Casper v Singtel Optus Pty Limited and Anor
[2013] QDC 255
•15 October 2013
DISTRICT COURT OF QUEENSLAND
CITATION:
Casper v Singtel Optus Pty Limited & Anor [2013] QDC 255
PARTIES:
CASPER, Peter Arthur
(Plaintiff)
v
SINGTEL OPTUS PTY LIMITED (ABN 90 052 833 208) formerly CABLE AND WIRELESS OPTUS formerly OPTUS COMMUNICATIONS PTY LIMITED TRADING AS OPTUS
(First Defendant)
and
Optus Mobile Pty Limited (ABN 65 054 365 696)
(Second Defendant)
FILE NO/S:
DIS 3079/04
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
15 October 2013
DELIVERED AT:
Brisbane
HEARING DATE:
16 – 20th September 2013 inclusive
JUDGE:
Ryrie DCJ
ORDERS:
1. Claim dismissed.1.
2. I will receive written submissions as to costs (maximum 6 pages) after the expiration of 28 days from the date of publication of this judgment unless the parties otherwise agree. 2.
CATCHWORDS:
CONTRACT – BREACH OF CONTRACT – where Plaintiff alleges that an oral agreement was reached with the 2nd Defendant on the 17th December 1996 with respect to 6 mobile telephone numbers– whether such an agreement was formed – whether the 2nd Defendant breached this agreement
BREACH OF CONTRACT – Award of damages – equitable relief
Telecommunications Act 1991 (Cth)
Telecommunications Act 1997 (Cth)
Telecommunications Numbering Plan 1997 (Cth)
Owners of SS ‘Mediana’ v Owners of SS ‘Comet’ [1900] AC 113 – applied
State of New South Wales v Stevens (2012) 82 NSWLR 106 - applied
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 - applied
COUNSEL:
Plaintiff appeared on own behalf
P McCafferty (For the Defendants)
SOLICITORS:
Plaintiff appeared on own behalf
Minter Ellison Lawyers (for the Defendants)
Background
On or about May 1993, Mr Casper, the plaintiff in this matter, reserved 10 consecutive digital mobile telephone numbers 0411 111 110 to 0411 111 119 (each referred to by last digit number only) with Singtel Optus Pty Ltd (1st defendant). On the 6th August 1993, the plaintiff applied for a mobile phone account with Optus Mobile P/L (2nd defendant) (ex 1). At the same time, he also applied for a digital mobile service in respect of 0 and 1 (ex 2). He subsequently applied for a digital mobile service in respect of 2 to 9 inclusive in that same year (ex 3).
By his Statement of Claim, the plaintiff seeks the following relief:
§ In respect of numbers, 3, 4, 5 and 9: the return of the right to use each number, compensation for the loss of that right to use and forfeiture of past and future income derived (by the 1st or 2nd defendants) from each number;
§ In respect of numbers 2 and 6: compensation for the loss of the right to use each number and forfeiture of income derived (by the 1st and 2nd defendants) from each number;
§ An apology from the 1st defendant; and
§ Exemplary damages for the various alleged acts as set out relating to each number
There was no issue at trial between the parties regarding mobile telephone numbers 0, 1, 7 and 8. It was not disputed that the plaintiff had commenced using numbers 0 and 1 for his own use upon activation, which was done at his request. It was not disputed that he had also subsequently activated at his request numbers 7 and 8 which he then transferred to certain members of his family for their use. Therefore, the only numbers the subject of dispute between the parties were 2, 3, 4, 5, 6 and 9. That dispute arose in the context of certain events occurring, set out as follows.
On the 11th October 1996, the 2nd defendant had written to the plaintiff in respect of one of those remaining suspended numbers, number 9. That letter was tendered into evidence (ex 4). The plaintiff replied to that letter (ex 5). It was not disputed at trial that the plaintiff had also received other similar letters from the defendants as it related to the other remaining numbers (2, 3, 4, 5 and 6) although these were not tendered. The 2nd defendant replied (ex 6) to the plaintiff’s letter, which he had written (ex 5). On the 17th December 1996, the plaintiff rang and spoke to Ms Pitt, a customer service officer employed by the 2nd defendant.
