Dalton v Qantas Airways Ltd

[2020] NSWCATCD 2

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Dalton v Qantas Airways Ltd; Dalton v Morrison [2020] NSWCATCD 2

Hearing dates:

10 July 2020

Date of orders:

17 July 2020

Decision date:

17 July 2020

Jurisdiction:

Consumer and Commercial Division

Before:

M Harrowell, Deputy President

Decision:

1. By consent, the name of the respondents in application GEN 20/16147 is amended as follows:

a) the first respondent is Qantas Airways Ltd;

b) the second respondent is Jetstar Airways Pty Ltd

2. By consent, pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the name of the respondents’ representative at the hearing on 10 July 2020 in application GEN 20/16147 is not to be disclosed to the applicant or any non-party, the representative to be known for the purpose of these proceedings as the “Jetstar Representative” and the Jetstar Representative is given leave to represent the respondents for the purpose of the hearing on 10 July 2020 only.

3. By consent, in application GEN 20/17371 leave is given to the respondent to be legally represented for the purpose of the hearing on 10 July 2020 only.

4. The Tribunal declines to deal with applications GEN 20/16147 and GEN 20/17371 as it has no jurisdiction to determine these proceedings.

Catchwords:

CONSTITUTIONAL LAW – federal matter – jurisdiction of the Tribunal to determine – Part 3A of the Civil and Administrative Tribunal Act, 2013 – “Federal proceedings” – administrative functions of Tribunal when dispute involves federal jurisdiction.

Legislation Cited:

Civil and Administrative Tribunal Act, 2013 (NSW)

Civil Aviation (Carriers’ Liability) Act 1959 (Cwth)

Commonwealth Constitution

Consumer Claims Act 1998 (NSW) (repealed)

Fair Trading Act, 1987 (NSW)

Judiciary Act, 1903 (Cwth)

Residential Tenancies Act, 2010 (NSW)

Cases Cited:

Attorney General for New South Wales v Gatsby [2018] NSWCA 54

Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns; New South Wales v Burns [2018] HCA 15

Di Liristi v Matautia Developments Pty Ltd [2020] NSWSC 862

Jenkinson v Chaw [2015] NSWCATAP 127

Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275

Category:

Principal judgment

Parties:

GEN 20/16147

Applicant: Bradley Dalton
Respondent: Scott Morrison;

GEN 20/17371

Applicant: Bradley Dalton
First Respondent: Qantas Airways Ltd
Second Respondent: Jetstar Airways Pty Ltd

Representation:

GEN 20/16147

Applicant: In person
Respondent: Jetstar Representative

Solicitors

Not applicable

GEN 20/17371

Applicant: In person
Respondent: James Anderson (Solicitor)

Solicitors

Applicant: Not applicable
Respondent: Australian Government Solicitor

File Number(s):

GEN 20/16147; GEN 20/17371

Publication restriction:

See order re name of respondents’ representative in application GEN 20/16147

REASONS FOR DECISION

1. These reasons relate to two applications brought by Mr Dalton (Mr Dalton’s applications) arising from an international flight which he had booked from Sydney to Phuket, Thailand. The flight was scheduled to depart Sydney on 30 March 2020. Prior to the date of departure, the flight was cancelled in circumstances relating to the COVID-19 pandemic (pandemic) and decisions made by the airline carrier and the Australian Government concerning travel overseas.

2. The first application, GEN 20/16147, was brought by Mr Dalton against “Qantas/Jetstar” (Jetstar application). In that application Mr Dalton says that the flight was cancelled by Jetstar who issued him with a refund for the price of his ticket. Mr Dalton says he was unable to return to Phuket, where he has resided for 10 years and that Jetstar “issued the refund and “No Fly Notification” in order to avoid honouring the terms and conditions”. Mr Dalton claims an amount of $5,760 being compensation for accommodation and meals arising from the cancellation. He says he “cannot fly home to Phuket because [Jetstar] did a deal with the AUS government who offered them 700 million to cancel all international flights”.

