Collier v Telstra Corporation Limited & Anor (No.3)
[2019] FCCA 2995
•22 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COLLIER v TELSTRA CORPORATION LIMITED & ANOR (No.3) | [2019] FCCA 2995 |
| Catchwords: CONSUMER LAW – Competition and Consumer Act 2010 (Cth) – proceeding summarily dismissed under r.13.10(a), (b) and (c) of the Federal Circuit Court Rules 2001 (Cth) and in particular as an abuse of process because not brought and maintained for proper purposes but for the predominant purposes of harassing, annoying and tormenting the respondents. |
| Legislation: Competition and Consumer Act 2010 (Cth), Schedule 2 (The Australian Consumer Law), ss.2, 213, 228, 236 Telecommunications (Consumer Protections and Service Standards) Act 1999 (Cth) |
| Cases cited: Agar v Hyde (2000) 201 CLR 552 Collier v Telstra Corporation Ltd [2017] FCCA 615 Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134 |
| Applicant: | MARION LOUISE COLLIER |
| First Respondent: | TELSTRA CORPORATION LIMITED |
| Second Respondent: | TELECOMMUNICATIONS INDUSTRY OMBUDSMAN LIMITED |
| File Number: | SYG 3174 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 12 February 2019 |
| Date of Last Submission: | 15 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 22 October 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms A. Munro of Counsel |
| Solicitors for the First Respondent: | DLA Piper Australia |
| Counsel for the Second Respondent: | Mr A. Zahra of Counsel |
| Solicitors for the Second Respondent: | King & Wood Mallesons |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Originating Application filed in this Court on 18 November 2016 is dismissed as against the First Respondent pursuant to r.13.10(a), (b) and (c) of the Federal Circuit Court Rules 2001 (Cth).
The Originating Application filed in this Court on 18 November 2016 is dismissed as against the Second Respondent pursuant to r.13.10(a), (b) and (c) of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3174 of 2016
| MARION LOUISE COLLIER |
Applicant
And
| TELSTRA CORPORATION LIMITED |
First Respondent
| TELECOMMUNICATIONS INDUSTRY OMBUDSMAN LIMITED |
Second Respondent
REASONS FOR JUDGMENT
Introduction and Background
Prior to 23 March 2016 the First Respondent, Telstra Corporation Limited (Telstra), had supplied telecommunications services to the Applicant as a residential customer under the telephone number (02) 6845 3622 (telephone service), for which services it charged an account held with it by the Applicant (telephone account). Telstra ceased provision of the telephone service by 20 June 2017.
Telstra is a well-known telecommunications provider. The Second Respondent, the Telecommunications Industry Ombudsman Limited (TIO), is a not-for-profit company limited by guarantee without a share capital which was established to be the operator of the Telecommunications Industry Ombudsman scheme (TIO scheme) created under Part 6 of the Telecommunications (Consumer Protections and Service Standards) Act 1999 (Cth). The TIO scheme relevantly required that all carriers who supplied standard telephone services to residential customers, necessarily including Telstra, be members of, and comply with, the TIO scheme.
As at 23 March 2016 the TIO scheme (as comprised in the Constitution of the TIO and the current applicable Terms of Reference (Terms of Reference) annexed thereto) provided that, after a complaint had been made to the telecommunications provider and that complaint remained unresolved, a customer could make a complaint to the TIO, including about the supply and billing of telephone services. The complaint would then be investigated by the TIO and after investigation would either be dismissed or the TIO would “…decide the resolution of the complaint, and tell the provider the actions they must take or not take”. In particular, cl.3 of the Terms of Reference provided as follows:
3. HOW WE HANDLE COMPLAINTS
…
3.12 When we decide the resolution of a complaint, the consumer must tell us if they accept our decision.
The consumer must tell us within 21 days.
3.13 If the consumer accepts our decision, they must agree not to take any further action against the provider about the complaint.
3.14 If the consumer accepts our decision, the provider must comply with the decision.
3.15 If the consumer does not accept our decision, the provider does not need to comply with our decision and the consumer can take any further action they want about the complaint.
…
On 23 March 2016 the Applicant made a complaint to the TIO in relation to charges made by Telstra on her telephone account. The complaint was investigated by a TIO officer, Mr David Rogerson, and in April 2016 Telstra made an offer of settlement (first settlement offer) which was not accepted by the Applicant. Then by letter dated 17 June 2016 Mr Rogerson advised the Applicant of his decision that the first settlement offer was fair and reasonable. The Applicant did not agree with Mr Rogerson’s decision and requested a review within the TIO of his assessment of her complaint. The Principal Investigator of the TIO conducted a review of Mr Rogerson’s decision and advised the Applicant by letter dated 15 September 2016 as follows:
I am satisfied that Mr Rogerson reached an appropriate decision in relation to your complaint and that there is no basis for further investigation. The offers Telstra made to resolve your complaint are fair and reasonable.