The pleadings reveal at paragraph 9.4 and 9.5 the plaintiff’s recollection of the conversations with Ms Pitt on that day. In effect, the plaintiff contends in those pleadings that during the first of two conversations he says he had with the 1st defendant (the 2nd defendant was not joined at the time), he was offered a 2 year suspension for the numbers and he was offered free suspension for four telephone numbers. In regards to the second conversation, the plaintiff pleads that he was advised again by the 1st defendant that the numbers were suspended for two years and that re-activation and suspension or any payment of a reactivation fee would not be required every six months.
The defendants disputes those contentions in its’ points of defence and says that the plaintiff was only ever granted a further 2 year suspension period in respect of numbers 2 and 3 only as long as the plaintiff paid a suspension fee of $5 per month for each of those numbers. The defendant also denies that any 2 year suspension period was granted in respect of the other numbers (4, 5, 6 and 9) as alleged and says that the plaintiff was only ever granted an additional free six month suspension period in respect of those other four numbers.
There was no dispute between the parties at trial that all of the six numbers were subsequently cancelled and reissued to other customers:
§ Numbers 2 and 3 were reissued on or about 29th September 1998.
§ Number 6 was reissued on or about 30th September 1998.
§ Numbers 4, 5 and 9 were reissued on 1st October 1998.
There was also no dispute at trial that the current status of those numbers is as follows:
§ Number 2 has been reissued back to the plaintiff;
§ Number 3 and 5 are currently under the defendants’ control and are not allocated or issued to anyone; and
§ Numbers 4 and 6 are currently issued to other persons who are not currently the defendants’ customers.
It is also not in dispute that the plaintiff is seeking as his primary relief the return of all of six numbers, as evidenced by his willingness at trial to forgo any damages in respect of any of them if all of those numbers were now ordered to be returned to him.
The central issue to be determined at trial
Did the 2nd defendant and the plaintiff orally reach an agreement on the 17th December 1996 to the effect that the plaintiff would be granted a 2 year suspension period in respect of all six numbers?
If the answer to that question is in the affirmative, then it follows that the plaintiff may be prima facie (emphasis added) entitled to relief for damages for breach of contract. Whether he would also be entitled to any equitable relief will be discussed later in these reasons.
In order to determine the central issue in this case, a review of the relevant evidence given at trial together with a careful examination of the tendered documents is necessary. That is because this case must be viewed in the context of the oral evidence given by the plaintiff, taken with the letters and account records which have been tendered at trial, together with the other oral evidence given, in order to make the determination required.
The relevant evidence at trial on this issue
The plaintiff
The plaintiff gave evidence at trial that he had been told and he had understood that an oral agreement had been reached between himself and Ms Pitt (an employee of the 2nd defendant) over the course of two conversations which he said he had with her on 17th December 1996. This oral agreement was that he would be granted a 2 year suspension period in respect of all of the numbers which had previously remained in suspension since 1993 (i.e. 2, 3, 4, 5, 6 and 9). He also gave evidence that he was told by Ms Pitt that he would only be charged a suspension fee of $5 per month in respect of numbers 2 and 3. He also gave evidence however that he had further understood from one of those conversations that he had been given a 12 month (out of the 2 year period) free suspension fee period in respect of numbers 4, 5, 6 and 9 (T1-46).
The plaintiff gave evidence that he did not really anticipate receiving any accounts for any of those discussed suspension fees to be charged as he had not ever received an account for any of those numbers since 1993. Indeed, he stated that the first account he ever received in respect of any of those numbers was in August 1998 (ex 12). He gave evidence that he also received another account in September 1998 (ex 13) which showed that all of the six numbers were still attached or assigned to him which was also indicated in the August account. He therefore believed that those accounts show that all six numbers were still assigned or issued to him for his use at that stage, which was consistent with the agreement which had been reached between himself and Ms Pitt on the 17th December 1996. He stated that after receiving exhibit 13 he was ‘surprised’ so on the 23rd August 1998 he dialled each of the numbers and a different person answered the phone on each occasion. (T1-51)
He stated that he had then made contact with the defendants in order to determine what had happened to his six numbers as he believed that under the agreement reached with Ms Pitt that all six numbers were still supposed to be assigned to him as the two year suspension period granted by her was still running.
