Dai v Telstra Corporation Ltd

Case [2000] FCA 379

FEDERAL COURT OF AUSTRALIA

Dai v Telstra Corp Ltd [2000] FCA 379

TRADE PRACTICES – unconscionable conduct – application alleging wrongful disconnection of telephone service for non-payment for calls allegedly not made and alleged systematic deception and delay in investigation of complaint – purported appeal from summary dismissal of application – whether leave required – whether jurisdiction in Federal Court – whether conduct alleged arguably unconscionable within s 51AB of the Trade Practices Act 1974 (Cth) – whether factual dispute rendering final judgment inappropriate

WORDS AND PHRASES – “unconscionable conduct”

Federal Court Rules O 20 r 2(1)
Telecommunications Act 1997 (Cth) s 479(2)
Trade Practices Act 1974 (Cth) ss 51AB, 87(1A)

Alan Roy Hancock v Visy Board Pty Ltd (unreported, 13 February 1997, R D Nicholson J) mentioned

Weatherall v Satellite Receiving Systems (Australia) Pty Ltd [1999] FCA 741 applied
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied
Blomley v Ryan (1956) 99 CLR 362 mentioned
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 mentioned
Louth v Diprose (1992) 175 CLR 621 mentioned
Marks v GIO Australia Holdings Ltd (1998) 158 ALR 333 applied

DAI RONG-HUA v TELSTRA CORPORATION LIMITED

N 1083 of 1999

HILL, HEEREY and HELY JJ
31 MARCH 2000
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1083 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

BETWEEN:

DAI RONG-HUA
Appellant

AND:

TELSTRA CORPORATION LIMITED (ACN 015 775 556)
Respondent

JUDGES:

HILL, HEEREY and HELY JJ

DATE OF ORDER:

31 MARCH 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appellant have leave to appeal.

2.The appeal is allowed.

3.The order of 6 September 1999 is set aside and in lieu thereof it is ordered that the respondent’s motion by notice dated 24 May 1999, insofar as it sought summary judgment, be dismissed.

4.Save as aforesaid the said motion be remitted to the trial judge for such orders and further directions as may be appropriate.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1083 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

BETWEEN:

DAI RONG-HUA
Appellant

AND:

TELSTRA CORPORATION LIMITED (ACN 015 775 556)
Respondent

JUDGEs:

HILL, HEEREY and HELY JJ

DATE:

31 MARCH 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE COURT

  1. The appellant brought an application based on the alleged wrongful disconnection of his telephone service by the respondent Telstra Corporation Limited (“Telstra”) and its subsequent conduct in dealing with his complaints.

  2. On 6 September 1999 a judge of this Court dismissed the application under Federal Court Rules O 20 r 2(1).  His Honour held it was apparent the application must fail.  His Honour noted that there was doubt as to the Federal Court’s jurisdiction but did not dispose of the matter on that basis.

    Background facts

  3. The appellant was a subscriber for telephone service no (02)…

Continue reading Dai v Telstra Corporation Ltd

Sign in free to access the full text

Details
AGLC
Dai v Telstra Corporation Ltd [2000] FCA 379
Case
[2000] FCA 379
Decision Date

CaseChat Overview and Summary

Dai v Telstra Corporation Ltd concerned a dispute between a subscriber, Mr Dai, and Telstra Corporation Ltd, an Australian telecommunications company. Mr Dai claimed that Telstra had billed him for four overseas calls which he denied making, leading to his phone service being disconnected for non-payment. After investigations by both Telstra and the Telecommunications Industry Ombudsman (TIO) found no evidence to support Mr Dai's claims, he sought compensation and an apology from Telstra. The Federal Court was tasked with determining whether it had jurisdiction to hear Mr Dai's claims and, if so, whether summary judgment should be granted in favour of Telstra. The court considered the nature of Mr Dai's allegations, the evidence presented by both parties, and the contractual terms governing the telecommunications service.

The primary issue before the court was whether it had jurisdiction to hear Mr Dai's claims and, if so, whether summary judgment should be granted in favour of Telstra. The court had to examine the scope of its jurisdiction under the Telecommunications Act 1975 (Cth) and determine whether Mr Dai's claims fell within the court's authority. The court also needed to assess the merits of Mr Dai's claims against the evidence presented by Telstra and the TIO. Specifically, the court had to decide whether there was sufficient evidence to support Mr Dai's allegations of harassment, mistreatment, and mismanagement by Telstra.

The court found that it did have jurisdiction to hear Mr Dai's claims, despite their diffuse and somewhat incoherent nature. The court noted that while there was doubt about the jurisdiction, it was preferable to proceed on the assumption that it did exist. The court also considered the evidence provided by both parties. Telstra provided technical evidence indicating that the disputed calls had indeed been made from Mr Dai's phone number. There was also evidence that Mr Dai's phone service had been disconnected due to non-payment of the disputed charges. Mr Dai's evidence, which included statements from other residents claiming they did not make the calls, was not sufficient to counter Telstra's evidence. The court concluded that Mr Dai's claims lacked merit and that summary judgment should be granted in favour of Telstra. The court set aside the earlier order dismissing Mr Dai's application and remitted the matter to the trial judge for further orders and directions.

