Maxwell v Bedding (Australia) Pty Ltd - [2016] ACAT 64

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MAXWELL v BEDDING (AUSTRALIA) PTY LTD
(Civil Dispute) [2016] ACAT 64

XD 186/2016
Catchwords: CIVIL DISPUTE – breach of contract – Australian Consumer Law – respondent outside of the ACT – whether ACAT has jurisdiction for consumer issues where the material events took place outside of the ACT – meaning of ‘material connection’

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 16, 22

Acts Interpretation Act1901 (Cth) s 15C
Competition and Consumer Act 2010 (Cth) sch 2
Fair Trading (Australian Consumer Law) Act 1992 ss 8, 9, 10, 11
Legislation Act 2001 s 139, 140
Magistrates Court Act 1930 s 262

Cases cited: Aramayo And Ors & Vardy And Ors [2011] ACAT 69

Australian Health Insurance Association Ltd v Esso Australia Pty Ltd [1993] FCA 376
Scentine Pty Ltd (t’as AKZ Vehicle Engineering) & Fabary and Hathaway [2010] ACAT 16
Voth v Manildra Flour Mills (1990) 171 CLR 538

List of Texts/
Papers cited: Butler, Susan (Ed) Macquarie Dictionary (online ed, at 1 June 2016)

Tribunal: Senior Member H Robinson

Date of Orders:  23 June 2016
Date of Reasons for Decision:         23 June 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          XD 186/2016

BETWEEN:
NAOMI MAXWELL
Applicant

AND:
BEDDING (AUSTRALIA) PTY LTD
Respondent

TRIBUNAL: Senior Member H Robinson

DATE: 23 June 2016

ORDER

The Tribunal Orders that:

The matter is dismissed for want of jurisdiction.

………………………………..
Senior Member H Robinson

REASONS FOR DECISION

Background

The respondent operates Forty Winks at Hawthorn in Victoria.
On 24 August 2014, the applicant purchased from the respondent a king sized bed-head, two bedside tables and two lingerie chests, all from the same ‘Chelsea’ bedroom furniture range. On 25 September 2014, she purchased a further tallboy from the same range. Both purchases were made at the respondent’s Hawthorn store.
Sometime after these purchases were made, the applicant and her partner moved to Canberra. The applicant incurred costs associated with transporting the bedroom suite (along with her other furniture) from Melbourne to the ACT.
The applicant claims that some items in the suite have warped. While the respondent has replaced the bed-head and centre rail on the bed frame, the applicant claims that, as a result, the appearance of the various items is now inconsistent. She seeks to return the entirety of the bedroom suite.
The respondent denies that it is required to replace the remaining furniture. In addition, in its response to the claim, the respondent has (amongst other things) questioned the Tribunal’s jurisdiction to hear the matter, on the basis that the majority of events the subject of these proceedings occurred outside of the Australian Capital Territory.

Jurisdictional Issue

The matter was set down for a directions hearing before Registrar Soper and I on 18 April 2016. Following that hearing, the parties agreed that Registrar Soper should attempt to conciliate the matter, notwithstanding the respondent’s concerns about jurisdiction. The parties further agreed that, should the conciliation be unsuccessful, I would decide the issue of jurisdiction ‘on the papers’ without the need for a further hearing. The conciliation was unsuccessful, so I must now consider that jurisdictional issue.
At the directions hearing, I also gave the parties the opportunity to file further submissions on the issue of jurisdiction. The applicant did so on 19 April 2016. The respondent, presumably, relies upon its original response.

