Croker v Commonwealth of Australia

[2005] NSWSC 994

CITATION:	Croker v Commonwealth of Australia & Anor [2005] NSWSC 994
HEARING DATE(S):	29/09/2005
JUDGMENT DATE :	5 October 2005
JUDGMENT OF:	Hoeben J at 1
DECISION:	Summons dismissed.

CATCHWORDS:	Jurisdiction of Consumer Trader and Tenancy Tribunal of NSW - does Tribunal have jurisdiction to make orders binding the Commonwealth of Australia.
LEGISLATION CITED:	Consumer Claims Act 1998 Consumer Trader and Tenancy Tribunal Act 2001 Fair Trading Act 1987 Interpretation Act 1987 Residential Tenancies Act 1987
CASES CITED:	Re: The Residential Tenancies Tribunal of NSW v Henderson & Anor, Ex Parte the Defence Housing Authority (1997) 190 CLR 410
PARTIES:	Clayton Robert Croker - Plaintiff Commonwealth of Australia - First Defendant Consumer, Trader and Tenancy Tribunal of NSW - Second Defendant
FILE NUMBER(S):	SC 30060/2005
COUNSEL:	Plaintiff in Person Ms R Pepper - First Defendant Submitting Appearance - Second Defendant
SOLICITORS:	Plaintiff in Person Australian Government Solicitor - First Defendant IV Knight, Crown Solicitor - Second Defendant

LOWER COURT JURISDICTION:	Consumer Trader and Tenancy Tribunal of NSW
LOWER COURT FILE NUMBER(S):	05/14570
LOWER COURT JUDICIAL OFFICER :	Registrar of Consumer Trader and Tenancy Tribunal of NSW

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Wednesday, 5 October, 2005

30060/2005 – Clayton Robert CROKER v COMMONWEALTH OF AUSTRALIA & Anor

JUDGMENT

1 HIS HONOUR: By summons filed 20 July 2005 the plaintiff seeks, inter alia, an order setting aside the decision of the Consumer Traders and Tenancy Tribunal (the Tribunal) made on 9 July 2005. On that date the Tribunal dismissed the plaintiff’s application because “the Tribunal has no jurisdiction to determine the application because the application is not a claim to which the Consumer Claims Act applies”.

2 It is not clear why the Tribunal has been joined to the proceedings as a second defendant. In any event the Tribunal filed a submitting appearance and did not otherwise participate in the matter. The plaintiff was self-represented. Ms Pepper of counsel appeared on behalf of the first defendant.

3 The summons challenging the order of the Tribunal appears to have been brought pursuant to s67 of the Consumer Trader and Tenancy Tribunal Act (CTTTA). Such appeals are limited to matters of law. Subsection 67(8) provides:

“A reference in this section to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal.”


Since the jurisdiction of the Tribunal is a matter in issue, this appeal has been properly brought.

Factual background

4 On 12 November 2003 the plaintiff purchased for $50 a set of commemorative cufflinks from the High Court of Australia. Those cufflinks tarnished within a short time. Although a replacement set of cufflinks was provided in August 2004, those replacement cufflinks also tarnished.

5 On 16 March 2005 the plaintiff filed an application in the Tribunal against the Commonwealth of Australia under s6 of the Consumer Claims Act 1998 (NSW) (CCA) seeking damages of $1,032. The application also relied upon s40W of the Fair Trading Act 1987 (NSW) (FTA).

Issue for decision

6 The question raised in the summons is whether the Tribunal has jurisdiction to consider claims brought against the Commonwealth of Australia.

Decision

7 Section 21(1) of the CTTTA provides:

“The Tribunal has such jurisdiction to decide matters and such powers to make orders and otherwise exercise any function in connection with any such decisions, as is conferred on it by this or any other Act.”

8 Section 7 CCA provides:

“7(1) The Tribunal has jurisdiction to hear and determine any consumer claim brought before it under this Part, whether or not the matter to which the claim relates arose before or after the commencement of the Part, except as otherwise provided by this section.”

Subsection 3(1) CCA defines a “consumer claim” in such a way as to cover the claim made by the plaintiff.