The plaintiff gave evidence that he also believed that he should have received notice from the 2nd defendant prior to any cancellation of his numbers by them in any event. He gave evidence that he had received none. He stated that he had received similar notification from them, referring to exhibit 4, and therefore had expected that a letter would have been sent to him prior to any cancellation of his numbers by them.
The plaintiff gave evidence, with reference to exhibits 12 and 13, that those two accounts which he had received in August and September 1998 supports a conclusion being made that all six numbers were still the subject of the agreement reached, in that those numbers were still assigned to him at that stage as evidenced by those accounts.
The plaintiff also referred to exhibit 8 during his evidence to show that the defendants’ assertion that four of those numbers having been cancelled in July 1998 was clearly false because ex 12 and 13 show that those numbers were still assigned to him as evidenced by those accounts.
The plaintiff argued that the defendants had also breached its’ obligations under the Telecommunications Numbering Plan 1997 (Cth) (‘Numbering Plan’) by cancelling all of his numbers prior to the expiry of the 2 year suspension period as agreed with Ms Pitt (see Clause 10.1 (4) (b) and (c)) and again, the reissuing of those numbers to other customers prior to the time allowed under the Plan (10.12(3)).
During cross-examination, the plaintiff was taken to the various documents marked as exhibits 1 to 11. The plaintiff accepted that he had applied for a mobile account with the 2nd defendant (ex 1) and for a digital service (ex 2) in respect to numbers 0 and 1. He also admitted that he had applied to the 2nd defendant for multiple mobile number services in respect to numbers 2 to 9 inclusive (ex 3). The plaintiff remarked during his evidence in chief that even though the date on exhibit 3 was in December, he had in fact received assignment of numbers 2 to 9 inclusive about a week after he had received assignment of numbers 0 and 1.
The plaintiff conceded during evidence that when he signed exhibit 1 he did not read the terms and conditions contained on the back of the document. He admitted that he had just signed the front of that document without reading overleaf.
The plaintiff also agreed that a series of correspondence had been exchanged between the parties prior to the 17th December 1996 conversations taking place with Ms Pitt, as evidenced by exhibits 4, 5 and 6. He admitted during cross-examination that he had been quite happy to pay the suspension fee of $5 per month in respect to the numbers 2 and 3 (T1-73). The plaintiff also accepted that he had been advised in exhibit 6 that he would need to contact the 2nd defendants’ customer service after the relevant additional six month period had expired in order to let them know what action was to be taken in relation to four of the mobile numbers, which was accepted by the plaintiff during his evidence, as referring to numbers 4, 5, 6 and 9. (T1-75). He stated however that he was not told that he had to make such contact by Ms Pitt during his conversations with her.
Ms Pitt and Mr Bolton
Ms Pitt gave evidence regarding the 17th December 1996 conversations. Not surprisingly she was unable to recall the content of the conversations or even her contact with the plaintiff.
She gave evidence however that it was her normal business practice to take notes while speaking to customers and that the notes contained in exhibit 8, to which she was referred, would have been an instruction that she had given to a customer service representative to record on her behalf (T2-65).
During cross-examination, Ms Pitt and indeed Mr Bolton both accepted that exhibits 12 and 13 showed that all six numbers were still appearing on those accounts at the time those accounts were issued. Mr Bolton however was not prepared to accept that this meant that those six numbers were all still suspended at that time as suggested. Ms Pitt accepted that even though she didn’t know the intricacies of the billing system, it appeared to her as if all six numbers were still assigned or associated with the plaintiff’s account at that time (T2-76).
Findings
In order that my findings may be readily understood, I intend to refer to the relevant documentation and/or evidence available at trial which I have taken into account when coming to the following conclusions.