Parties’ Arguments

The respondent’s submissions are as follows:
3. The respondent submits that the ACT Civil and Administrative Tribunal (“Tribunal”) does not have jurisdiction to hear or decide the applicant’s claim, on the grounds that:
a.   At all material times, the respondent and the applicant were resident in Victoria;
b.   The respondent is not currently, nor has it been previously, resident in the ACT; and/or
c.    The cause of action, or a material part of the cause of action, did not arise in the ACT.
4. Pursuant to section 22 of the ACT Civil and Administrative Tribunal Act 2008 the Tribunal has, in relation to civil dispute applications, the same jurisdiction and powers as the Magistrates’ Court has under the Magistrates Court Act 1930 (ACT) part 42 (Civil Jurisdiction)...
5. Relevantly, section 262 of the Magistrates Court Act states the following:
The Magistrates’ Court has jurisdiction to hear and decide a proceeding if –
(a)        The defendant was a resident in the ACT when the claim was served on the defendant, even though all the cause of action in the proceeding arose outside the ACT; or
(b)        Both of the following apply, even though the defendant was not in the ACT:
(i) A material part of the cause of action in the proceeding arose in the ACT even though part of the cause of action arose outside the ACT;
(ii)     The claim is served on the defendant in Australia or an external territory.
6.    At the time of the Agreement between the respondent and the applicant:
a.   The goods to which the claim relates were supplied in Victoria;
b.   The Agreement to which the claim relates was made in Victoria;
c.    The applicant was a resident of Victoria; and
d.   The respondent was wholly located in Victoria.
7. Prior to the applicant relocating from Victoria to the ACT, the applicant accepted delivery of all goods, and was aware, or ought reasonably have been aware, of any issues with the goods as outlined in the applicant’s claim.
8. If the applicant has a cause of action, which is denied, the cause of action arose, or materially arose, outside of the ACT.
9. It therefore follows that the Tribunal does not have jurisdiction to hear and decide the applicant’s claim.
The applicant’s position, as set out in her further submissions of 19 April 2016 is, relevantly, as follows:
Australian Consumer Laws
1. The Australian Consumer Laws (ACL) provide uniform legislation for consumer protection.
2. The ACL applies as a Commonwealth law of Australia through the Competition and Consumer Act 2010 (Cth) (CCA Act), and is incorporated into the law of Australia's States and Territories.
3. Section 138B of the CCA Act confers jurisdiction of the ACL on the several courts of the States and Territories. Under s138B(3) this jurisdiction is conferred within the limits of each States’ jurisdiction.
4. The effect of the ACL is that the law to protect consumer rights as applied in the ACT, is the same as that applied in Victoria.
5. In the ACT, the ACL is implemented through the Fair Trading (Australian Consumer Law) Act 1992 (ACT) (Fair Trading Act).
Fair Trading (Australian Consumer Law) Act 1992 (ACT)
6. Section 11(1) of the Fair Trading Act states that the ACL applies to and in relation to:
a. people carrying on business within this jurisdiction; or
b. bodies corporate incorporated or registered under the law of this jurisdiction; or
c. people ordinarily resident in this jurisdiction; or
d. people otherwise connected with this jurisdiction.
7. Furthermore, s11(2) states that subject to s11(1), the ACL extends to conduct, and other acts, matters and things, occurring or existing outside or partly outside this jurisdiction (whether within or outside Australia).
8. As we are ordinarily resident in the ACT, and the ACL extends to conduct and other things occurring outside the ACT, our rights are protected by the Fair Trading Act. As such, an ACT court has jurisdiction to hear and decide this matter.
.
[...]
Conclusion
17. ACAT has jurisdiction to hear and decide our case as:
i. ACL confers powers to the ACT through the Fair Trading Act
ii. The Fair Trading Act allows people ordinarily resident in the ACT to seek a remedy through an ACT court
iii. Both tests for jurisdiction under the MC Act (and as such the ACAT) are met as:
a. a relevant and significant part of the issue happened in the ACT, and
b. the claim was served on the defendant in Melbourne.
18. This is consistent with advice provided to us by the ACCC and ACT Office of Fair Trading prior to lodging our submission in ACAT.

