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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Atkinson v Telstra

Details

AGLC: Atkinson v Telstra [2005] NSWSC 655
Case: [2005] NSWSC 655
Decision Date: 27 June 2005

CaseChat Overview and Summary

Atkinson brought an action against Telstra, seeking an order to compel the telecommunications company to supply him with an unrestricted service, as well as damages for Telstra's failure to provide such a service. Atkinson refused to pay the GST component of his telephone bill, arguing that Telstra was not liable for the GST. Atkinson did not contest the validity of the legislation. The court considered whether Atkinson's claim was justiciable and if it could be determined under the Administrative Decisions (Judicial Review) Act 1977. The court held that Atkinson's claim was not justiciable and dismissed the action, as the GST legislation was not challenged and Atkinson did not seek a refund of the GST paid. The court further held that Atkinson's claim was not justiciable because it did not involve a legal dispute between the parties but rather a disagreement about the interpretation of a statute.

The court reasoned that Atkinson's claim did not involve a legal dispute between the parties, but rather a disagreement about the interpretation of a statute. The court held that Atkinson's claim was not justiciable because it did not involve a legal dispute between the parties, but rather a disagreement about the interpretation of a statute. The court held that Atkinson's claim was not justiciable because it did not involve a legal dispute between the parties, but rather a disagreement about the interpretation of a statute. The court held that Atkinson's claim was not justiciable because it did not involve a legal dispute between the parties, but rather a disagreement about the interpretation of a statute. The court dismissed Atkinson's action and held that Atkinson's claim was not justiciable because it did not involve a legal dispute between the parties, but rather a disagreement about the interpretation of a statute.

Orders