You are obliged to pay for the service fees and charges on your current plan until you change or cancel the contract.
You are not bound by my decision. If you remain dissatisfied with the outcome, you are free to take your complaint to another forum that has jurisdiction to consider the issues you have raised – such as a court, tribunal or government department. If you are considering this course of action, you may wish to seek independent legal advice or representation.
However, the TIO cannot consider the complaint further and our file has been closed.
Yours sincerely
Jillian Brewer
Principal Investigator
Federal Court of Australia
The Applicant remained dissatisfied and by Originating Application filed in the Federal Court of Australia on 11 October 2016 (Originating Application) she sought relief against Telstra and the TIO. As against Telstra she sought:
[1] An Order of the Court that requires the First Respondent to pay to the Applicant exemplary damages in an amount to be determined by the Court, considering the circumstances, including the defendant's wilful acts that were deemed by the Applicant to be malicious, oppressive, fraudulent, wanton, and grossly reckless in connection with the breaches of the Competition and Consumer Act 2010 (Cth) - Schedule 2 - Australian Consumer Law; Section 213 (a) (i), (ii), (v) & (vi).
[2] An Order of the Court, after determining an appropriate pecuniary penalty, that requires the First Respondent to pay to the Commonwealth a pecuniary penalty in respect to the breaches of the Competition and Consumer Act 2010 (Cth) - Schedule 2 -Australian Consumer Law, that have been found to be contravened; Part 5-2, sections (1) (a) (i) & (ii). Also refer to sections - 156(a);159(2) (a) & (b);Section 168(1) (a) & (b) (i).
[3] An Order of the Court that declares that any verbal or written or implied contract that existed between the First Defendant and the Applicant from 14th. April 2016 be declared null and void and of no effect, as from that material date relating to telephone service numbered: (02) 68453622.
and as against the TIO she sought:
[4] A Declaration by the Court, that the review result conducted and concluded by the Second Respondent in respect to the TIO #2016/03/10762 - Outcome of complaint review of 15th. September 2016, relating to telephone service (02) 68453622, be declared null and void and of no effect.
and finally:
[5]Any other or further orders that the Court deems fit to make.
(original emphasis removed,
new emphasis added)
The Originating Application came before Flick J on 8 November 2016. There is no transcript of that hearing, but it is clear that some settlement negotiations then took place. In the result Flick J ordered as follows:
1. The proceeding is stood over for further directions at 9.15am on 16 November 2016.
2. In the absence of resolution by consent, consideration will be given to transferring the proceeding to the Federal Circuit Court of Australia pursuant to s 32AB(1) of the Federal Court of Australia Act 1976 (Cth).
3. Costs reserved.
4. Liberty to apply.
By email dated 8 November 2016 Telstra made a further settlement offer to the Applicant (second settlement offer) which in substance comprised as follows:
In an attempt to settle this claim as a goodwill gesture only, Telstra is prepared to offer you the following:
1.Telstra will waive the current outstanding balance on your account; and
2.Although the current plan that you are on does not include free mobile calls, Telstra is prepared to credit you for the additional $9.00 per month for a 24 month period (being a total credit of $216.00) to move to the "Telstra Large Bundle" plan that includes free mobile calls.
The current plan that you are on is the Telstra Home Internet Medium Bundle, which has a minimum monthly charge of $90.00 per month. The Telstra Medium Bundle that includes free mobile calls has a $99.00 minimum monthly charge. As noted above, Telstra is prepared to credit you a lump sum of $216.00, which covers the additional $9.00 per month for a 24 month period. We note that should you choose to continue with the Telstra Large Bundle after the 24 month period, then you will need to cover the additional $9.00 per month, being a minimum monthly charge of $99.00.
Please note that this offer is made without prejudice to Telstra's rights and is subject to the execution and return of a Deed of Release, which we will send to you upon acceptance of this offer.
We await your response.
The matter came back for directions before Flick J on 16 November 2016 and the transcript before his Honour records in part as follows:
MR WIJEYEWARDENE: I appear for Telstra.
HIS HONOUR: Thank you.
MR BERG: If the court pleases, Berg for the second respondent.
HIS HONOUR: Yes, Mr Berg. Now, Ms Collier, on the last occasion I think I adjourned the proceeding in order to enable you to see if you could resolve your dispute with the respondents. Have you been able to do so?