Consideration

As is apparent from the above extracts from the parties submissions, both rely on different statutes as the basis for the tribunal’s jurisdiction (or lack thereof) in this matter. In summary:
(a)the applicant relies upon the ‘application of law’ provision in section 11 of the Fair Trading(Australian Consumer Law) Act 1992 (ACT) (FTA). This provision ‘applies’ the law to people ordinarily resident in the jurisdiction – a test the applicant clearly meets, being that she is a resident of the Territory; and
(b)the respondent relies upon the limitation on the geographical jurisdiction of the tribunal in section 262 of the Magistrates CourtAct 1930 (Magistrates Court Act), as applied by section 22 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). This requires either that the respondent be resident in the jurisdiction or that a “material part of the cause of action in the proceedings arose in the ACT.”
So which statute applies to determine the ACAT’s geographical jurisdiction in this case?

The tribunal’s jurisdiction under the ACAT Act

The tribunal is a statutory body established by the ACAT Act and has only such jurisdiction and powers as are conferred on it by the legislature. In order to bring a matter before the tribunal, a party must point to a statutory provision that confers jurisdiction upon it.
The tribunal’s jurisdiction to hear civil disputes is set out in Part 4 of the ACAT Act. A ‘civil dispute’ is defined in section 16 of the ACAT Act, relevantly, as follows:
16. Meaning of civil dispute and civil dispute application—Act
In this Act:
civil dispute means a dispute in relation to which a civil dispute application may be made.
civil dispute application means an application that consists of 1 or more of the following applications:
(a) a contract application;
...
(i) an application for an order under the Australian Consumer Law (ACT);
This matter involves questions of contract law and Australian consumer law, both of which fall within the above definition of a ‘civil dispute’ for the purposes of the ACAT Act.
Section 22 of the ACAT Act then provides that:
22. Tribunal jurisdiction and powers of Magistrates Court
(1) The tribunal has, in relation to civil dispute applications, the same jurisdiction and powers as the Magistrates Court has under the Magistrates Court Act 1930 part 4.2 (Civil jurisdiction).
(2) However, a rule may prescribe provisions of the Magistrates Court Act 1930, part 4.2 that do not apply in relation to the tribunal.
There are no relevant rules. The relevant provision of the Magistrates Court Act is section 262, as set out in the extract from the respondent’s submissions at paragraph 8 above. I need not repeat that section here.
It is worth noting that the interaction between the Magistrates Court Act and the ACAT Act is not always straightforward. For example, a civil dispute is defined to include a ‘common boundaries determination’ under the Common Boundaries Act 1981 (ACT), which means that in relation to such a dispute, the tribunal has, consistent with section 22(1), the “same jurisdiction and powers as the Magistrates Court.” However, section 26A of the Magistrates Court Act provides that a proceeding under the Common Boundaries Act must not be started in the Magistrates Court, meaning that the Magistrates Court has no jurisdiction or power in relation to common boundaries matters. Clearly, the interpretation that would ‘best serve the purpose of the Act’[1] would be to interpret the provisions such that ACAT has the same powers and jurisdiction as the Magistrates Court would have in relation to a common boundaries dispute, were such a dispute capable of being commenced in the Magistrates Court. However, this inconsistency illustrates that Part 4.2 of the Magistrates Court Act cannot be applied seamlessly to the ACAT’s civil jurisdiction.
[1] For the purposes of section 139 of the Legislation Act 2001
Still, it is evident that it was the intention of the drafters of the ACAT Act that the ACAT would have, in relation to ‘civil disputes’, the same geographical limits to jurisdiction as the Magistrates Court. This is a common sense approach, particularly given that ACAT orders must be enforced, if necessary, through the Magistrates Court.
In relation to the facts of this case, it is evident that the requirements of subsection 262(a) of the Magistrates Court Act (ie the respondent be resident in the Territory) are not met, and therefore, if that Act determines the ACAT’s jurisdiction, the question must turn to whether there is a sufficient ‘material connection’ to establish jurisdiction under subsection 262(b).
First, however, it is necessary to consider whether the FTA operates so as to override or supplement section 262 of the Magistrates Court Act, such that the Tribunal is vested with a jurisdiction that is additional to that provided for under section 262 of the Magistrates Court Act.

