Dai v Telstra Corporation

[1999] FCA 1135

FEDERAL COURT OF AUSTRALIA

Dai v Telstra Corporation [1999] FCA 1135

JURISDICTION - claim for damages said to be under Telecommunications Act but in fact for alleged wrongful disconnection of telephone service for non-payment of four disputed calls - true issue being whether the respondent was in breach of Telstra's General Terms & Conditions governing the supply of services to customers

PRACTICE & PROCEDURE - motion for summary dismissal pursuant to O 20 r 2 (1)(a) of the Federal Court Rules -

Telecommunications Act 1975 (Cth)
Federal Court Rules, O 20 r 2(1)(a)

Webster v Lampard [1993] 177 CLR 598, referred to
Alan Roy Hancock v Visy Board Pty Ltd (unreported, R. D. Nicholson J, 13 February 1997), applied

RONG-HUA DAI V TELSTRA CORPORATION LIMITED

N 240 OF 1999

THE HON JUSTICE MARCUS EINFELD AO
6 SEPTEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 240 OF 1999

BETWEEN:	RONG-HUA DAI Applicant
AND:	TELSTRA CORPORATION LIMITED Respondent
JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE OF ORDER:	6 SEPTEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   the respondent's motion of 25 May 1999 be allowed in part

2.   the application be dismissed as disclosing no reasonable cause of action

3.   the applicant pay the respondent's costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 240 OF 1999

BETWEEN:	RONG-HUA DAI Applicant
AND:	TELSTRA CORPORATION LIMITED Respondent

JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE:	6 SEPTEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By application dated 29 March 1999 the applicant has claimed under the Telecommunications Act 1975 (Cth) for in excess of $1,000,000 in damages as well as over $500,000 in legal costs despite the fact that he has been unrepresented. Originally he named Maria Kafes, a case manager at Telstra, as the respondent to the claim. It appears that the only part Ms Kafes played in the matter was to write a letter to Marcela Veneges at the office of the Telecommunications Industry Ombudsman (TIO), dated 29 January 1999, in relation to a complaint made by the applicant. The applicant erred in naming Ms Kafes as the respondent and when the matter first came before me on 25 May 1999 I ordered that her name be struck out and that Telstra be substituted as respondent.

   At relevant times the applicant was the lessee of Sydney telephone number [phone].  In an account dated 21 June 1998, Telstra claimed $64.88 for four calls allegedly made on 19 June 1998 from that number to overseas telephone number 0011 248 204 065, a Chinese language "adult fantasy" phone service in the Seychelles.  The evidence demonstrated that the calls were made at 2:09am (19 mins 57 secs), 8:29am (12 secs), 8:31am (1 min 56 secs) and 8:34am (2 mins 27 secs), and that undisputed calls were made from the applicant's number shortly before and after them.  According to a report compiled by Telstra, what it calls its Call Charge Record (CCR) for the relevant number and time evidenced that:

   …an unsuccessful call to mobile service 0416 102988 [2:01:44am] eight minutes prior to the first call to The Seychelles on the evening of 18 June 1998, and a further unanswered call to the same mobile service [8:36:52am] 20 seconds after the last call to The Seychelles was made on the morning of 19 June 1998…Two local calls were then made in the two minutes after the unsuccessful call to the mobile service [8:37:13am and 8:38:04am], to numbers that are regularly dialled from service [phone].[my additions]

   In fact as my additions to this extract reveal, the first of the calls to the mobile number referred to was made in the early morning of 19 June, not on the previous evening. 

2. Although the applicant admitted and paid for all the other calls on the 21 June and other accounts in respect of his telephone service, and also did not dispute a call to China made on the same telephone service but through another provider at 8:37am on 19 June, he denied that either he or the two other people who reside at his premises made the four calls to the Seychelles.  After the applicant contacted Telstra's billing enquiries service on 29 June to present his denial of liability for these four calls, an investigation into the veracity of the calls was commenced.  It was completed on 10 July and by a letter of that date the applicant was advised that no fault or error had been detected in the connection itself or as to the disputed calls.  On 7 August a disconnection notice was issued to the applicant and subsequently, on 20 November, his telephone service was terminated for non-payment of the disputed amount. 