3. The second application, GEN 20/17371, is brought by Mr Dalton against the Prime Minister, the Hon Scott Morrison MP (Morrison application). This is a claim for $11,160 also being accommodation and meal expenses incurred in consequence of the cancellation of the Jetstar flight. In this application, Mr Dalton said:

I have no family, friends, connections or support in NSW and I am forced to stay here because [the Prime Minister] uses taxpayer funds to pay Qantas to stop flying. This is a decision he has made as the leader of the governing party in Australia. Jetstar, owned by Qantas, have stated cancellation of flights is beyond their control because the government has banned them from flying. This means the terms and conditions I agreed to at the time of purchasing the Jetstar ticket are void resulting in no compensation for accommodation or meals for ticketholders who are stuck at away from home airports (sic).

…

The Prime Minister, Scott Morrison did a deal with CEO of Qantas, Alan Joyce, where he offered Approx $750 million dollars to cancel/control flights in/out of Australia. Qantas, the owner of Jetstar, accepted the money, cancelled most flights, including my own, forcing me to accommodate myself in Sydney at my own expense since the flight was cancelled on 28 March.

4. In light of the claims made, the Tribunal determined that both applications should be listed for directions. The reason for doing so is that, in the Jetstar application, the parties had not been properly named and the Tribunal had identified various jurisdictional issues in both applications that may affect its ability to hear and determine the claims. In part, these jurisdictional issues arose from the fact that the dispute related to the liability of a carrier upon cancellation of an international flight. Also, in the Morrison application, the Prime Minister was being sued in connections with decisions made by the Australian Government arising from the pandemic.

5. On 6 July 2020, the Tribunal made the following orders and provided reasons for those orders:

1. Application GEN 20/16147 (Dalton v Qantas/Jetstar) is listed for conciliation, directions and/ or for at 11:45 am on 10 July 2020 with application GEN 20/17371 (Dalton v Morrison).

2. The parties will be advised of dial in arrangements for the hearing.

3. Issues of leave for parties to be legally represented will be dealt with at the hearing on 10 July 2020.

4. The parties should be in a position to deal with following matters:

a. Amending application GEN 20/16147 to record the proper names of the respondents (Qantas and Jetstar);

b. In respect of application GEN 20/17371, whether it is a consumer claim within the meaning of the Fair Trading Act, 1987.

c. Whether in respect of each of the claims they raise a matter of federal jurisdiction within the meaning of Part 3A of the Civil and Administrative Tribunal Act, 2013 applies because:

i. In the case of application GEN 20/16147 the documents filed by the respondents appears to raise issues in connection with a defence under a relevant international convention for the carriage of passengers by aircraft,

ii. The claim in application GEN 20/17371 appears to be against Mr Morrison in his capacity as Prime Minister;

iii. Any other matter which might affect the Tribunal determining this matter.

5. On or before 12 noon on 9 July 2020 parties are to file and serve on all other parties in both proceedings a brief outline of submissions, not more than 3 pages, in respect of their position concerning the matters identified in orders 3 and 4.

Reasons:

Claims are made by the applicant concerning international air tickets that were apparently cancelled because of the COVID-19 pandemic. The [above] applications are said to arise out of this event, inter alia a claim being made for consequential loss said to have been suffered due to the inability to travel. There are common issues and various jurisdictional matters that make it appropriate to list both applications together.

.

6. A further issue arose concerning representation. The representative for Qantas/Jetstar sought an order that her identity be suppressed and that she be anonymised.

7. The applications were listed for hearing on 10 July 2020.

Hearing on 10 July 2020 and preliminary matters

8. Pursuant to the directions made by the Tribunal, the parties in each of the applications filed evidence and submissions. All parties appeared at the hearing on 10 July 2020 by video link.

9. At the outset of the hearing, various procedural matters were dealt with.

10. First, it was agreed the name of the respondent “Qantas/Jetstar” should be amended by consent. Accordingly, I made the following order:

By consent, the name of the respondents in application GEN 20/16147 is amended as follows:

The first respondent is Qantas Airways Ltd;

The second respondent is Jetstar Airways Pty Ltd.