The Fair Trading (Australian Consumer Law) Act
Application of Australian Consumer Law

Section 7 of the FTA applies the Australian Consumer Law text (as found in Schedule 2 of the Competition and Consumer Act 2010 (Cth)) as a law of this Territory (referred to as the Australian Consumer Law (ACT) (ACL(ACT)), subject to some limitations and modifications in sections 8, 9 and 10 of the FTA, which I will address shortly.
Section 11 of the FTA provides:
11 Application of Australian Consumer Law
(1) The Australian Consumer Law (ACT) applies to and in relation to—
(a) people carrying on business within this jurisdiction; or
(b) bodies corporate incorporated or registered under the law of this jurisdiction; or
(c) people ordinarily resident in this jurisdiction; or
(d) people otherwise connected with this jurisdiction.
(2) Subject to subsection (1), the Australian Consumer Law (ACT) extends to conduct, and other acts, matters and things, occurring or existing outside or partly outside this jurisdiction (whether within or outside Australia)
This section is stated to ‘apply’ the ACL(ACT), as in force from time to time, as a law of the ACT to the persons listed in that section. One effect of this provision is that a person is ‘protected’ by the ACL(ACT) by reason of being ordinarily present in the Australian Capital Territory. But are these provisions intended to be a conferral of jurisdiction on the relevant ‘court’, or merely a conferral of power where the Court otherwise has jurisdiction?
The difference between power and jurisdiction was discussed by Black CJ in Australian Health Insurance Association Ltd v Esso Australia Pty Ltd [1993] FCA 376; (1993) 116 ALR 253:
‘47. There is a distinction between the conferral of jurisdiction and the grant of a power. Jurisdiction in this context means the authority a court has to decide a matter and power goes to the exercise of that authority. Without authority there can be no valid exercise of power: see St. Justins Properties v Rule Holdings Pty Ltd [1980] FCA 11; (1980) 40 FLR 282 at 284; Parsons v Martin [1984] FCA 408; (1984) 5 FCR 235 at 240-241.
48. ...
49. It is of great importance that when the Parliament intends to confer jurisdiction on a court it should make its intention plain and an express referral to jurisdiction in the familiar terms employed in s. 82ZM has this effect. But desirable though such an unmistakable conferral of jurisdiction is, it cannot be the only way in which Parliament can express its intention that a court should have authority to decide a particular class of matter. The question is one of construction.”
The question, therefore, is: do sections 7 and 11 operate, as contended by the applicant, in such a way as to confer jurisdiction on the ACAT to hear a matter that otherwise falls outside the scope of section 262 of the Magistrates Court Act?
On a plain textual analysis, section 11(1) applies the ACL(ACT) to the people of the Territory and their dealings, and does not say anything about the jurisdiction of any Territory court or tribunal to hear matters under that Act.
Looking to the intention behind the clause, section 11 of the FTA was inserted by means of the Fair Trading (Australian Consumer Law) Amendment Act 2010. There is little in the explanatory memorandum to the preceding Bill that states what the clause is intended to achieve, beyond the obvious ‘application’ of the law to the persons described. There is nothing in the explanatory memoranda that would suggest that clause was intended to give Courts or Tribunals additional geographic jurisdiction.