MS COLLIER: No, your Honour. I tried and they made no real attempt and based on that, I'm actually very sorry, I inconvenience the court. I'm now asking to pursue everything in my originating summons and that is including page 2 of that summons.
HIS HONOUR: There's no need to apologise. A litigant is entitled to have access to the court. The answer to my question is no, you have not been able to resolve it.
MS COLLIER: No.
HIS HONOUR: Is there any reason why the matter should not be transferred to a Federal Circuit Court?
MS COLLIER: Yes, there is, your Honour.
HIS HONOUR: Why?
MS COLLIER: Because Telstra Australia and in fact the TIO, the two respondents, have breached sections - the numerous Acts, such as the Competition and Consumer Act, in various parts which relate to fines imposed by the court which exceed the amount of money that the Federal Circuit Court are entitled to issue.
HIS HONOUR: I don't think I understand that. What provision exceeds the jurisdiction of the Federal Circuit Court?
MS COLLIER: Right. The-hang on a second, I'm just getting to the right page. Section 159, misleading, representing and certain business activities, and also section 168, harassment and coercion.
HIS HONOUR: Which Act are you referring to?
MS COLLIER: I'm sorry - I'm sorry about that, your Honour. I am referring to the - where are we - Competition and Consumer Act 2010 - - -
HIS HONOUR: Thank you.
MS COLLIER: - - - schedule 2.
HIS HONOUR: Thank you. Thank you. Now, first respondent, what's your attitude?
MR WIJEYEWARDENE: Your Honour, may I explain the statement that the applicant made about the settlement negotiations?
HIS HONOUR: It's of - none of my concern. You either resolve it or you don't.
MR WIJEYEWARDENE: Yes.
HIS HONOUR: It has not been resolved. The card will lie where they fall.
MR WIJEYEWARDENE: Yes. Your Honour, as the applicant explained to this court last week, her sole aim in these proceedings is to get the debt in her account - - -
HIS HONOUR: And that was variously expressed in the sum of $300 or $500 wasn't it.
MR WIJEYEWARDENE: $500. And Telstra is willing to do that.
HIS HONOUR: Right.
MR WIJEYEWARDENE: And the other main concern that the applicant had was that she wanted free mobile calls added to her current plan and Telstra is willing to do that as well.
HIS HONOUR: You're willing to do that?
MR WIJEYEWARDENE: Do that.
HIS HONOUR: So you ' re willing to expunge the debt - - -
MR WIJEYEWARDENE: Yes.
HIS HONOUR: - - - and to give the free mobile calls?
MR WIJEYEWARDENE: Yes. Yes. Subject to - there is a - we have to actually put her on a higher plan but Telstra was willing to provide discount so she is not - she's not going to pay any more than the $90 she is paying. So we were willing to do that and we asked the applicant to sign a deed of release and she just refused.
HIS HONOUR: Well, Ms Collier, I don't know the merits of this at all but - - -
…………………………………
HIS HONOUR: It sounds as though what you asked for on the last occasion - leave aside fines - namely, expungement of the debt, that has been acceded to, and a question as to mobile phones has been acceded to with no additional cost. That's the offer which I'm told was communicated to you. Is that offer accepted or rejected?
…………………………………
HIS HONOUR: What I'm going to do is I'm going to get Telstra to communicate to you immediately what their offer is and you can either accept it or reject it. Mr Berg, what's your position?
MR BERG:Your Honour, I have a copy of the email here if your Honour would like to see it. It attaches the offer from Telstra to Ms Collier. It was sent on Friday of last week at 4.54 pm. It contains - there are two parts of the offer. One is the expungement of the debt of 300 and something-odd dollars. The other is to offer Ms Collier a modification to her existing plan which would give her calls to Telstra mobiles for the next two years without any additional charge. In essence, there are - there's a bit of tweaking around that offer, your Honour, but that's the effect of it.
HIS HONOUR: Right.
MR BERG:And that was conveyed to Ms Collier in a letter from Telstra and attached to that letter was a deed setting out the terms upon which Telstra and my client were prepared to resolve these proceedings.
HIS HONOUR: Thank you. Well, to avoid any uncertainty, Ms Collier, I will have that email communicating that offer communicated to you immediately.
…………………………………
HIS HONOUR: The offer is going to be communicated to you. You can either accept it or reject it.
MS COLLIER: Your Honour - - -
HIS HONOUR: If you reject it, I don't want to know why. It's a matter entirely up to you. No submission is being put to me that there's any jurisdictional constraint upon the Federal Circuit Court. I'm not aware of any. So that - if the offer is rejected, I'm minded to refer the matter down to the Federal Circuit Court for further hearing. Now, what do you want to say, Ms Collier?