11. Secondly, in the Jetstar application, it was agreed that an order should be made pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) suppressing the name of the representative for the respondents and that, for the purpose of the hearing on 10 July 2020 only, she be given leave to appear using the name “Jetstar Representative”. Accordingly, I will make the following order:

By consent, pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the name of the respondents’ representative at the hearing on 10 July 2020 in application GEN 20/16147 is not to be disclosed to the applicant or any non-party, the representative to be known for the purpose of these proceedings as the “Jetstar Representative” and the Jetstar Representative is given leave to represent the respondents for the purpose of the hearing on 10 July 2020 only.

12. Thirdly, in the Morrison application, it was agreed that the Prime Minister should have leave to be legally represented at the hearing on 10 July 2020 only. Accordingly, I made the following order:

By consent, in application GEN 20/17371 leave is given to the respondent to be legally represented for the purpose of the hearing on 10 July 2020 only.

Consideration

13. Two matters arise for determination in respect of the above applications.

Claim against the Prime Minister not a “consumer claim”

14. First, was an application by the Prime Minister for the claim against him to be summarily dismissed. In short, it was submitted that the claim was not a consumer claim within the meaning of Division 1 of Part 6A the Fair Trading Act, 1987 (NSW) (FT Act).

15. While the Prime Minister accepted that Mr Dalton was a consumer within the meaning of ss 79D and 79H of the FT Act, and that he had sought “payment of a specific sum of money” as permitted by s 79E(1)(a) of the FT Act, the respondent said it would not be correct to categorise any actions of the Prime Minister “as being concerned in the supply of goods and services”. Otherwise, the respondent submitted there was “no other basis to assert the application of the [FT Act] to the actions of the Prime Minister”, that the Prime Minister could not be found to have engaged in the supply of goods or services to the applicant as envisaged by the definition of a “consumer claim” in s 79E and there was no other claim which could be brought under the legislation governing the jurisdiction of the Tribunal.

16. Consequently, it was submitted the proceedings should be summarily dismissed.

17. Mr Dalton, who was not legally represented, provided a response to the following effect.

18. Mr Dalton had purchased from Jetstar a ticket to travel from Sydney to Phuket. This constituted the supply of services by Jetstar. Jetstar withdrew the services or failed to supply the services in consequence of action taken by the Prime Minister or the Australian Government. The actions taken by the Prime Minister were not lawful. In this regard, Mr Dalton referred to the (Overseas Travel Ban Emergency Requirements) Determination 2020 (Travel Ban Determination) issued by the Hon Greg Hunt, Minister for Health for the Australian Government. Relevantly, the Determination provided as follows:

5. Person is not to travel outside Australian territory after 12 PM, 25 March 2020:

(1) An Australian citizen or permanent resident (the person) must not leave Australian territory as a passenger on an outgoing aircraft or vessel on or after the time this instrument commences unless:

(a) an exemption set out in section 6 applies to the person;

…

6. Exemptions – general

An exemption from the requirements in section 5 applies to the following persons:

(a) a person ordinarily resident in a country other than Australia;

…

19. Consequently, Mr Dalton asserts he was lawfully entitled to leave Australia and the actions of the Prime Minister or the Australian Government interfered with his lawful rights and improperly caused Jetstar to cancel his flight. While not articulated with any precision by Mr Dalton, the nature of the allegation was one of interference with his contractual rights or the making of representations to Jetstar that he was not authorised to travel overseas.

20. The challenge by the Prime Minister in the present case appeared limited to the jurisdiction granted to the Tribunal under the FT Act to hear and determine the dispute, not whether a cause of action might be available in circumstances where the Prime Minister or Australian Government had acted unlawfully in preventing an air carrier from providing carriage to a passenger with whom it had a contract.