However, section 11 needs to be read within the context of the Act as a whole.[2] Looking to the other provisions, there are many sections in the ACL(ACT) that set out various conditions and protections, and then empower a ‘court’, as defined, to make orders remedying any breach.
[2] Legislation Act 2001 s 140
The conferral of power on ‘courts’ in the various clauses of the ACL(ACT) is significant because of the way jurisdiction is conferred on Commonwealth Courts by operation of the Commonwealth Acts Interpretation Act 1901 (AIA). Pursuant to section 10 of the FTA, the ACL(ACT) is to be interpreted in accordance with the AIA and not the Legislation Act 2001 (ACT). Relevantly, section 15C of the AIA provides that:
SECT 15C
Jurisdiction of courts
Where a provision of an Act, whether expressly or by implication, authorizes a civil or criminal proceeding to be instituted in a particular court in relation to a matter:
(a) that provision shall be deemed to vest that court with jurisdiction in that matter;
(b) the jurisdiction so vested is not limited by any limits to which any other jurisdiction of the court may be subject; and
(c) in the case of a court of a Territory, that provision shall be construed as providing that the jurisdiction is vested so far only as the Constitution permits.
In other words, under the AIA, a conferral of power on a Commonwealth Court also amounts to a conferral of jurisdiction.
Section 15C potentially has profound implications for the jurisdiction of any ACT court that is a ‘court’ under the ACL(ACT).
But before looking at this, it is necessary to look at the definition of ‘court’ in the ACL(ACT).
Section 9 of the FTA is headed ‘meaning of generic terms in Australian Consumer Law for purposes of this jurisdiction’. It provides that “court includes the ACAT”.
The effect of section 9 of the FTA is that, for the purposes of the ACL(ACT), the word ‘court’ should be read to include the ACAT. However, the ACL(ACT) also includes its own definition of ‘court’. This is found in the dictionary to the ACL as follows:
court, in relation to a matter, means any court having jurisdiction in the matter
The definition of ‘court’ in section 9 of the FTA is clearly intended to in some way modify the definition of ‘court’ in the ACL. But how?
There are three possible ways of reading the definitions together for the purposes of the ACL(ACT):
(a)First, “court, in relation to the matter, means any court (including the ACAT) having jurisdiction in the matter”;
(b)Second: “court, in relation to the matter, means any court having jurisdiction in the matter, and includes the ACAT” – this definition would effectively provide that ACAT is a Court with jurisdiction under the ACL; or
(c)“court includes the ACAT” (i.e. replacement of the definition in the ACL).
Each different interpretation has a profoundly different consequence for the jurisdiction of the Tribunal, and indeed of other Territory Courts:
(a) Interpretation (a) acknowledges that references to ‘court’ may include the ACAT, meaning that the ACAT would have power under the ACL(ACT) only where it otherwise has jurisdiction.
(b)Interpretation (b) would mean that wherever a court has power under the ACL(ACT), the ACAT would also have both power and jurisdiction – this appears to be the argument advanced by the applicant.
(c)Interpretation (c) results in a substitution of the definition in the ACL with the definition in the FTA, with the effect that the ACAT is treated as a court for the purposes of the ACL (ACT), and where a court has a power under the ACL(ACT), the ACAT (and any other court) would also have the jurisdiction to exercise that power.