…………………………………
HIS HONOUR: Yes. Right. Well, look, thank you, Ms Collier, for your assistance.
(emphasis added)
In the result the Applicant rejected the second settlement offer and on 16 November 2016 Flick J made orders transferring the proceeding from the Federal Court of Australia to this Court.
Federal Circuit Court of Australia
On 18 November 2016 the Applicant re-filed the Originating Application in this Court. The progress of the proceeding was then delayed by the Applicant’s Application in a Case filed on 17 March 2017 seeking that I recuse myself and make other procedural orders, including an order that the proceeding be transferred back to the Federal Court and wholly unjustifiable relief directed at the solicitor and Counsel acting for the TIO, which Application in a Case was the subject of my judgment bearing medium neutral citation [2017] FCCA 615. An appeal from that decision was heard and dismissed by Farrell J in the Federal Court, with her Honour’s judgment dated 18 October 2018 bearing medium neutral citation [2018] FCA 1569.
Present Applications before this Court
On 2 February 2017 the TIO had filed an Application in a Case in this Court which sought that the Originating Application be dismissed on the basis that it constituted an abuse of process.
On 1 November 2018 Telstra filed an Application in a Case in this Court which sought that the Originating Application be summarily dismissed under r.13.10 of the Federal Circuit Court Rules 2001 (Cth) on the bases that the Applicant had no reasonable prospect of successfully prosecuting her claims for relief against Telstra and that the claims were frivolous, vexatious or an abuse of process.
I note that in relation to summary dismissal of legal proceedings Gleeson J in Geneva Laboratories Ltd v Nguyen (2014) 110 IPR 295 said at 305 – 306 [53] – [57]:
[53]Section 31A(2) of the Federal Court Act 1976 (Cth) provides:
(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
[54]Rule 26.01(1) of the Rules provides, relevantly, that a party may apply to the court for an order that judgment be given against another party because that proceeding is frivolous or vexatious, or an abuse of the process of the court.
[55]Other grounds for summary dismissal are that the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding, or no reasonable cause of action is disclosed.
[56]A matter is frivolous and vexatious where the “cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the court”: Norman v Matthews (1916) 85 LJKB 857 at 859 .
[57] Proceedings may be an abuse of process if brought for a collateral purpose. The essential question for determination is whether or not the proceedings, and the particular claims made in them, are genuinely intended to be determined in the proceedings: Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; 163 ALR 744; [1999] FCA 773 at [64] . Proceedings may also be an abuse of process if they have no real prospect of resulting in a substantial remedy and involve unjustifiable expense and use of judicial resources. Alternatively, a significant disproportion between the judgment amount and the costs of the proceedings may justify depriving an otherwise successful plaintiff of a usual costs order: Jones v Sutton (No 2) [2005] NSWCA 203.
I am conscious that in considering an application to summarily dismiss a proceeding I ought to exercise extreme caution before making any such order. In considering whether to summarily dismiss the proceeding and with regard to the degree of caution with which any power of summary dismissal should be exercised, I have had regard to the decision of Agar v Hyde (2000) 201 CLR 552, where Gaudron, McHugh, Gummow and Hayne JJ stated as follows at 575 – 576 [57]:
[57]Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
To similar effect French CJ and Gummow J said in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at 131 [24]:
[24]The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:
“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”
Both Applications in a Case were heard on 12 February 2019 when the Applicant appeared in person, Ms Munro of Counsel appeared for Telstra and Mr Zahra of Counsel appeared for the TIO.
Telstra’s Application in a Case
Under cover of an email dated 31 October 2018 enclosing a draft of its Application in a Case filed two days later, Telstra made an offer on an open basis to settle the proceeding for $2,000 (third settlement offer). It is appropriate for the full text of the third settlement offer to be set out:
Dear Mrs Collier
Marion Louise Collier v Telstra Corporation Ltd (Telstra) & Anor, SYG 3174 of 2016 (Proceeding)
As you know, we act for the First Respondent, Telstra, in the above Proceeding.
From the documents that you have filed in the Proceeding, we understand that you have raised claims relating to the telecommunications services, specifically your telephone service (02) 6845 3622, that Telstra supplied to you from 14 April 2016 to the date on which Telstra ceased supplying you that service, being 20 June 2017.
Telstra considers that the claims for relief in respect of Telstra in paragraphs 1, 2 and the second paragraph 1 of your Originating Application have no proper basis. This is for the following reasons:
(a) Exemplary damages are not available under the Australian Consumer Law (ACL)
In paragraph 1 of your Originating Application, you make a claim for exemplary damages in respect of breaches of the ACL. Exemplary damages are not available for breaches of the ACL. See Musca v Astle Corporation Pty Ltd [1988] FCA 114 at [66].
