supplier of a telephone land line to the plaintiff’s place of residence”.

2 He also seeks an order requiring the defendants to supply to him an unrestricted telephone service as required under the universal service obligation imposed by the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth).

3 Until 13 April 2005, the plaintiff received standard telephone services from Telstra. Telstra claims that the plaintiff is in default in paying his accounts. He has refused to pay the GST component of Telstra’s accounts. Telstra separately itemises in its accounts how much of its charges are referable to GST.

4 Telstra, as the supplier of the telephone service, is liable under s 9-40 of The New Tax System (Goods and Services Tax) Act 1999 (Cth) (the “GST Act”) to pay GST on taxable supplies which it makes.

5 Telstra is obliged under the Telecommunications (Consumer Protection and Service Standards) Act 1999 to ensure that standard telephone services are reasonably accessible to persons, including the plaintiff. That obligation follows from a combination of ss 12A, 12C and 12D of that Act, pursuant to which Telstra is the primary universal service provider for an area in respect of any service obligation, unless the Minister, by determination published in the Gazette, has specified a different provider. It is not suggested in this case that the Minister has done so.

6 By subsection 9(I) and (2) of that Act it is required to ensure that, amongst other things, standard telephone services are “reasonably accessible” to all persons in Australia, including the plaintiff, on an equitable basis. However, that does not mean that Telstra is required to provide standard telephone services to people who do not pay their bills.

7 Telstra says that the plaintiff is in default in paying his accounts. The plaintiff denies this contention. He denies that Telstra is entitled to charge a rental line fee for periods when he does not use the telephone. There is no substance to that claim. The charge is made for the availability of the telephone facility, and I see no reason why it cannot be imposed.

8 The plaintiff’s principal point was that he has paid all the money which he owes to Telstra because, he says, Telstra cannot pass on to him any liability to pay GST in respect of the supplies which it makes to him. This is so, because, according to the plaintiff, the legislation which imposes goods and services tax is invalid or ineffective, and Telstra has no such liability.

9 No notices have been given to the Attorney-General under s 78B of the Judiciary Act 1903 (Cth). In argument before me the plaintiff said that he did not place reliance on any Constitutional ground. This must include his contention that the legislation is invalid as it did not command popular support. I can therefore leave aside his contentions that the Act is invalid.

10 The ground on which he claims that Telstra is not liable for GST and therefore cannot pass a charge for GST on to him, is that the Australian Taxation Office is not a legal person. I assume the correctness of that contention. It was assumed to be correct by Callinan J in Dooney v Henry (2000) 174 ALR 41; 74 ALJR 1289 at paragraphs 6 and 7.

11 However, in this case, as in that case, the question of whether the Australian Taxation Office has legal personality is irrelevant to the operation of the legislation. Charges for GST are imposed by s 3 of a series of Acts called, A New Tax System (Goods and Services Tax Imposition - Customs) Act 1999, A New Tax System (Goods and Services Tax Imposition - Excise) Act 1999, A New Tax System (Goods and Services Tax Imposition - General) Act 1999, A New Tax System (Goods and Services Tax Imposition - Recipients-Customs) Act 2005, A New Tax System (Goods and Services Tax Imposition - Recipients - Excise) Act 2005, and A New Tax System (Goods and Services Tax Imposition - Recipients - General) Act 2005.

12 GST is payable to the Commissioner (see section 7-15, section 33-3, section 33-5 and section 33-10 of the GST Act). The Commissioner also has functions under the GST Act as well as under the Taxation Administration Act 1953 (Cth).

13 The question of whether or not the Australian Taxation Office has legal personality is irrelevant to the imposition of the tax, and to the functions of the Commissioner. It is irrelevant to the obligation of Telstra to pay GST on its supplies. It is irrelevant to the ability of Telstra to pass on to its customers the amount of GST for which it is liable.

14 I am satisfied, therefore, that the plaintiff is in default in paying his accounts. Since 13 April, 2005, Telstra has supplied him with a restricted service, whereby he can receive incoming telephone calls but not make outgoing calls, except to the emergency line with the 000 number, or to various Telstra customer service numbers. He can make outgoing calls with a card called a Telstra Phone Away card, for which I assume he would have to pay. Telstra is not currently charging a monthly line rental in respect of this restricted service.

15 I see no basis for saying that Telstra is in breach of its universal service obligation in restricting the plaintiff to those services, following his failure fully to pay his accounts. It is not required to provide him with a full service, when he has chosen not to pay his bills, because he chooses to advance a misconceived argument about the GST legislation.

16 The plaintiff pointed to the fact that other suppliers, including an electricity supplier, have agreed to continue to supply him with goods or services without requiring him to pay the GST component of the bills. He pointed to an arrangement which he made with Energy Australia where such an arrangement was made. That arrangement was arrived at to resolve a dispute on commercial terms, and was made without admissions. Such settlements with third parties cannot affect the rights of the defendants.

17 For these reasons the plaintiff’s claim fails. I order that the proceedings be dismissed and the plaintiff pay the defendants’ costs. The exhibits may be returned after 28 days.

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