So which definition is to be preferred?
If either interpretation (b) or (c) is correct, then the ACAT is to be considered either a ‘court’, or the equivalent of a court, for the purposes of the FTA. The consequences are profound - its jurisdiction would potentially be expanded to include any power given to a ‘court’ under the ACL(ACT), including, for example, the power to order the payment of pecuniary penalties under section 224 of the ACL(ACT). Perhaps, one may argue, there would be some limitations. A small number of provisions in the ACL(ACT) vest power to a ‘court of competent jurisdiction’[3] rather than merely a ‘court’, and it may be arguable that the addition of these words require an additional, external jurisdiction be conferred. But these exceptions are few in number, and there could be no doubt that either interpretation (b) or (c) would significantly expand the jurisdiction and power of the ACAT under the FTA beyond what it possesses for other civil disputes.
[3] Sections 85(4), 272 and 279(1)
Adopting interpretation (b) has an even more profound consequence. This interpretation leads to the ACAT being given status as a ‘court of competent jurisdiction’ for all purposes under the ACL(ACT) – which gives the ACAT a jurisdiction in the area of consumer law that is, potentially, in excess of the Magistrates Court.
Such a significant change to the Court structure and hierarchy would hardly be made without consideration. Yet, having reviewed the Explanatory Memoranda and First Reading Speeches for the Fair Trading (Australian Consumer Law) Amendment Bill 2010 I could find nothing to indicate that such a profound change to the relative jurisdictions of the Territory courts and tribunals was at any time within the contemplation of the Assembly. Moreover, having regard to the consequences for the court hierarchy, and the tribunal’s jurisdiction, I do not think that such an interpretation is one that best advances the purpose of the Act. Indeed, in my view, it is simply not reasonable.
On balance, the best interpretation, and the only interpretation that achieves the ‘purposes of the Act’, is one that finds the Tribunal’s jurisdiction under the FTA as consistent with its jurisdiction in relation to civil matters more broadly. That is, the proper interpretation of the definition of ‘court’ in the ACL(ACT) is: “court means any court (including the ACAT) having jurisdiction in the matter”, as per interpretation (a).
Interpretation (a) is also, in my view, the only interpretation that gives effect to the words “having jurisdiction in the matter” in the definition of “court” in the Dictionary to the ACL. If this definition was intended to operate, in conjunction with section 15C of the AIA, as a conferral of power, then it would not be necessary to include the additional words “having jurisdiction in the matter”. Indeed, those additional words would make no sense.
In summary therefore, my view is that the FTA confers power on the ACAT where the ACAT otherwise has the jurisdiction to hear the claim. To determine the ACAT’s jurisdiction, it is necessary to look to other ACT legislation, including the Magistrates Court Act.
For completeness, I observe that it appears to have been the intention of the national scheme that each State and Territory make its own arrangements in relation to the jurisdiction of its Courts and Tribunals to exercise powers conferred under the ACL.
For example, in Victoria, section 217(3) of the Australian Consumer Law and Fair Trading Act 2012 expressly provides that a proceeding may be brought before the Victorian Civil and Administrative Tribunal (VCAT) or in any court of competent jurisdiction, but then sets out in section 223 a number of situations were ‘court’ does not include the VCAT or where VCAT cannot make orders. While this does not go to geographical jurisdiction, it evidences a recognition by the Victorian legislature that a Tribunal may not be the appropriate place for all matters under the ACL.
The Queensland Fair Trading Act 1989 clearly sets out the limitations on the jurisdiction of QCAT, such limitations being consistent with its establishing Act:
(1) A proceeding for the purposes of a provision of the Australian Consumer Law (Queensland) listed in the table to this section must be heard in the tribunal or in a court having jurisdiction for the proceeding, having regard to—
(a) for the tribunal—whether the subject of the proceeding would be a minor civil dispute within the meaning of the QCAT Act; or
(b) for a court—any civil jurisdictional limit, including any monetary limit, applying to the court.
(2) Subsection (1) applies whether or not the listed provision already includes reference to a court of competent jurisdiction.
In other words, power and jurisdiction are conferred separately under the Queensland Act.
The Fair Trading Act 1987 (NSW) has, in part 6A , a series of provisions that deal exclusively with the jurisdiction the NSW Civil and Administrative Tribunal (NCAT), and indeed includes provisions that deal expressly with the issue of geographical jurisdiction:
79K Supply or agreement made, or supply intended to be made, in New South Wales
(1) The Tribunal has jurisdiction to hear and determine a consumer claim only if:
(a) the goods or services to which the claim relates were supplied in New South Wales, or
(b) a contract or other agreement to which the claim relates contemplated that the goods or services would be supplied in New South Wales (whether or not they were so supplied), or
(c) a contract or other agreement to which the claim relates was made in New South Wales (whether or not the goods or services were supplied in New South Wales).
(2) The Tribunal has such jurisdiction whether or not:
(a) a contract or other agreement to which the claim relates confers jurisdiction on any other court or tribunal (whether in New South Wales or elsewhere), or
(b) the rules of private international law require a law other than the law of New South Wales to be applied to the hearing or determination of the claim.
These provisions in the NSW are not substantially different to section 262 of the Magistrates Court Act, albeit their application to consumer matters is made clear by placement within the NSW Fair Trading Act.
The inclusion of provisions such as the above in equivalent legislation in other jurisdictions further confirms that it was intended that States and Territories would continue to determine the jurisdiction that each of their respective courts and tribunals would have to exercise the powers provided for under the Australian Consumer Law framework.