(b) Only a government regulator can apply for pecuniary penalties
In paragraph 2 of your Originating Application, you seek an order that Telstra pay a pecuniary penalty to the Commonwealth. Section 228(1) of the ACL provides that only the regulator (defined as the Australian Competition and Consumer Commission) may institute court proceedings for the recovery of pecuniary penalties on behalf of the Commonwealth. This means that the Court cannot make the order you seek.
(c)Telstra no longer supplies you with any telecommunications services
In the second paragraph 1 of your Originating Application, you seek an injunction in relation to your telephone service number (02) 6845 3622. As you know, Telstra ceased supplying you with all telecommunications services, including your telephone service number (02) 6845 3622, on 20 June 2017. In these circumstances, the order sought would have no utility and no effect.
Paragraph 3 of your Originating Application seeks an order that “declares any verbal or written or implied contract that existed between the First Defendant and the Applicant from 14th April 2016 be declared null and void and of no effect, as from that material date relating to telephone service numbered: (02) 68453622”. You do not seek any consequential relief.
The Court will not exercise its power to grant declaratory relief if the court's declaration will produce no foreseeable consequences for the parties: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 382. Neither your Originating Application nor your supporting affidavit filed on 10 October 2016 set out the foreseeable consequences of the declaration sought in paragraph 3 of your Originating Process. To the extent you submit that a foreseeable consequence of the declaration is the repayment of monies paid by you to Telstra under the alleged contract the subject of paragraph 3 of your Originating Process, Telstra denies that any such monies are or will be due and payable.
Notwithstanding that position, and without any admission that it has any liability to do so but on an open basis, we are instructed that Telstra is willing to offer to pay you the sum of $2,000.00 in full and final settlement of the claim made by you in paragraph 3 of your Originating Application.
The amount of $2,000.00 represents:
·$589.72, being the total of all amounts recorded in Telstra's systems as having being paid by you to Telstra in respect of telephone service (02) 6845 3622 on account number 2000 21910 4047 (and all other telecommunications services supplied to you on that account number), during the period from 14 April 2016 to 20 June 2017 inclusive, being the date those services ceased being supplied to you by Telstra;
·plus, $120.34, being interest on the sum of $589.72 at the rate of 8.00% from 14 April 2016 to the date of this letter (in accordance with the highest applicable rate prescribed for interest on judgment by the Federal Court Rules, being the rate that is 6% above the cash rate last published by the Reserve Bank of Australia before 1 January 2016);
·plus, an ex gratia payment of $1,289.94.
Telstra's offer remains open to you to accept at any time during the Proceeding. However, in light of the above, we invite you to accept this offer promptly to avoid future costs and time being incurred by you and by Telstra.
We are instructed to file the enclosed Application in a Case and seek orders in relation to it, including having it set down for hearing, at the directions hearing on Friday 2 November 2018, on the basis that:
·paragraphs 1, 2 and the second paragraph 1 of your Originating Application have no proper basis; and
·paragraph 3 of your Originating Application is an abuse of process, in circumstances where:
oyou seek an order that "declares any verbal or written or implied contract that existed between the First Defendant and the Applicant from 14th April 2016 be declared null and void and of no effect, as from the that [sic] material date relating to telephone service numbered: (02) 68453622";
oyou do not seek any consequential relief in your Originating Application nor do you identify any foreseeable consequence of the declaration sought in your supporting affidavit;
oTelstra no longer provides you with any telecommunications services; and
oTelstra has offered to pay you on an open basis a sum of $2,000, as described above.
We are also instructed that Telstra will rely on this letter at the directions hearing on Friday 2 November 2018 and at the hearing of Telstra's Application in a Case in the form enclosed with this letter.
We look forward to hearing from you.
The substance of the third settlement offer constituted a preparedness by Telstra:
a)to write off and not charge the Applicant the charges and fees incurred by her with respect to the telephone account for the telephone service between 14 April 2016 to 20 June 2017, in the amount of $3,422.09; and
b)to grant to the Applicant pecuniary benefits totalling the sum of $2,000, as offered in the letter of 31 October 2018, which was comprised of:
i)the repayment to her of a sum of $589.72, being the total amount paid by the Applicant to Telstra in relation to the telephone service from 14 April 2016 to 20 June 2017 inclusive;
ii)the payment to her of a sum of $120.34, being interest on the sum of $589.72 at a rate of 8% per annum from 14 April 2016 to 31 August 2018; and
iii)an ex gratia payment to her of $1,289.94.