3. The applicant wrote to the Office of Fair Trading (OFT) on 1 September in relation to the billing dispute and the pending disconnection.  The OFT forwarded the letter to the TIO on 16 October.  In the period from October to December, correspondence passed between the TIO and the applicant as the TIO sought to clarify the nature of the complaint and obtain information from the applicant in support of his claims.  Following contact from the TIO, Telstra conducted a further investigation into the matter, and in a letter dated 29 January 1999 confirmed to the TIO that the call charges were correct.  Accordingly the TIO wrote to the applicant on 2 February that without further evidence it would be unable to recommend that Telstra amend its charges.  On 5 February the applicant disputed the decision of the TIO and consequently the matter was referred to a TIO Investigations Manager who, in a letter dated 22 February, reaffirmed the decision that without further evidence there were no grounds for a further investigation of the applicant's complaint. 

4. The applicant's response to this course of events was his application to this Court on 29 March 1999 in which he set out the details of his claim as follows:

   Having failed to provide reliable services, Telstra has been harassing the applicant by indulging systematically in deceptive and concealing practices against evidence in an attempt to delay resolving the dispute and evade compensation even when the applicant's life and work have been severely affected by the disconnection.  Telstra is liable for $250,000.00 in compensation for its persistent cover-up, deception and harassment.

   Telecommunication is a basic means in modern daily life.  The disconnection compelled the applicant and the applicant's roommates to purchase mobile phones, consequentially, causing unnecessarily excessive mobile phone bills.  The applicant and the applicant's roommates have suffered losses of income and inconvenience.  The applicant's book writing and Internet-related businesses have been significantly disrupted.  Because of Telstra's lengthy denial and evasive behaviour, the applicant has been forced to spend numerous hours preparing the case, severely affecting the applicant's individual life and public involvement.  Telstra is liable for $100,000.00 in compensation for time and effort spent and inconvenience experienced by the applicant and the applicant's roommates.

   The applicant does not have any non-payment with any phone companies in Australia and overseas.  The applicant would not dispute the four (4) "Adult Fantasy" calls to Seychelles for the amount of less than $60.00 should they be true.  Telstra's arrogance and attitude are an insult to the applicant's character.  The relations between an individual and a large corporation reveal the applicant's genuine determination in pursuit of justice and truth.  Given the nature of the case, fault history of the service, Telstra's mismanagement, harassment and misconduct in dealing with the dispute, Telstra is liable for $100,000.00 in compensation for such insult.

5. The applicant then filed a statement of claim on 28 May 1999 which stated under the heading "Telstra's Liabilities" and the subheading "Relief Sought" [sic]:

   1)Given the grave nature and circumstances in PARTICULARS OF FRAUD and PARTICULARS OF HARASSMENT, MISTREATMENT, MISMANAGEMENT & ETC. in the above and supporting documents, the Applicant seeks Relief for $1,000,000.00.

   2)Representing himself, the Applicant charges the Respondent a legal cost of $525,067.80 plus disconnection days at $40.00 per day and refund of 20 local calls per month back in 1989.

   3)The Applicant's roomates seek Relief of a full refund of mobile phone expenses plus inconvenience (as in Mr. Chen's Statement 08/05/98 submitted to the Court and on-going mobile phone cost).  Compensatory amount to Mr. Chen and other roommates be listed separately.

   4)The Applicant requests the Court for permission to have all the hearings broadcast live to the public given its entire fraud set-up and resultant impact on the public should Telstra resist to admit its unlawful practices and apologize in writing to and accepted by the Applicant.  The amount of $1,000,000.00 will double after each hearing scheduled in the future.

6. A threshold issue is whether the Court has jurisdiction to make a determination in the matter at all.  It cannot be assumed that the mention of a federal statute confers jurisdiction on this Court.  In order to obtain damages for the allegation that the respondent wrongfully refused to withdraw charges claimed from the applicant for the four disputed calls, fraudulently engaged in a "cover-up", infringed on the applicant's right to access to telecommunication by disconnecting his phone and, in this process, mismanaged the dispute with the applicant, the applicant would need to establish a "federal matter".  Although this point is fundamental, other factors have led to my final decision in the matter.