Are the requirements of section 262 met in this case?

Having determined that any application brought to the Tribunal under the FTA must meet the requirements of section 262 of the Magistrates Court Act, the question must now turn to whether those requirements are met in this case.
There has been little exploration of the effect of section 262 in either the ACAT or, apparently, the Magistrates Court. There are only two reported cases[4], both by Registrar Morris (as he then was) of this tribunal. There is no reported consideration of the meaning of the section by the Magistrates Court or the Supreme Court.
[4] Aramayo And Ors & Vardy And Ors [2011] ACAT 69
The observations of Registrar Morris in one of those cases, Scentine Pty Ltd (t’as AKZ Vehicle Engineering) & Fabary and Hathaway [2010] ACAT 16 are apposite here:
7.The jurisdiction of ACAT is governed by section 22 of the ACT Civil and Administrative Tribunal Act 2008, which in turn refers to Part 4.2 of the Magistrates Court Act 1930.
8. Section 262 of the Magistrates Court Act 1930 gives ACAT (by extension) the power to decide matters where the defendant is not in the ACT, if a material part of the cause of action arose in the ACT.
9.Past practice in the (now replaced) Small Claims Court tended towards a very liberal view of this. In practice, the court tended to assume jurisdiction over cases that had any connection with the ACT.
10.However, I am not aware that this was ever questioned. Had it been, it is doubtful that that laxity would have continued.
In Scentine, the applicant, a resident of Canberra, was hired to inspect and report on a vehicle in NSW. The only connection to the Territory was that the offer was made by the applicant in the Territory. The contract was perfected in NSW and the applicant did most of the work there. Ultimately, Registrar Morris declined to exercise jurisdiction in that case on the basis that the tribunal was a forum non conveniens – i.e. he determined that the convenience of the parties and justice would be better achieved by resolving the dispute in another forum.[5]
[5] Voth v Manildra Flour Mills (1990) 171 CLR 538
Whether the ACT is an inconvenient forum, when compared to Victoria, has not been raised in this case, and I need not consider it. What I instead must consider is whether, on the facts of this care, there is a ‘material part of the cause of action’ that arises in the ACT.
There is no dispute that the majority of the key events in this proceeding took place in Victoria. In particular:
(a)Any representations about the furniture, the subject of the contract, were made by the respondent to the applicant while both were present in Victoria.
(b)The contract was entered into when both parties were physically located in Victoria (the respondent’s head office being in Hawthorn, Victoria).
(c)At that time, both parties were resident in Victoria.
(d)The goods were initially supplied in Victoria.
(e)The bed-head and centre rails were replaced while the applicant was still resident in Victoria.
The applicant does not deny these facts, but suggests that jurisdiction can accrue by reason of events that have unfolded in the Territory:
13. A material part of the cause of action in our case occurred in the ACT as the most recent issues with the bedroom suite (warping and splitting of items in the bedroom suite) became apparent after we relocated to the ACT.
i. These issues appear to be similar in nature to issues with previous items of furniture replaced by the Manufacturer and Forty Winks Hawthorn while we were in Melbourne.
ii. From discussions with Forty Winks Hawthorn staff we understand these issues are occurring (and may continue to occur) as the wood used to make the bedroom suite was not adequately dried which causes it to warp over time.
iii. This advice is consistent with our observations of the issues with the bedroom suite.
iv. As the warping occurs over time, the most recent issues did not present themselves until we had relocated to the ACT.
v. Consistent with the suite continuing to show issues over time, we have had several other items in the bedroom suite exhibit similar issues since lodging our submission in ACAT.
14. Additionally:
i. had the bedroom suite not presented with defects, we would not require a remedy under ACL,