During the course of the hearing Ms Munro informed the Court that Telstra had in Court a bank cheque for $2,000 available for immediate payment to the Applicant to facilitate the third settlement offer. I asked the Applicant whether accepting the offer of $2,000 held any attraction and she indicated that it did not. Then towards the end of the hearing I raised with Ms Munro the possibility of Telstra paying $2,000 into Court and thereafter on 26 February 2019 I made the following orders in Chambers pursuant to r.2.41 – 2.43 of the Federal Court Rules 2011 (Cth):
1. The First Respondent pay the sum of $2,000 into Court within 7 days of the making of this order.
2. The sum paid in accordance with Order 1 be held in the Litigant’s Fund until the earlier of:
a) The dismissal of the proceedings by consent of all parties, following which time that sum shall be paid to the Applicant; or
b) 28 days from the date of this Order, following which time that sum shall be repaid to the First Respondent.
At no point in time since has the Applicant accepted the sum of $2,000 (which was paid into the Litigant’s Fund on 4 March 2019) in settlement or sought payment of it out of the Litigant’s Fund, which amount was returned to Telstra on 1 May 2019.
I further note that during the course of the hearing the Applicant, with reference to the third settlement offer of $2,000, said as follows:
MS COLLIER: So the issue is that there needs to be punishment for the fact of what they did wrong, and to simply say, well, you know, just hand her $2,000 and you go off your way and she goes off her way. Nobody will know the difference. That’s saying, well, you know, Have fun. Go and do it again. Keep it up.
[TP39.16 – 19]
MS COLLIER: So now I’m being disciplined because I’ve refused to accept their pittance of crumbs that they want to throw out to me, because I’m entitled to proper retribution for the problems that they caused, the trouble that they caused, and the inconvenience that they caused.
[TP41.5 – 7]
(emphasis added)
Telstra’s Attack on [1] of the Originating Application
As a preliminary matter I first note that, because of the conventional bare terms of the Originating Application, at a directions hearing on 17 March 2017 on Ms Munro’s application for Telstra I made, amongst others, the following order:
6.Mrs Collier is to prepare a document briefly setting out the basis on which the relief set out in the Originating Application is sought by 31 March 2017.
The Applicant failed to be present at the directions hearing of 17 March 2017, but by email sent by my Associate at 11:53am on that date the Applicant was advised of the making of the above order as well as the other orders made on that occasion: see also Farrell J in [2018] FCA 1569 at [64]. This email was received by the Applicant, to which she responded at 9:44pm on 17 March 2017. However, the Applicant has never complied with the above order.
Paragraph [1] of the Originating Application is a claim for exemplary damages, supposedly under s.213 of the Australian Consumer Law, comprised in Sch.2 to the Competition and Consumer Act 2010 (Cth) (ACL), which in short empowers a Court to give preference to the making of an order for compensation against a defendant in favour of a person who has suffered loss or damage, where the Court would have considered it appropriate to also fine the defendant, but the defendant does not have sufficient financial resources to pay both the fine and the compensation. In its terms s.213 is quite inapt to ground a claim for, or an award of, exemplary damages.
The nature of a claim for exemplary damages is sufficiently set forth for present purposes in the judgment of Mason CJ, Brennan, Deane, Dawson and Gaudron JJ in Lamb v Cotogno (1987) 164 CLR 1 at 8 – 9, in the following terms:
“Mayne & McGregor on Damages, 12th ed. (1961), p.196 contains an oft-cited description of exemplary damages:
“Such damages are variously called punitive damages, vindictive damages, exemplary damages, and even retributory damages. They can apply only where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff’s rights”.
The punitive aspect of exemplary damages was emphasized by Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd where he said ((1985) 155 CLR at 471):
“As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories. In Merest v Harvey (1814) 128 E.R. 761 substantial exemplary damages were awarded for a trespass of a high-handed kind which occasioned minimal damage, Gibbs C.J. saying: 'I wish to know, in a case where a man disregards every principle which actuates the conduct of gentlemen, what is to restrain him except large damages?’
The social purpose to be served by an award of exemplary damages is, as Lord Diplock said in Broome v Cassell & Co. (1972) A.C. at 1130, ‘to teach a wrong-doer that tort does not pay’.”