Orders

Orders of the court

1. The appellant have leave to appeal.

2. The appeal is allowed.

3. The order of 6 September 1999 is set aside and in lieu thereof it is ordered that the respondent’s motion by notice dated 24 May 1999, insofar as it sought summary judgment, be dismissed.

4. Save as aforesaid the said motion be remitted to the trial judge for such orders and further directions as may be appropriate.

Background

Background to the litigation

On 6 September 1999 a judge of this Court dismissed the application under Federal Court Rules O 20 r 2(1). His Honour held it was apparent the application must fail. His Honour noted that there was doubt as to the Federal Court’s jurisdiction but did not dispose of the matter on that basis.Background facts The appellant was a subscriber for telephone service no (02) 9759 6028. 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 phone service in the Seychelles. According to Telstra’s records the calls were made at 2.09 am (19 mins 57 sec), 8.29 am (12 sec), 8.31 am (1 min 56 sec) and 8.34 am (2 min 27 sec). Telstra says that undisputed calls were made from the appellant’s number shortly before and after the four disputed calls. On 29 June 1998 the appellant contacted Telstra’s billing service and claimed no such calls were made. A number of investigations were made by Telstra which it says confirmed the validity of the charges. On 28 October 1998 the appellant’s service was disconnected for non-payment of the disputed amount. The service was cancelled on 20 November 1998. The appellant wrote to the New South Wales Office of Fair Trading (“OFT”) on 1 September 1998 in relation to the billing dispute and the pending disconnection. The OFT forwarded the letter to the Telecommunications Industry Ombudsman (“TIO”) on 16 October. In the period from October to December correspondence passed between the TIO and the appellant in which the TIO sought to clarify the nature of the complaint and obtain information from him 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. The TIO wrote to the appellant on 2 February 1999 stating that without further evidence it would be unable to recommend that Telstra amend its charges. The appellant having disputed that decision, the matter was referred to a TIO Investigations Manager who, in a letter dated 22 February, reaffirmed the decision. The Investigations Manager stated that without further evidence there were no grounds for a further investigation of the appellant’s complaint.The appellant’s claim On 29 March 1999 the applicant filed an application in this Court. At all times the applicant has been legally unrepresented. The application is stated to be made under “Telecommunications Act (Commonwealth) 1975”. Under the heading “Details of Claim” in the printed form the following appears:“1. 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 in compensation for its persistent cover-up, deception and harassment.2. 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’s books 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.3. The applicant does not have any non-payment with any phone companies in Australia or 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 in compensation for such insult.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Under paragraph 3 it is alleged “Telstra humiliates the applicant”. Under the heading “Particulars of harassment, mistreatment, mismanagement and etc” there are some thirteen items. These allege, for example, that before the dispute was finalised Telstra cut off the appellant’s phone service twice, kept sending overdue notices, charged a “floating amount of overdue”, “resisted to resolve the dispute with the (appellant) and connect the appellant’s phone service under TIO’s direction”, and “being a monopoly, not attempting to resolve the dispute, Telstra harassed the (appellant) by taking legal action”. Under the heading “Relief Sought” a claim is made that “Given the grave nature and circumstances in particulars of fraud and particulars of harassment, mistreatment, mismanagement etc in the above and supporting document, the (appellant) seeks relief for $1,000,000”. A further claim is made for a “legal costs of $525,067.80 plus disconnection days at $40.00 per day and refund of twenty local calls per month back in 1989”. Also “the (appellant’s) roommates seek relief of a full refund of mobile phone expenses plus inconvenience”. Finally the appellant 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 apologise in writing to and accepted by the (appellant)”.Judgment of the primary Judge After outlining the nature of the appellant’s claim his Honour said:“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.” His Honour noted evidence by a Telstra forensic analyst that Telstra’s records did not show any fault report having been lodged against the appellant’s telephone service and no record of any alteration to the service since it was connected. The analyst recorded that at the time of the disputed calls there were two persons in addition to the appellant residing at the premises. Calls, other than local calls, were made during the period from the service. An inspection four months after cancellation showed plant and cabling associated with the service were still intact. The number had not been reallocated to another customer. There was no evidence of tampering or interference with cabling and no indication of current or past multiple connection. The appellant produced evidence from the two other residents to the effect that they did not make calls to the Seychelles and did not hear anyone else making them. There were other undisputed calls made in close proximity to the disputed calls. His Honour noted that Telstra relied on the contractual terms governing the supply of services by it to all customers. The standard form of agreement under s 479(2) of the Telecommunications Act 1997 (Cth) included General Terms and Conditions (“GTC”). Section 7.1 of GTC states:“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.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.