21. Section 79E(1) of the FT Act provides:

For the purposes of this Part, a consumer claim means a claim by a consumer, for one or more of the following remedies, that arises from a supply of goods or services by a supplier to the consumer (whether or not under a contract) or that arises under a contract that is collateral to a contract for the supply of goods or services:

22. As provided in s 79E(1)(a) of the FT Act, one of those remedies is “the payment of a specified sum of money”. For present purposes, the respondent has conceded the applicant is a consumer and that he is seeking a remedy available under the FT Act.

23. The only issue is whether the proceedings should be summarily dismissed as the nature of Mr Dalton’s claim is not one “that arises from the supply of goods or services by a supplier to the consumer”.

24. The Tribunal has power to summarily dismiss an application if it considers “the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance”: s 55(1)(b) of the NCAT Act. However, proceedings should not be summarily dismiss as being frivolous and vexatious where there is a real question to be determined, whether of fact or law: Di Liristi v Matautia Developments Pty Ltd [2020] NSWSC 862 per Wright J at 24 and following and the cases referred to therein.

25. In written submissions, the respondent submitted that any claim against the Prime Minister in the present circumstances could not be said to be a claim that arises from a supply of goods or services by a supplier. The Prime Minister in the present case was not a supplier of goods and services to a consumer. However, in oral submissions, the solicitor for the Prime Minister accepted that if the Prime Minister (acting in that capacity) or the Australian Government acted unlawfully, legal liability could attach to that conduct if it caused damage.

26. The Tribunal drew to the attention of the parties the decision of the Appeal Panel in Jenkinson v Chaw [2015] NSWCATAP 127 (Jenkinson). In that case, the Appeal Panel was considering the definition of a consumer claim found in s 3A of the Consumer Claims Act 1998 (NSW) (repealed). Relevantly, s 3A defined a consumer claim in the same terms as found in the FT Act, namely as one “that arises from a supply of goods or services by a supplier to the consumer, whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of goods and services”.

27. At [28], the Appeal Panel in Jenkinson said:

Rather than being limited to a claim against a supplier, a “consumer claim” is defined in the [Consumer Claims Act] by reference to the nature of the relief sought by the consumer and a causative relationship between the claim and the supply. A consumer claim is not defined by reference to the identity of the party sued. The causative relationship is expressed in words of broad import, namely that the claim “arises from” a relevant supply.

28. Then at [31] the Appeal Panel continued:

Whether the required relationship between the claim and the supply exists for the purpose of jurisdiction must be determined by a correct analysis of the assertion made by the claimant: Archom Ltd v Consumer Claims Tribunal (Supreme Court (NSW), Simpson J, 29 September 1995, unrep, at 16).

29. As can be seen from the above passages, a consumer claim does not require the person against whom proceedings are brought to be the supplier. Nor must the claim arise under a contract between the consumer and the person against whom the claim is made. Further, it is necessary to have regard to the nature of the claims made and properly analyse them in the context of the relevant legislation.

30. The parties have not yet provided all their evidence concerning the circumstances of what occurred. As with ordinary Tribunal proceedings, there are no pleadings to precisely define the issues in dispute. However, there is some evidence that the “no-fly” ban on international travel did not apply to Mr Dalton if he was resident in another country and that the actions of the respondent may have caused Jetstar to cancel Mr Dalton’s flight.

31. The arguments presented so far concern whether or not the events the subject of this dispute could ever give rise to a consumer claim within the meaning of the FT Act. As presently informed, in light of the authorities to which I have referred, I am not satisfied that the application brought by Mr Dalton could be described as untenable or otherwise frivolous or vexatious.

32. Consequently, I am not satisfied the Morrison application should be summarily dismissed.

Do the applications raise a federal matter about which NCAT has no jurisdiction to determine?

33. The second question that arises for determination relates to both of Mr Dalton’s applications. That question is whether the claims made by Mr Dalton give rise to the exercise of federal jurisdiction and raise a federal matter. If they do, the Tribunal does not have jurisdiction to determine the claim.