Numbers 2 and 3
After a careful examination of the documentation tendered and having careful regard to the evidence given by the plaintiff and that of the other witnesses, I find that an oral agreement was reached between the plaintiff and Ms Pitt on the 17th December 1996 at which time the plaintiff was granted a 2 year suspension period in respect of numbers 2 and 3.
I find that part of that agreement in respect to those numbers was that the plaintiff would pay the relevant $5 per month suspension fee in respect of both of those numbers during the whole of that 2 year suspension period. This is evidenced as much by the clear admission of that fact by the 2nd defendant in exhibit 8. It is also evident in the notes taken of the conversation(s) which took place on the 17th December 1996 (page 4 of ex 8) that the plaintiff had been granted a 2 year suspension period in respect of numbers 2 and 3 provided he paid for the relevant suspension fee per month in respect of both numbers. Due to a billing oversight, the defendants failed to bill the plaintiff as it was entitled. Accordingly, no tender of monies was made by the plaintiff until he received the August 1998 account seeking suspension fees for numbers 2 and 3 notwithstanding that he knew that the agreement which had been reached was that he was required to pay the appropriate suspension fees during the whole 2 year suspension period.
The defendants submit that even if it is determined that the defendants had breached that agreement by cancelling numbers 2 and 3 before the expiration of the 2 years suspension period, the relevant tariffs and/or standard agreement applicable to the contract, specifically Part B Clause 11.3 of exhibit 11, would have the effect of circumventing any claim for damages in any event. I am unable to accept that submission as it relates to the Standard Agreement marked exhibit 11. The submission made is premised on a finding of fact that numbers 2 and 3 were cancelled and reissued at a time when that particular Standard Agreement was in effect. Exhibit 11 however only commenced its’ operation on 1 September 1998. Exhibit 7 supports a conclusion that these numbers were cancelled well before they were subsequently re-issued in September 1998. Presumably another Standard Agreement was already in effect as at 1 January 1998 (Ex 17). That document was not tendered into evidence. Exhibits 9 and 10 however provide for a clause not unlike Clause 11.3 of exhibit 11, though not identical. All of the tendered documents (exhibits 9, 10 and 11) limit the defendant’s liability (see Clauses 11 and 14 of exhibit 9, Clauses 13 and 14 of exhibit 10 and Clause 11 of exhibit 11 respectively.
Section 200 Telecommunications Act 1991 (Cth) (repealed) and s 479(2) of the Telecommunications Act 1997 (Cth), which commenced on 1st July 1997, provides that the plaintiff was bound by the terms and conditions of his contract set out in the relevant tariff applicable at the material time (ex 1 and 9). The plaintiff accepted during evidence that he had to apply for and have a mobile account (ex 1) before he could make any request for the subsequent multiple digital services (ex 3). As such, I find that he was bound by the relevant tariff’s terms and conditions applicable to his contract at the time he signed exhibit 1 (see ex 9). This is regardless of the fact that he did not read the terms and conditions at the time he signed exhibit 1 or regardless of his evidence where he claimed that he is not bound by the terms and conditions as he was unaware of those terms and conditions contained on the back of exhibit 1. The defendants gave notice of those terms and conditions, contained on the reverse side of the contract, by including a reference to them, on page 1 ‘Section 4’ of Exhibit 1 directly above where the plaintiff signed. The terms and conditions were also not unusual or surprising for a contract of this kind. Therefore, I find that by signing the contract the plaintiff was bound by the contractual terms and conditions; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165. Even if it ought to have been found that the relevant tariff was in fact ex 10 (which was in force at the time the plaintiff made his request: ex 3) the result is nevertheless the same.
The defendants also referred to other terms contained in the Standard Agreement marked exhibit 11 in its’ submissions. As a matter of completion I shall deal with these briefly. At paragraph 47 of the Outline of Submissions (ex 18) the defendants refer to the defendants’ right to ‘withdraw allocated numbers on not less than one month’s prior notice’. This was not done in respect of numbers 2 and 3 in circumstances where the suspension period of 2 years had not even expired at the time those numbers were ‘withdrawn’ and no such prior notice was given in any event.