7. In an affidavit dated 29 March filed with his application, and in his statement of claim dated 28 May, the applicant provided extensive documentation supposedly to support his claims.  The majority of this material is completely irrelevant to these proceedings and appears to have been used by the applicant as an opportunity to voice his complaints and promote his general social views.  The material certainly shows the extensive correspondence he has undertaken with a variety of people, including US President Clinton and former Speaker of the US Congress Newt Gingrich on such matters as the Monica Lewinsky affair, the Kosovo crisis and the deportation of non-citizens from Australia, as well as correspondence in relation to his appointment as a part-time lecturer at the University of Western Sydney and his accreditation as what is called a "Paraprofessional Translator".  This material, the applicant suggests, is an indication of the potential effect of the disconnection of his telephone.  In "Part One" of his statement of claim he explains:

   The Applicant's public involvement is both international, local and invaluable, ranging from world stage, Australia's affairs to neighbourhood matters, to name just a few from hundreds.  The Applicant decides how and when to communicate with the world leaders, family, friends and etc..

   The documentation supplied, he says, substantiates this "public involvement".

8. On 25 May, during the first directions hearing of this matter, Telstra filed in Court a motion seeking:

   1.That the Application be dismissed generally on the basis that it is embarrassing, discloses no reasonable cause of action and is otherwise an abuse of the Court's processes under Order 20 rule 2 of the Rules.

   2.Further or in the alternative, that the Application be struck out on the basis that it is embarrassing, discloses no reasonable cause of action and is otherwise an abuse of the Court's processes under Order 11 rule 16 of the Rules.

   3.That the Applicant pay the Respondent's costs.

9. This motion for summary judgment was returned immediately and served on the applicant in Court.  It was then stood over to the hearing of the case and I ordered written submissions on the issues it raised.  At the directions hearing I also ordered that the respondent include in its submissions a statement as to whether any cross-examination of the applicant is desired.  In the last paragraph of its submissions, the respondent stated:

   If the Court is satisfied that it has jurisdiction and that the matter is not liable to be dismissed summarily, then the matter should not be determined on a final basis based on documentary evidence alone.  Instead, the matter should proceed to a hearing in the normal course.  This would include an oral hearing where the Respondent would wish to cross-examine the Applicant and the deponents of any other affidavits relied on by the applicant.

   The motion for summary judgment does not in terms challenge jurisdiction but the Court must still be satisfied that jurisdiction exists.  The applicant's claim is so diffuse that it must be doubted whether this Court does have jurisdiction to deal with it in its present form.  Rather than dealing with the matter on that basis, I prefer to proceed by assuming jurisdiction.  The documentary evidence suffices for the purpose of making a decision on the motion for dismissal.

10. In what is called a "Briefing Technical Document" dated 12 April 1999, created in relation to the applicant's complaint and exhibited to the affidavit of Michael Tapper, a forensic analyst employed by Telstra, it is stated:

    Telstra's records do not show any fault report having been lodged against telephone service [phone] and there is no record of any alteration to the service since it was connected.

    At the time the disputed calls to The Seychelles was [sic] made (19 June 1998) there were three persons residing at Mr Dai's premises.  These were the lessee of the telephone service (Mr Dai), Mr Wan Wen-Qi, and Mrs Chen Xia.

    Also during this period, calls, other than local calls initiated from telephone service [phone] were billed by one of three providers, Telstra, Globetalk/Primus and Digiplus.  The Carrier/Service Provider used for any given call could be selected by prefacing the dialled number with a four digit code.  Mr Dai also mentions a fourth Service Provider in his correspondence (Telegroup).
    …
    The service in The Seychelles has been identified by Telstra's Network Technology Group and Multimedia (NTG&M), International Division, as a Chinese language adult fantasy/chat voice-based service in the Mandarin dialect.

    An inspection on 8 April 1999 of the Telstra plant and cabling associated with Mr Dai's service, still intact four months after its cancellation as the number was not reallocated to another customer, found no evidence of tampering or interference with cabling and no indication of current or past multiple connection.