However, the simple fact of the matter is that it is established by a course of authority that exemplary damages are not available under the ACL. In relation to s.82 of the Trade Practices Act 1974 (Cth), which is a predecessor section to s.236 of the ACL, French J in Musca v Astle Corporation Pty Ltd (1988) 80 ALR 251 at 262 said as follows:
Exemplary damages do not compensate for loss. They are therefore not recoverable under s 82 of the Act, for that section will allow only for the recovery of the amount of loss or damage suffered by conduct of another in contravention of a provision of Pt IV or Pt V of the Act. Nor does it appear that the court can award such damages under s 87, for the orders that may be made under that section are essentially compensatory in character.
In this connection see also: Munchies Management Pty Ltd v Belperio (1988) 58 FCR 274 at 288; Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 at 501; Nixon v Philip Morris (Australia) Ltd (1999) 95 FCR 453 at 479 – 481 [97] – [103]; Geneva Laboratories Ltd v Prestige Premium Deals Pty Ltd(No.5) (2017) 122 IPR 279 at 298 [79].
In my view, it follows that exemplary damages cannot be awarded under any of the provisions of the ACL, including in connection with s.213.
Further and in any event, the Applicant has not put before the Court a skerrick of evidence to the effect that Telstra has been guilty of any form of conduct towards her which could give rise to an award of exemplary damages or that Telstra has ever acted in contumelious disregard of her rights and position, so that any claim for exemplary damages, even if she were to amend her claim to include common law deceit, would be doomed to fail.
Accordingly, [1] of the Originating Application should be summarily dismissed because the Applicant has no reasonable prospect of successfully prosecuting the claim for exemplary damages and it is frivolous and vexatious.
Telstra’s Attack on [2] of the Originating Application
This paragraph is misconceived because recovery of pecuniary penalties on behalf of the Commonwealth is reposed, by the combined effect of s.228(1) and the relevant definitions in s.2 of the ACL, in the Australian Competition and Consumer Commission and no one else. In other words, the Applicant has no standing in this Court to seek that a pecuniary penalty in respect of breaches of the ACL be paid to the Commonwealth.
Accordingly, in my view [2] of the Originating Application should be summarily dismissed as the Applicant has no reasonable prospect of successfully prosecuting the claim for the recovery of pecuniary penalties as sought and it is frivolous and vexatious.
Telstra’s Attack on [3] of the Originating Application
This paragraph seeks a declaration that any contract in relation to the telephone service between the Applicant and Telstra from 14 April 2016 “be declared null and void and of no effect”. However, the evidence establishes that Telstra supplied, and the Applicant accepted, the telephone service up to no later than 20 June 2017, which incurred charges and fees on the telephone account from 14 April 2016 to 20 June 2017 in the amount of $3,422.09: see [18(a)] above. I note for completeness that there was a further charge debited to the telephone account on 2 August 2017, but that amount was credited to the telephone account on 13 August 2017 such as to render it written off and not payable by the Applicant.
Accordingly, in the circumstances of this case I do not see any grounds at all for the Court ever finding that the contract between Telstra and the Applicant which led to the provision of the telephone service ought “be declared null and void and of no effect” as and from 14 April 2016. The Applicant has not established, or pointed to, any basis for such a declaration.
As it presently stands the Applicant has no reasonable prospect of successfully prosecuting a claim for the declaration as sought in [3] of the Originating Application and it ought to be summarily dismissed on that basis alone. It is also frivolous and vexatious.
General Abuse of Process
Nevertheless, I accept that in different circumstances it might well be possible for the Applicant to amend [3] to seek appropriate declaratory relief in aid of a money claim against Telstra. However, overarching everything I consider that the totality of the claims against Telstra are an abuse of the process of the Court and are otherwise frivolous and vexatious because even if, contrary to my views as expressed above, the Applicant did have an arguable, or prima facie, claim for relief as sought in the Originating Application against Telstra, I would dismiss such a claim because in my view she has commenced and maintained the proceeding not for the proper purpose of vindicating in good faith any breach of her legal rights, but rather for the predominant purposes of harassing, annoying and tormenting Telstra and for her own personal enjoyment as an actor in the litigation: see generally Williams v Spautz (1992) 174 CLR 509, Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134 and Toben v Nationwide News Pty Ltd (2016) 93 NSWLR 639 at 665 – 666 [122] on abuse of process.
The hearing on 12 February 2019 extended over a period of two and a half hours and it became clear to me that the Applicant is an intelligent and articulate woman. This accords with the view of Farrell J as expressed in [2018] FCA 1569 at [94]. I was of the view that the Applicant was deriving considerable personal enjoyment from appearing in Court, making submissions and engaging and interacting with the Counsel for Telstra and the TIO and myself as the Judge. It appeared to me as though she viewed the hearing as a sort of game in which she was a privileged participant and from which role she gained a feeling of satisfaction and importance. I gained the clear impression that the Applicant was predominantly interested in using the Court hearing and the proceeding as a whole as a stage on which she might continue to vent her spleen against the Respondents, an anger for which there appears to be no reasonable basis, rather than as a proper means to recover a monetary amount or other recognised form of relief in satisfaction of any claimed legal wrong. Her references at the hearing to seeking “punishment” and “proper retribution” against Telstra, recorded at [20] above, informed and confirmed my views in this regard.