The defendants at paragraph 48 also refer to the defendants’ right to disconnect a service at the end of a maximum suspension period of 6 months. However that clause also allows the defendants to extend that suspension period beyond the 6 months, which was in fact what happened here.
Even though I find that the defendants have breached its’ agreement with the plaintiff by cancelling numbers 2 and 3 prior to the expiration of the agreed 2 year suspension period, in the event that it ought have been found that there was no bar to the claim for breach of contract being made by the plaintiff in respect of that breach, I find that the plaintiff has not demonstrated to me in any event that any award of damages for breach of contract, other than nominal damages, is warranted in this case.
As evidenced by exhibit 8, page 3, upon discovering their ‘error’, the defendants offered to the plaintiff two other ‘golden numbers’ to replace numbers 2 and 3. It offered to waive the administrative fee, in the amount of $100, and apply a credit to the plaintiff’s account in the amount of $100 per service. That offer was rejected however by the plaintiff. It is also relevant, that even if the defendant’s did in fact have any liability under exhibits 9, 10 or 11, it fulfilled those obligations by the offer which was made to the plaintiff, an offer which he choose not to accept.
The plaintiff argued that he believed that he had reached a new agreement with the defendants when he spoke to Ms Pitt and therefore he was not bound by any tariffs and/or Standard Agreement that was in force at the relevant time. I cannot accept that submission. The agreement reached between the plaintiff and Ms Pitt was clearly a mutually agreed variation of the existing contract which had been on foot since 1993.
The defendants have also, aside from the offer already referred to which it made to the plaintiff, subsequently reissued number 2 to the plaintiff. Number 3 is still being held in abeyance by the defendants pending resolution of this litigation (Mr Bolton’ evidence).
It is accepted by me that the plaintiff has attached significant sentimental value to the worth of these numbers insofar as he had wanted to transfer them to his sons when they had gotten old enough. This was a common thread in his evidence and the documentation available that show that he had only ever intended to keep these numbers for his twin sons’ personal use.
The plaintiff referred to having been offered from other persons unknown, significant sums of money for the whole set of the 6 numbers, thus implying that all of the numbers were of considerable commercial worth to him (T1-60). I find that it is difficult for me to accept this submission in light of the plaintiff’s own evidence regarding the significance he has personally attached to the idea of retaining those numbers for the sole personal use by members of his family. Nor was there any tangible evidence tendered to support that the numbers, taken as a whole, were of any commercial value to the extent which the plaintiff stated. It is also at odds with his own actions, namely the transfer of numbers 7 and 8 to two family members which is consistent with his stated desire over many years that he had wanted to keep all of the numbers for his family’s sole use.
Accordingly, I find that that any assessment of damages awarded in respect of numbers 2 and 3 should be nominal only. That amount is assessed as $100.00[1]
[1]In State of New South Wales v Stevens (2012) 82 NSWLR 106 a sum of $100.00 dollars was awarded as nominal damages
In awarding nominal damages, it is important to remember however that it is not the amount that counts but rather the award is to recognize that there has been an infringement of a legal right that does not warrant any real damages; Owners of SS ‘Mediana’ v Owners of SS ‘Comet’ [1900] AC 113.
Having found that nominal damages are the appropriate remedy, it follows that specific performance cannot be ordered.
In order that this may be more readily understood, I shall briefly deal with this issue. It is immediately apparent that in circumstances where damages are an adequate remedy, equitable relief should not be ordered. In any event, as a general rule, equity will not specifically enforce that which cannot (now) be done. In this case, the obligation which arose under the agreement between the plaintiff and Ms Pitt was that the defendants would allow the plaintiff to retain the beneficial use of numbers 2 and 3 unhindered during the 2 year suspension period agreed upon. That period has long since elapsed. Indeed, the evidence shows there was no agreement reached at all between the plaintiff and Ms Pitt that he would have thereafter had the right to continue to suspend those numbers indefinitely or even after that particular period had expired.
Accordingly, I make no order as to specific performance.
It is also not appropriate to order mandatory injunctive relief at this point for the reasons already stated.