34. Aside from an appropriate Federal Court, under Chapter III of the Commonwealth Constitution (Constitution) only a court of a State can exercise federal jurisdiction and then, only in respect of matters for which jurisdiction is not exclusive to the High Court and for which a court of a State is invested with power pursuant to s 77 of the Constitution. For present purposes, federal jurisdiction means matters arising under ss 75 or 76 of the Constitution. That includes “any matter … arising under any law made by the [Commonwealth] Parliament”: s 76(ii) of the Constitution. Such conferral is done by the Judiciary Act, 1903 (Cwth).

35. In Attorney General for New South Wales v Gatsby [2018] NSWCA 54 (Gatsby) the Court of Appeal decided that this Tribunal had no jurisdiction to determine a matter arising under s 75(iv) of the Constitution (which dealt with disputes between residents of different States). This was because the Tribunal was exercising judicial power in respect of a federal matter and was not a court of a State for the purpose of Chapter III of the Constitution: Bathurst CJ at [125]-[128] and [184]-[192]; Beazley P, McColl JA and Leeming JA agreeing re judicial power and Beazley P, McColl JA, Basten JA and Leeming JA re court of a State (references omitted). Consequently, disputes between residents of different States in which a landlord was seeking an order for termination of a residential tenancy agreement under the Residential Tenancies Act, 2010 (NSW) could not be determined by the Tribunal, the matter falling to be dealt with under the then Part 3A of the NCAT Act.

33. Having determined the Tribunal did not have jurisdiction to deal with the application, the Court in Gatsby made an order remitting the proceedings to the Tribunal “to be dealt with in accordance with Part 3A of the Civil and Administrative Tribunal Act, 2013 (NSW)”. I infer from this order that, while unable to determine the dispute in Gatsby, the Tribunal did have an administrative role in connection with the application made to the Tribunal in consequence of the provisions of Part 3A. Such administrative action might include:

1. declining to deal with the proceedings because the Tribunal lacks jurisdiction;

2. making an administrative decision to dismiss the application because of the lack of jurisdiction;

3. providing relevant documents to a court for the purpose of determining any leave application under s 34B(3) of the NCAT Act or for the purpose of a court determining an application under s 34C in consequence of the grant of leave; or

4. complying with any orders under s 34C(1)(b) of the NCAT Act a court which might make “in relation to the Tribunal” to “facilitate its determination of the application that might be made

37. At that time, Part 3A was titled “Diversity Proceedings” and dealt with “federal diversity jurisdiction” which meant “jurisdiction of the kind referred to in section 75 (iv) of the Commonwealth Constitution”: definitions - s 34A of the then NCAT Act. This meant a person unable to pursue their claim in the Tribunal because it involved federal diversity jurisdiction could seek leave of a court to continue with their claim in that court: ss 34B and 34C of the then NCAT Act.

38. Since the decision in Gatsby, Part 3A of the NCAT Act has been amended. It is now titled “Federal proceedings”. In the current Part 3A “federal jurisdiction” means jurisdiction of the kind referred to in section 75 or 76 of the Commonwealth Constitution: definitions - s 34A NCAT Act. However, the procedural requirements for leave and continuation of proceedings in a court after leave is granted as provided in ss 34B and 34D remain the same. That is, leave can be sought from a court by a person who has lodged an application in the Tribunal to continue with that claim in the court when the claim involves federal jurisdiction.

39. In both of Mr Dalton’s applications, Mr Dalton seeks damages against the respective respondents. These damages relate to costs incurred due to Mr Dalton being delayed from returning to his place of residence in Thailand, where he has resided for 10 years. In the Jetstar application Mr Dalton says the respondents breached the contract for international air carriage between Sydney and Phuket Thailand. In addition, it would seem Mr Dalton alleges there has been a failure to provide services to a consumer, matters which might give rise to claims under relevant consumer legislation. In the Morrison application, as stated above, the claim by Mr Dalton appears to relate to the unlawful interference by the Prime Minister or the Australian Government with the travel arrangements Mr Dalton had with Jetstar. Mr Dalton asserts the Prime Minister or the Australian Government had no power to interfere with his travel arrangements as he was not subject to the Travel Ban Determination because of the exemption in section 6 of that Determination.