9 Section 40W FTA creates a cause of action for damages in respect of goods of unmerchantable quality. Section 68 FTA relevantly provides:

“(3) If the matter of such loss or damage arises in connection with a matter the subject of proceedings in the Tribunal, the Tribunal may proceed to decide it, and in so doing may award such sum and make such ancillary orders, as it thinks fit.”

10 Because of this statutory framework the Tribunal’s jurisdiction is circumscribed by statute. Its jurisdiction in respect of consumer claims derives from both the CCA and FTA. Section 6 CCA confers jurisdiction on the Tribunal to determine consumer claims for a specified sum of money arising from the supply of good or services to the consumer and s68(3) FTA confers jurisdiction on the Tribunal in respect of actions for damages arising out of Part 5 FTA. Part 5 includes s40W.

11 Accordingly the Tribunal had jurisdiction to deal with the subject matter of the plaintiff’s claim, namely the defective cufflinks. The real question is whether such a consumer claim could be brought against the Commonwealth of Australia.

12 The most useful case on this question is Re: The Residential Tenancies Tribunal of NSW v Henderson & Anor, Ex Parte the Defence Housing Authority (1997) 190 CLR 410. In that case the High Court found that the Residential Tenancies Tribunal (a predecessor of the current Tribunal) could make orders binding the Defence Housing Authority, (which was a Commonwealth agency), under the Residential Tenancies Act 1987 (NSW). It is of significance that s4 of that Act provided:

“This Act binds the Crown, not only in right of New South Wales, but also, so far as the legislative power of Parliament permits, the Crown in all its other capacity.”

The High Court held that this evinced a clear intention to bind the Crown in right of the Commonwealth.

13 The following statements of principle are useful:

“Also it must be kept in mind that there is still a presumption that the Crown is not bound by the general words of a statute. It is a presumption that extends beyond the Crown in right of the enacting legislature to the Crown in right of the other polities forming the federation.” (Dawson, Toohey and Gaudron JJ, p444).
“If in regulating activities engaged in by the Crown and its subjects alike a State statute extends as a matter of construction to the Crown in right of the Commonwealth, then that Crown is bound by the statute in the same way as the subject is bound, subject always to any inconsistency with a valid Commonwealth law.” (447)

14 What emerges clearly from the Henderson case is that the Commonwealth may be bound by State legislation and orders of State Tribunals enforcing that legislation, but the initial question is one of construction as to whether or not the State legislation is intended to bind the Commonwealth.

15 Section 74 CCCTA provides:

“This Act binds the Crown.”

There is nothing in that Act or its regulations which further defines “the Crown”.

16 Subsection 13(b) of the Interpretation Act 1987 (NSW) provides that a reference to “the Crown” in NSW legislation “is a reference to the Crown in right of New South Wales”.

17 There is no provision in the CCA or its regulations which evinces an intention to bind the Crown in any of its manifestations.

18 Subsection 3(1) FTA provides:

“This Act binds the Crown in right of the State insofar as the Crown in right of the State carries on a business, whether directly or by an Authority of the State.”

Section 21(1) of the Interpretation Act 1987 (NSW) provides that a reference to “the State” is a reference to the State of New South Wales.

19 The CTTTA expresses no intention to bind the Commonwealth. By reference to s13(b) of the Interpretation Act, the reference to the Crown is a reference to the State Crown. Similarly, subs 3(1) FTA expressly limits its application to “the Crown in right of the State”. Those provisions are to be contrasted with the section under consideration in Henderson’s case (at [11] hereof).

20 I conclude that as a matter of construction neither the CTTTA, the CCA nor the FTA bind the Commonwealth. Accordingly, although the Tribunal had jurisdiction to deal with the subject matter of the proceedings, ie the cufflinks, it did not have jurisdiction to entertain proceedings where orders were sought against the Commonwealth of Australia.

21 It follows that the Tribunal was correct in dismissing the application for want of jurisdiction and that the plaintiff’s summons should also be dismissed.

Orders

(1) The plaintiff’s summons is dismissed.

(2) The plaintiff is to pay the first defendant’s costs of the proceedings.

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