Numbers 4, 5, 6 and 9
After careful consideration of the documentation tendered and after careful consideration of the evidence given by the plaintiff and the other witnesses, I find that the plaintiff has failed to satisfy me, on the balance of probabilities, that an oral agreement was reached between himself and Ms Pitt in respect of numbers 4, 5, 6 and 9 as alleged. In other words, I find that there was no agreement between the plaintiff and Ms Pitt to the effect that these numbers would also be granted a 2 year suspension period. In coming to that conclusion, I have specifically taken into account exhibits 4 to 8 inclusive and exhibits 12 and 13. I have also carefully considered the evidence given by the plaintiff in the context of this documentation. In addition I have also considered the evidence given by Ms Pitt and Mr Bolton respectively.
I make the following findings.
I find that the plaintiff upon receiving exhibit 4 wrote a letter (exhibit 5) seeking a review of two aspects of exhibit 4: the maximum period of suspension and the total cost of the suspensions. It is clear on the face of exhibit 5 that the plaintiff was happy to pay a $5 per month suspension fee for numbers 2 and 3 if a 2 year suspension period was to be granted to him. It is also clear on the face of exhibit 5 that he also was inquiring whether he would be required to pay a $65 activation fee twice a year for all six numbers or whether it was sufficient for him to contact the defendants every six months requesting continuation of the suspension. It is also clear that on the face of exhibit 5 that the plaintiff was requesting that no suspension fee be paid at all until numbers 4, 5, 6 and 9 all became ‘useable’ (insofar as coverage).
I find the response (exhibit 6) given by the defendants to exhibit 5 is consistent with one of those requests. That letter shows that it dealt with the request which the plaintiff had made regarding numbers 4, 5, 6 and 9. I find that the document shows that the plaintiff was also advised to make contact with Customer Service after the additional six months free suspension period relating to numbers 4, 5, 6 and 9 had expired. I find that document also shows that no reference was made to numbers 2 and 3 in it even though the plaintiff had specifically raised it in his correspondence (exhibit 5).
I find that notwithstanding the plaintiff’s denial to the contrary on oath, that one of the primary reasons why he had rang and spoke to Ms Pitt on the 17th December 1996 was with respect to numbers 2 and 3. I find the plaintiff not only wanted clarification in respect of these numbers but also regarding any $65 reactivation fee that might be imposed every six months and if reactivation was required regarding all six numbers after every six month period.
I find that the plaintiff’s recollection of the oral agreement reached between himself and Ms Pitt on the 17th December 1996 was either incorrect or mistaken. While it is true that Ms Pitt has no independent recollection of the plaintiff or of those conversations, I have no reason to doubt that the notes which were recorded at that time were not accurate, and I find that they reflect what was agreed between the parties (page 4 exhibit 8). Those notes, as recorded by another employee at her instruction, were nevertheless created contemporaneously (dated 17th December 1996) in accordance with the normal business practice. The plaintiff argued that those notes should be rejected because Ms Pitt had no recollection of them and another third party had in fact written them at her direction. That submission however overlooks the fact that those notes cannot be looked at in isolation and must be viewed in the context of the other documents to which I have just referred (and in light of the plaintiff’s own evidence with reference to his pleadings at paragraph 9.4 and 9.5 which I shall deal with shortly).
I find that the notes of the 17th December 1996 confirm that the plaintiff had in fact only called Ms Pitt about numbers 2 and 3 and regarding any question of a $65 charge arising every six months, consistent with the defendants’ proposed maximum 6 month suspension period in respect of all mobile numbers. I find that those two details as recorded in the notes are exactly the same two details which had not been clarified to the plaintiff sufficiently in the letter which had been sent to him by Ms Pitt (exhibit 6) and as such, that is why he rang. I find that those notes are also consistent with exhibits 4 and 5 in that the plaintiff was well aware of the proposed maximum suspension frame of 6 months as it related to all six numbers which was to be adopted by the defendants from that time. I find that the plaintiff was well aware of that proposal as evidenced by his own statement in his correspondence (exhibit 5) in that he had queried whether it would be simply sufficient for him to contact the defendants every 6 months requesting a continuation of the suspension or would he be required to pay a $65 reactivation fee twice a year for each number.
