Moss v NRMA Insurance Ltd

[2003] FCA 1378

FEDERAL COURT OF AUSTRALIA

Moss  v NRMA Insurance Ltd [2003] FCA 1378

TRADE PRACTICES – unconscionable conduct – application for summary dismissal – whether arguable case made out – where applicant perceived respondent’s action as a threat to agree to settle insurance claim – unrepresented applicant – circumstances where court will make a referral requesting pro bono legal assistant.

Trade Practices Act 1974 s 52, s 82
Social Security (Administration) Act 1999 s 204
Federal Court Rules, Order 80

WILLIAM WAYNE MOSS  V NRMA INSURANCE LIMITED

N 663 of 2003

WILLIAM WAYNE MOSS  V NRMA INSURANCE LIMITED

N 664 of 2003

BEAUMONT ACJ
20 NOVEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 663 OF 2003

BETWEEN:	WILLIAM WAYNE MOSS APPLICANT
AND:	NRMA INSURANCE LIMITED RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 664 OF 2003

BETWEEN:	WILLIAM WAYNE MOSS APPLICANT
AND:	NRMA INSURANCE LIMITED RESPONDENT

JUDGE:	BEAUMONT ACJ
DATE OF ORDER:	20 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicant be referred to the Registrar for referral to a legal practitioner on the pro bono panel for legal assistance in drafting an appropriate statement of claim in one or other of these matters. 

2.The proceedings in both matters be stayed until further order, that is to say, until an appropriate statement of claim in, at least, one of these matters has been prepared by the practitioner on the pro bono panel and filed. 

3.The costs of today’s proceedings be reserved.

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 663 OF 2003

BETWEEN:	WILLIAM WAYNE MOSS APPLICANT
AND:	NRMA INSURANCE LIMITED RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 664 OF 2003

BETWEEN:	WILLIAM WAYNE MOSS APPLICANT
AND:	NRMA INSURANCE LIMITED RESPONDENT

JUDGE:	BEAUMONT ACJ
DATE:	20 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT ACJ:

1. Before the Court, in two similar matters, are notices of motion either for the dismissal of the proceedings or their permanent stay pursuant to Order 20 rule 2 of the Federal Court Rules.  The applicant appears in person, although he has previously sought, but been refused, an order for the provision of legal assistance pursuant to Order 80 of the Federal Court Rules.  As a result, the applicant’s application and the content of his affidavit sworn on 2 May 2003 are necessarily framed in layman’s language. 

2. The documentary background to the matter is fully described in the affidavit of the respondent’s solicitor, Scott Graham, sworn on 18 July 2003 and I need not, for present purposes, refer to this save to say that it provides description of the correspondence that passed between the relevant parties and is an accurate description of that correspondence for present purposes.  There are also references in that affidavit to file notes made, in particular, by Mr Sean Burns, an officer of the respondent.  No affidavit of Mr Burns has been put into evidence in these proceedings. 

3. The application made by the applicant and his supporting affidavit in each case appear to proceed upon the assumption that he has a claim of misleading and deceptive conduct under the provisions of s 52 of the Trade Practices Act 1975 (‘the Act’).  It is true that, in a letter written by the respondent dated 11 May 2001, the respondent, writing after the settlement of the applicant’s claim for the sum of $10,000, said the following:

   ‘I have noted your concern that we contacted Centrelink seeking information regarding any amount to be repaid to them, indicating incorrectly that your claim had been settled.

   Clearly, we should have not told Centrelink that the request was as a result of having settled your claim, but should have made it clear that we were seeking the information in anticipation of reaching agreement to settle.

   I would like to confirm to you that NRMA apologises for any distress that our actions have caused you.’ 

