Bibin v Mainfreight International Pty Ltd - [2016] NSWCATCD 70

Civil and Administrative Tribunal

New South Wales

Case Name:	Bibin v Mainfreight International Pty Ltd
Medium Neutral Citation:	[2016] NSWCATCD 70
Hearing Date(s):	17 June 2016
Date of Orders:	12 August 2016
Decision Date:	12 August 2016
Jurisdiction:	Consumer and Commercial Division
Before:	P French, General Member
Decision:	1. The applicant is granted leave to amend his claim. 2. The respondent’s application for the summary dismissal of the application because the Tribunal lacks jurisdiction to deal with it is dismissed on the basis that this application is misconceived. 3. The application is dismissed on the basis that it is lacking in substance.
Catchwords:	CONSUMER CLAIM – jurisdiction – where total value of claim exceeds prescribed amount – whether claim arises in Commonwealth admiralty jurisdiction –consumer guarantee - due care and skill
Legislation Cited:	Fair Trading Act 1987 Australian Consumer Law Civil and Administrative Tribunal Act 2013
Cases Cited:	Poat v Consumer Trader and Tenancy Tribunal [2004] NSWSC 947 Prestige Residential Marketing Pty Limited v A & M Short Investments Pty Limited [2005] NSWCS 485 IK Chemists Pty v CHOF4 Artarmon Pty Ltd [2015] NSWCATAP 144 Gartrell v Roth [2015] NSWCATAP 182 Qantas Airways Limited v Lustig [2015] FCA 253
Category:	Principal judgment
Parties:	Alexandre Bibin (applicant) Mainfreight International Pty Ltd (respondent)
Representation:	Alexandre Bibin, in person Rowan Cook, NSW Branch Manager, for the Respondent
File Number(s):	GEN 16/16364
Publication Restriction:	Nil

REASONS FOR DECISION

Introduction

This is an application to the Tribunal pursuant to Part 6A of the Fair Trading Act 1987 (FT Act) by Alexandre Bibin (the Applicant) for Orders pursuant to section 79N of the FT Act that would require Mainfreight International Pty Ltd (the Respondent) to provide him with relief principally in the form of compensation and relief from payment arising from an alleged breach of contract by the Respondent which he had contracted to take delivery of a shipping container of building materials which had arrived from China at Port Botany, unload it, and deliver its’ contents to him with due care and skill. This application was made to the Tribunal on 4 April 2016 (the Application).
For the reasons that are set out following the Tribunal has decided that the application must be dismissed on the basis that it is lacking in substance. The Applicant has not established that the Respondent breached the contract by failing to act with due care and skill causing damage to the building materials. It emerged from the evidence, on the balance of probabilities, that the building materials were damaged prior to, or at the time of despatch, or on the high seas en-route to Australia. The Respondent has no connection with the loading of the building materials in China or their transport to Australia.

Procedural history

The Application was first listed before the Tribunal on 29 April 2016. The Applicant attended that listing, but there was no attendance on behalf of the Respondent. It appears that the Tribunal was satisfied that…

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.

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Details

Case: [2016] NSWCATCD 70
Decision Date: 12 August 2016

CaseChat Overview and Summary

Bibin brought a consumer claim against Mainfreight International Pty Ltd in the Australian Small Business and Family Enterprise Ombudsman. The dispute involved the total value of Bibin's claim exceeding the prescribed amount and whether the claim arose in the Commonwealth admiralty jurisdiction. Bibin's claim was based on alleged breaches of consumer guarantees under the Australian Consumer Law, specifically that Mainfreight had not exercised due care and skill in handling Bibin's goods. Mainfreight argued that the Tribunal lacked jurisdiction over the matter due to the value of the claim and its admiralty nature. Bibin sought leave to amend his claim to better reflect the scope and value of the alleged breaches.

The court needed to determine if the Tribunal had jurisdiction over the matter and if Bibin's claim was substantive enough to proceed. The court considered the value of the claim and whether it fell within the Commonwealth admiralty jurisdiction, which could potentially transfer the matter to the Federal Court. Additionally, the court had to assess the sufficiency of Bibin's claim in terms of its adherence to the statutory requirements and the evidence presented.

The court found that Bibin's claim did not fall within the Commonwealth admiralty jurisdiction, affirming the Tribunal's jurisdiction over the matter. The court also concluded that the claim was lacking in substance, primarily due to insufficient evidence and a failure to properly particularise the breaches of consumer guarantees. The court dismissed Mainfreight's application for summary dismissal, stating it was misconceived, and granted Bibin leave to amend his claim. However, ultimately the application was dismissed due to its lack of substance.

The court granted Bibin leave to amend his claim to better reflect the scope and value of the alleged breaches. The court dismissed Mainfreight's application for summary dismissal as misconceived and dismissed Bibin's application on the basis that it was lacking in substance. The court did not transfer the matter to the Federal Court, maintaining that the Tribunal had the requisite jurisdiction over the consumer claim.

Orders

Orders of the court

1. The applicant is granted leave to amend his claim.

2. The respondent’s application for the summary dismissal of the application because the Tribunal lacks jurisdiction to deal with it is dismissed on the basis that this application is misconceived.

3. The application is dismissed on the basis that it is lacking in substance.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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