I find that the notes of the 17th December 1996 also confirms that the plaintiff was in fact happy with the letter which he had received from the defendants (exhibit 6) as it related to numbers 4, 5, 6 and 9 which is specifically recorded in those notes. I find that the defendants had again advised the plaintiff in that letter of the need for the plaintiff to contact Customer Service to advise the defendants of the action to be taken with the mobile numbers, a fact he was well aware of. I accept Ms Pitt’s evidence which was to the effect that had any agreement been reached regarding a suspension period of 2 years in respect of numbers 4, 5, 6 and 9, then she would have expected it to have been recorded (T2-69). I have no reason to doubt that evidence in light of the matters to which I have just referred in the aforementioned paragraph of these reasons.
I also find that the notes of the 11th December 1996 (page 4 and 5 exhibit 8) are also consistent with the contents of exhibit 6. Those notes again confirm the requirement placed upon the plaintiff to make contact after the additional free 6 months suspension period expired in order to advise whether he wanted to cancel the numbers or restore them in respect of numbers 4, 5, 6 and 9.
Accordingly, I find that when regard is had to the documents to which I have just referred as a whole, I am unable to be satisfied on the balance of probabilities that the agreement reached between the plaintiff and Ms Pitt extended to all six numbers being granted a 2 year suspension period as stated by the plaintiff.
The documents alone to which I have just referred, do not lend support to such a conclusion being made. In addition to those documents and the findings which I have just made, I find that I am unable to accept the plaintiff’s evidence on this issue. The evidence which he gave at trial of the two conversations which he said he had with Ms Pitt on the 17th December 1996 is inconsistent with his own pleadings.
A careful and liberal reading of the transcript commencing at page 1-43 line 35 to 1-46 reveals that the plaintiff’s recollection in respect to the first conversation between himself and Ms Pitt was that the discussion revolved primarily around the question of reactivation and suspension every six months and whether a reactivation fee of $65 after each six month period would have to be paid (T1-43). This is at complete odds with the plaintiff’s own pleadings which states that these points were only discussed during his second conversation with Ms Pitt.
The plaintiff also gave evidence that he believed that he was granted, in addition to a 2 year suspension period in respect of all six numbers, a 12 month free suspension fee period in respect of numbers 4, 5, 6 and 9. He stated this had been agreed during his first conversation with Ms Pitt (T1-44). That important fact has not however been specifically pleaded in either paragraph 9.4 or 9.5. Rather, the only reference is to a free suspension having been offered in respect of four numbers (Paragraph 9.4) which is consistent with the note recorded on 17th December 1996 which was that the plaintiff was happy with the letter he had received which specifically referred to these numbers (exhibit 6). Those notes and the notes of the 11th December 1996 contained in exhibit 8 support a conclusion that a 12 month suspension fee (free) period only had been granted in respect of 4, 5, 6 and 9 and not as asserted by the plaintiff, that he had been granted 2 years suspension period in respect of these numbers. I therefore do not accept the plaintiff’s evidence on this issue.
The plaintiff also gave evidence that after his first conversation with Ms Pitt, he then discussed certain matters with his family and he again rang Ms Pitt to ask for an extension of 2 years (T1-46 line 5) which he said was granted at that time (T1-46 line 23). This evidence is somewhat at odds with his own pleadings where he asserts he had already been offered a two year suspension for the numbers during the first conversation. Even after making allowances for the fact that the plaintiff has presumably prepared his own pleadings, it does not overcome the conflicting evidence which he has given at trial regarding his pleaded case as it relates to these two conversations.
That was not the only matter which caused me some concern regarding the plaintiff’s ability to give his evidence correctly. The plaintiff stated during his evidence that he had rung up each of the 6 numbers on 23rd August 1998 (T1-51) once he had received his first account (ex 12) and that all six numbers were answered by a person. That is completely at odds with the uncontested fact that every one of the six numbers were only re-issued to other persons from late September 1998 onwards, which therefore makes it impossible for the plaintiff to have rung anyone up on those numbers on the date he suggested.