4. In my opinion, it is beyond argument that any claim could be made in respect of the respondent’s conduct under the provisions of s 52 of the Act for the reason that, even if some misleading or deceptive conduct could have been pointed to, there is no evidence that the applicant suffered loss or damage by such conduct within the meaning of s 82(1) of the Act. I should mention also that the applicant has, in addition, sought to rely upon s 204 of the Social Security (Administration) Act 1999. By that provision, the unauthorised use of protected information is made an offence but, in my view, it is not arguable that such a provision could have any civil application in the present proceedings. However, it does seem to me that it is arguable that the respondent’s conduct is unconscionable conduct within the meaning of s 51AA(1) of the Act. As mentioned in argument, it seems that there is a basis for the advancement of this submission on behalf of the applicant arising from the provision of part of par 1 of his affidavit dated 2 May 2003 and filed in matter number N 663 of 2003. In that affidavit the applicant says:

   ‘I claim that NRMA on or around 3.15pm of the 16/6/2000 breached a warning given to them by the Department of Social Security in two letters dated the 5&15 of June 2000, being garnishee letters under the section 1223 of the Social Security Act of 1999.

   The warning was covered by section 202&204 of the Social Security (Administration) Act 1999, that warning was as follows,

   “Please note that it is unlawful for you to tell anyone else that Mr Moss has a debt to the Commonwealth, or for you to use this information (except to comply with this request)[”].

   By telling my solicitor Mr. Ian Scott Hall-Johnson at the above time and date on the phone, they were going to tell the court at a later date if this case went to court, I was told of this debt by Mr Sean Burns the CTP manager of the NRMA Insurance Ltd on the 5/6/2000 in the afternoon when I rang to see if they would pay me the $150,000.00.

   That’s when I found out that they knew of my debt to Centrelink and that’s when Mr Sean Burns asked me how I got the debt and I told him that it was none of his business, that’s when he told me he would find out in court this is where I claim the first breach as to threat of using the information given in the garnishee letter of the 5/6/2000 against me, than on the 16/6/2000 Mr Sean Burns told Mr Scott Hall-Johnson they wouldn’t raise the amount of settlement from $10,000.00 and would use this information in court.  They breached the Centrelink warning twice.  I was acting for myself so when Mr Burns told me what they knew.  I saw a solicitor Ms Jennifer Frazer at Penrith who told me, that if this went to court they would bring it up, the Social Security debt and discredit me in court as a bad person.’

5. In par 1 of his affidavit sworn in matter number N 664 of 2003 different language is used by the applicant but, in substance at least, some parts of his allegations made in the other proceedings are picked up. 

6. It is submitted on behalf of the applicant that I should infer from his affidavit evidence that Mr Burns was proposing to approach Centrelink and ascertain from it the nature of a fraud apparently committed by the applicant against Centrelink and use that material as a method of negotiating a preferable form of settlement, preferable that is, of course, from the respondent’s point of view.  In my view, it is arguable that this affidavit evidence could be interpreted to this effect.   Moreover, as I have already mentioned, no evidence was given by Mr Burns or by any other executive of the respondent.  Clearly the solicitor’s affidavit could not address this particular issue noting, as I do, that the applicant’s claim is that Mr Burns made his position clear in a conversation.  I am of the opinion, therefore, that, in the one respect that I have mentioned, the applicant has established an arguable case.  However, I am concerned with the circumstance that the respondent has not had the benefit of a proper pleading, a point, I think, validly taken by counsel for the respondent. 

7. As I have mentioned, a previous application was made on behalf of the applicant for a reference for assistance under Order 80, and that reference was refused.  In the events that have now happened, an order should be made under the provisions of rule 4(1) of Order 80.

8. Accordingly, I order that the applicant be referred to the Registrar for referral to a legal practitioner on the pro bono panel for legal assistance in drafting an appropriate statement of claim in one or other of these matters.  I would make it clear that, as it presently appears, I see no need for there to be two sets of proceedings raising the same issue but that, of course, will be a matter for the applicant and the legal practitioner on the pro bono panel to determine. 

9. As has been mentioned, the respondent seeks an order for the permanent stay of the proceedings, or for its dismissal.  It seems to me that the administration of justice will best be served here if I order that the proceedings in both matters be stayed until further order, that is to say, until an appropriate statement of claim in, at least, one of these matters has been prepared by the practitioner on the pro bono panel and filed. 

10. In the particular circumstances of the case I will order that the costs of today’s proceedings be reserved.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Beaumont.

Associate:

Dated:            2  December 2003

Solicitor for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr D S Weinberger
Solicitor for the Respondent:	Moray & Agnew
Date of Hearing:	20 November 2003
Date of Judgment:	20 November 2003