40. In the Jetstar application, the respondents say they have no liability for the amount claimed because it represents delay damages. The respondents say delay was beyond their control and there were no steps they could have taken to avoid the loss. They rely on the terms of the contract the carriage which they say excludes liability in the present circumstances. They also rely on the Convention for the Unification of Certain Rules for International Carriage by Air (Montréal Convention), of which Australia is a signatory. The Montréal Convention operates in Australia by reason of s 9B of the Civil Aviation (Carriers’ Liability) Act 1959 (Cwth) (CACL Act). That section provides:

Subject to this Part, the 1999 Montreal Convention has the force of law in Australia in relation to any carriage by air to which the 1999 Montreal Convention applies, irrespective of the nationality of the aircraft performing that carriage.

41. Article 19 of the Montréal Convention provides:

Article 19 — Delay

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.

42. Amongst other things, a determination of the Jetstar application would involve the Tribunal in determining that there was an agreement, the terms of the agreement, whether the respondents had a defence because of the exclusion clause and the Montréal Convention (itself a law in Australia having regard to s 9B of the CACL Act) and whether Mr Dalton had failed to mitigate any loss or damage.

43. A determination of the Morrison application will involve a consideration of the above issues together with a consideration of whether the Prime Minister or the Australian Government acted in accordance with any relevant laws of the Commonwealth, including any law permitting the Travel Ban Determination.

44. In both of Mr Dalton’s applications, the Tribunal is required to determine the existence of a relevant contract or other legal obligation, a breach of the contract or legal obligation by one or more of the respondents and that Mr Dalton has suffered a compensable loss or damage in consequence thereof. In addition, the Tribunal must determine whether any defences raised by the respondents are made good.

45. Determining the existence of the contract, the existence of some relevant right of action and making orders to award damages in consequence of any breach constitutes the exercise of judicial power as it “settles for the future, as between defined persons, … [by] the existence of the right or obligation: Gatsby per Bathurst CJ (with whom Beazley P (at [197]) McColl JA (at [199]) and Leeming JA (at [279]) agreed) at [123] and following, particularly at [123] and [126].

46. Consequently, the Tribunal is unable to do so if it would require the exercise of federal jurisdiction: Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns; New South Wales v Burns [2018] HCA 15; Gatsby.

47. A summary of what constitutes a federal matter and the applicable principles to be applied in making such determination was set out by the Appeal Panel in Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275 (Murphy) at [22] and the cases referred to therein. Relevant to a resolution of the issue in the present case are the following principles:

1. to identify the “matter” it is necessary to identify the justiciable controversy: Murphy at [22(2)];

2. a federal matter will arise whenever the right, duty or enforcement owes its existence to federal law: Murphy at [22(6)];

3. a federal matter will also arise where the source of defence is a federal law: Murphy at [22(8)];

4. it is not necessary for the form of relief sought to depend on federal law: Murphy at [22(7)];

5. unless a federal issue is colourable, the whole of the proceedings is a federal matter requiring the exercise of federal jurisdiction: Murphy at [22(9)].

48. Having regard to the issues raised in Mr Dalton’s applications, which I have summarised above, it is clear that there is a claim or defence that arises under Commonwealth law in each of those applications. Therefore, both applications require the exercise of federal jurisdiction.

49. It follows from the above that the Tribunal does not have jurisdiction to determine these claims and declines to do so.

50. It is for the applicant in each of the applications to determine if he wishes to seek leave of a court as permitted by Part 3A of the NCAT Act. About that matter, and whether leave should be granted, I make no comment.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

20 July 2020 - Pursuant to s 63 of the NSW Civil and Administrative Tribunal Act 2013, orders published on 17 July 2020 are amended as follows:

20 July 2020 – Cases Cited “Shaw” corrected to "Chaw".

20 July 2020 – Paragraph 26 “Shaw” corrected to "Chaw" and inserted (Jenkinson)

Decision last updated: 20 July 2020