The plaintiff also admitted that he did not make any notes of the conversations which he says he had with Ms Pitt. He stated that he had suffered an injury to his dominant hand (finger) which was a reason for not making a note. He also stated that he had trusted Ms Pitt to make a proper note of their conversation. The failure by the plaintiff not to make a note is not necessarily fatal to his claim. However, the fact that he did not do so does little to assist his case particularly in circumstances where an important aspect of his evidence was at complete odds with his own pleadings. The documentation to which I have already referred during the course of these reasons in any event supports a conclusion that the plaintiff’s evidence at trial and his recollection regarding his conversations with Ms Pitt was such that he was not in fact granted a 2 year suspension period in respect of numbers 4, 5, 6 and 9 as he believed or asserted. I am therefore unable to accept the plaintiff as a reliable witness regarding his recollection of the agreement which he says was reached between himself and Ms Pitt.
Having made the finding that no such agreement was reached between the parties as alleged in respect of numbers 4, 5, 6 and 9, it is therefore not necessary for me to determine whether or not the defendants breached any provision of the Numbering Plan 1997 (Cth) as alleged. By way of completion however, I find that no cause of action arises for any alleged breach of the Numbering Plan in any event. Any contravention of the relevant provisions of the Telecommunications Act 1997 (the Numbering Plan 1997 being a legislative instrument created under s 455 of that act) falls solely within the purview of the Australian Communications Authority (‘ACA’). That body has not only investigative powers but also may apply to the Federal Court for mandatory injunctive relief.
In coming to my ultimate conclusion in respect of numbers 4, 5, 6 and 9, I have also taken into account exhibits 12 and 13 and the evidence which the plaintiff gave in respect of these exhibits. The plaintiff submitted that those accounts are evidence that all six numbers were still assigned or issued to him. While it is true that exhibits 12 and 13 do show that all six numbers were still on his account at the time they were issued, the submission made by the plaintiff overlooks the fact that other customers were only reissued with those numbers during late September and October, a time subsequent to those accounts being issued.
A careful examination of Ms Pitt and Mr Bolton’s evidence on this issue also confirms that even though those numbers appeared on the face of those accounts, it did not follow that those numbers were in fact suspended. Both witnesses accepted that the numbers were still assigned to the respective account at that time. That fact however is not inconsistent with the uncontested evidence at trial which was that all of the numbers were only subsequently reissued to other customers and presumably their accounts, subsequent to exhibit 12 and 13 being issued.
The plaintiff also argued that he should have received notice from the defendants before they cancelled any of his six numbers. Having found that the plaintiff did not have a beneficial right to use numbers 4, 5, 6 and 9 for the two year suspension period as alleged, I find that the defendants were not required to send him a letter prior to the cancellation of these numbers. I find that the plaintiff had already been advised in correspondence, and he well knew from the letters which had been exchanged between the parties prior to the 17th December 1996, that he had was required to make contact with the Customer Service Department in order to advise them whether he wished to retain the numbers under suspension after the time which had been granted expired. This fact is also confirmed in the note of the 17th December 1996 which clearly records that the plaintiff was happy with the letter which he had received from the defendant as it related to numbers 4, 5, 6 and 9 (ex 6) which advised him of that fact. As a consequence of the plaintiff’s own unfortunate failure to make the appropriate contact after the respective suspension period which had been granted had expired (11th December 1997), the defendants were entitled to cancel the numbers accordingly.
In the event that it is found that my ultimate conclusion in respect of numbers 4, 5, 6, and 9 was wrong, the reasons which I gave in respect of numbers 2 and 3 regarding why the claim should be dismissed or awarding only nominal damages and making no orders for equitable relief would have also been the same in respect of numbers 4, 5, 6 and 9 particularly in circumstances were numbers 4 and 9 are no longer under the defendants’ control as the carriage service provider.
Orders
Claim dismissed.1.
I will receive written submissions as to costs (maximum 6 pages) after the expiration of 28 days from the date of publication of this judgment unless the parties otherwise agree. 2.
0
2
2