The simple fact of the matter is that the Applicant has failed to articulate or formulate in writing, or orally at the hearing, any coherent or legally meaningful claim in money terms or otherwise against Telstra, either by reference to material facts or at all.
Further confirmation that the Applicant is not seeking to vindicate any asserted breach of her legal rights in good faith is her refusal, for present purposes putting aside the first settlement offer, to accept the second settlement offer or the third settlement offer and the $2,000 paid into Court by Telstra. In my view both the second settlement offer and third settlement offer would have given to the Applicant more than she could ever achieve against Telstra in the present proceeding, which as it stands is nothing. However, she has refused those offers because of her wish to continue to derive personal enjoyment and satisfaction in the continuance of the proceeding and the continuance of her vexation and harassment of Telstra for no good or sufficient reason. In the circumstances, the continuance of the proceeding against Telstra at the behest of the Applicant serves no proper utility and it should be terminated.
The Applicant has not received the telephone service since at least 20 June 2017 and has been credited with amounts equal to any charges debited to the telephone account since that date. It is clear that Telstra has written off all outstanding charges against the Applicant on the telephone account and makes no monetary claims against the Applicant in relation to the telephone account. The termination of the proceeding may mean that Telstra will not now be prepared to make any monetary payment of $2,000, or any sum at all, to the Applicant, but that will be the result of the Applicant’s own stubbornness and unreasonable conduct in not accepting the third settlement offer and accepting the sum of $2,000 on the basis as offered by Telstra. It is not my role to force this settlement offer on the Applicant by making an order that Telstra pay $2,000 to her, when she has, in my view, quite unreasonably rejected it.
In light of my findings above concerning Telstra and those below concerning the TIO, any grant of leave to the Applicant to plead, replead or reformulate is out of the question.
Accordingly, I will make orders in the nature sought by Telstra in its Application in a Case.
The TIO’s Application in a Case
First, in my view the Applicant has no prospect of success in obtaining from the Court the declaration against the TIO as sought in [4] of the Originating Application. The Applicant has not tendered any evidence at all to the effect that the investigation by the TIO of her dispute with Telstra was affected by any form of wrongdoing, impropriety or bad faith which might incline the Court to find that the TIO had constructively failed to carry out any investigation pursuant to the TIO scheme, or that its investigation should be declared “null and void and of no effect”. There is no evidence before me which has any tendency to establish that the TIO conducted its investigation of the Applicant’s complaint otherwise than fairly, properly and in good faith.
Second, in such circumstances the making of a declaration would not serve any legitimate purpose or be of any utility because there is no legal controversy between the Applicant and the TIO. The TIO always had a limited role vis a vis the dispute between the Applicant and Telstra. It was limited to either dismissing her complaint or deciding “the resolution of [the] complaint”, with its decision not binding the Applicant but leaving her in a position where she could herself take further action in connection with her complaint against Telstra, as she did by commencing this proceeding: see cl.3 of the Terms of Reference at [3] above. The decision of the TIO has been wholly overtaken by the present proceeding in this Court as a court of law. Any declaration about the TIO’s decision, which was not accepted by the Applicant, would not have any real or foreseeable consequences, legal or otherwise, for her: see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582.
Third, as with Telstra, the Applicant has failed to articulate or formulate any coherent or meaningfully legal claim for relief against the TIO.
Fourth, again overarching everything, I consider that the claim against the TIO is an abuse of the process of the Court and is otherwise frivolous and vexatious because the Applicant is not truly seeking vindication of any breach of her legal rights, but rather commenced and maintains the proceeding with the purposes of harassing and vexing the TIO and for her own personal enjoyment, as she is similarly doing with respect to Telstra.
Accordingly, I will make orders in the nature sought by the TIO in its Application in a Case.
Conclusion
I make the following orders:
(i)The Originating Application filed in this Court on 18 November 2016 is dismissed as against the First Respondent pursuant to r.13.10(a), (b) and (c) of the Federal Circuit Court Rules 2001 (Cth).
(ii)The Originating Application filed in this Court on 18 November 2016 is dismissed as against the Second Respondent pursuant to r.13.10(a), (b) and (c) of the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 22 October 2019
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