11. The applicant annexed to his affidavit a statutory declaration of Mrs Chen Xia in which she said that on the days and at the times in question she was sleeping on the sofa in the lounge room of Mr Dai's home, close to the telephone.  She stated that she did not and does not know anyone who would have made the calls to the Seychelles. The Court file also contains a document headed "Statement" from Mr Wan Wen-qi, the third resident in Mr Dai's home.  He also stated that he did not make the calls and did not hear anyone else making them.  He was not aware that one of the calls had been completed a matter of seconds before his 4 second overseas call to China to number 0011862164171787 at 8:37am on 19 June, dialled through an alternative provider, Primus Telecommunications, and appearing on its account statement of 20 July 1998.  Another call, this time a 2 second local connection, was made on the Telstra account at 8:37:13.  Yet another local call was made on the Telstra account for 2 mins 1 sec at 8:38:04.  These calls have some relevance because of their proximity to each other and to the last of the disputed calls, and because none of them are disputed.  The statements from the other residents do not provide proof that the calls to the Seychelles were not made from the applicant's phone and that his number was thus wrongfully disconnected. 

12. Telstra submitted:

    3.1The contractual terms governing the supply of services by the Respondent to all customers, including the Applicant, are the terms and conditions set out in the Respondent's Standard Form of Agreement: s479(2) of the Telecommunications Act 1997 (Cth). Included in this Agreement are the General Terms and Conditions ("GTC").

    3.2Section 7.1 of the GTC states that:

    "The customer is liable to Telstra for all Charges in relation to a Service whether or not the Customer authorised the particular use of that Service by another person".

    Following a number of investigations the Respondent has concluded that the call charges in dispute are correct and the calls were made from the Applicant's telephone service, although it is not possible to confirm the identity of the person who made these calls.

    3.3Section 10.3 of the GTC states, relevantly, that:

    "Telstra may suspend, limit or cancel a Service if:
    …

    ·   The customer does not pay a bill by the date for payment."

    The four disputed calls were made on 19 June 1998 and included in the Applicant's 21 June 1998 bill, with payment due by 10 July 1998.  The Applicant did not pay the bill for the disputed calls and was sent an overdue notice on 10 July 1998.  This was followed by a disconnection notice dated 6 August 1998.  The Applicant's service was then temporarily suspended between 25 August 1998 and 3 September 1998.

    Following the continued non-payment of the disputed amount, the Applicant's service was again suspended on 28 October 1998 and finally cancelled on 20 November 1998.  This was in accordance with the Respondent's GTC.

13. The applicant has not challenged this legal basis for Telstra's claim of entitlement to terminate his service.  Nor has he presented any evidence that the disconnection of the applicant's telephone service was carried out in breach of Telstra's General Terms and Conditions which bound him in this situation.  There is therefore no basis for his claim that his telephone service was wrongfully terminated. 

14. Order 20 rule 2(1) of the Federal Court Rules states:

    Where in any proceeding it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceeding:

    (a)no reasonable cause of action is disclosed;

    …
    the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.

    In Alan Roy Hancock v Visy Board Pty Ltd (unreported, 13 February 1997), R D Nicholson J stated in relation to summary dismissal pursuant to that rule:

    The question which the Court must decide is not whether the applicant would probably succeed in his action, but whether the material now before the Court is such that the action should not be permitted to go to trial in the ordinary way because it is apparent it must fail: Webster v Lampard (1993) 177 CLR 598 at 547. The power of dismissal is one the Court should exercise with "exceptional caution".

15. In my view this case is in the rare category identified by his Honour.  The applicant has not pleaded a claim that Telstra has acted in breach of its contract with him in disconnecting his telephone service.  If he had done so, the matter would not, without more, have been within this Court's jurisdiction.  On the matters he has pleaded, he has evidenced nothing which could even raise an issue, let alone substantiate, that he is entitled to any relief under or pursuant to the Telecommunications Act.  The case as pleaded must therefore fail.  The application is dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO.

Associate:

Dated:             6 September 1999

The applicant was unrepresented.
Solicitor for the Respondent:	Mr Simon Snow (Blake Dawson Waldron)
Written submissions completed:	1 July 1999
Date of Judgment:	6 September 1999