ii. had these defects been remedied following the replacement of items in Melbourne and prior to us moving to the ACT, we would not require a remedy under ACL, and
iii. had these defects presented themselves for a second time (i.e. in the replaced items) in Melbourne, we would not have relocated the bedroom suite to the ACT.
15. As the defects with the bedroom suite were not remedied, and as the most recent defects became apparent in the ACT, we are within our rights to seek a remedy through ACAT.
16. Consistent with s262(b)(i) of the MC Act, the ACAT has jurisdiction to hear and decide matters even though part of the action (i.e. the purchase of the bedroom suite) arose outside the ACT.
The applicant’s characterisation of section 262(b)(i) in paragraph 16 of her submissions is not quite correct - the ACAT may have jurisdiction to hear a matter if part of the action arose outside the ACT, but it must still be the case that a material part of the claim arises in the ACT.
There has been no reported judicial consideration of the meaning of the term ‘material’ in the context of section 262 of the Magistrates Court Act, and nor is the term defined in the Magistrates Court Act. The term is not uncommonly used in legislation, in a variety of contexts, but it is not so commonly used that one could say it has an established legal meaning.
Turning to the ‘ordinary’ meaning of the word, the Macquarie Dictionary provides meanings, relevantly, as follows:
noun 1. the substance or substances of which a thing is made or composed.
2. any constituent element of a thing.
3. ..
9. relating to, concerned with, or involving matter: material force.
10....
13. of substantial import or much consequence.
14. Law (of evidence, etc.) likely to influence the determination of a cause.
[Middle English, from Late Latin māteriālis, from māteria matter]
Drawing from this definition, it seems that to be a ‘material’ part of a cause of action, the relevant part need not be a major part, but it must relate to the claim, or have some consequence for it. Something of consequence for the claim must have happened in the ACT.
One thing that has happened is that the applicant has moved to the ACT. However, the clear implication of section 262(a) and (b), when read together, is that it is not sufficient that the applicant simply live or move to in the jurisdiction – were that the case, then section 262(a) would make reference to the residence of the applicant as well as the respondent. Clearly, there must be something more.
What ‘more’ is required must depend upon the cause of action.
As best the Tribunal can determine, on the basis of the applicant’s submissions, this matter involves questions of breach of contract, breach of the implied consumer guarantees in the ACL, and perhaps misrepresentation.
The breach of contract action would require an examination of where the contract was formed, where it was performed, and where it was breached. On any view of the facts, the answer to each of these questions is ‘Victoria’. There is no relevant material connection to the ACT for the purposes of a breach of contract action.
Reliance on the implied consumer guarantee as to merchantable quality in the ACL will require that the applicant establish that, at the time they were sold, the goods were not of merchantable quality. The goods were sold and supplied in Victoria, to Victorian residents, by a supplier whose head office is in Victoria. Again, the material elements of the action appear to have occurred in Victoria.
All representations were made in Victoria.
As I understand the applicant’s case, it is that the some of the alleged deficiencies with the goods became apparent only after the applicant had moved to the ACT. While the applicant is quite correct that she could not bring the action if the defects had not come to light, this does not, in my view, amount to a material part of the causes of action relied upon by the applicant.
In the circumstances, no sufficiently material part of the cause of action has arisen in the Australian Capital Territory. Accordingly, the Tribunal is not vested with the jurisdiction to hear this matter.

Conclusion

The matter is dismissed for want of jurisdiction.

………………………………..
Senior Member H Robinson