Pickles v Consumer Claims Tribunal
[1999] NSWSC 104
•23 February 1999
CITATION: Pickles v Consumer Claims Tribunal [1999] NSWSC 104 CURRENT JURISDICTION: Administrative Law Division FILE NUMBER(S): 30015/98 HEARING DATE(S): 18 February 1999 JUDGMENT DATE:
23 February 1999PARTIES :
Pickles Auctions Pty Limited
(Plaintiff)v
The Registrar Consumer Claims Tribunal
(First Defendant)Jim Markakis
Minister For Fair Trading
(Second Defendant)
(Intervener)JUDGMENT OF: Master Malpass
LOWER COURT JURISDICTION: Consumer Claims Tribunal LOWER COURT FILE NUMBER(S) : TSY97/881 LOWER COURT JUDICIAL OFFICER: G. Vardas (Referee)
COUNSEL : P - Mr R W White SC, Mr J E Armfield
I - Mr J Basten QC, Ms M GilmourSOLICITORS: P - Glasson, Gemmell & McGill
I - I V Knight, Crown SolicitorCATCHWORDS: Consumer claim jurisdiction ACTS CITED: Consumer Claims Tribunals Act
1987
s. 3DECISION: Summons dismissed
- 11 -THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISIONMASTER MALPASS
23 February 1999
30015/98 - Pickles Auctions Pty Limited v The Registrar ConsumerClaims Tribunal & Anor
JUDGMENT
1 At all material times, the plaintiff has carried on the business of, inter alia, an auctioneer. On Friday, 11 October 1996, it conducted a boat auction at Birkenhead Point Marina. One of the lots listed for auction was a 25ft Bertram GRP Flybridge Cruiser known as “Scott Free”. It was listed under instructions from a finance company (Esanda Limited). There is evidence that Terms and Conditions of Auction and/or Sale were on display. These identified the plaintiff as agent of the Vendor. A Buyer’s Identification form was signed by the second defendant. It also identified the plaintiff as an auctioneer acting as agent for the Vendor. The second defendant was the successful bidder for the boat. Subsequently, he paid the purchase price of $16,250 and took delivery of the boat.
2 The second defendant contends that the boat turned out to be not in a seaworthy condition, that it required extensive repairs and that it was of less value than what was being represented as the subject of the sale.
3 He purported to make a consumer claim pursuant to section 13 of the Consumer Claims Tribunals Act, 1987 (the Act) against the plaintiff seeking a money order for $19,527.75. He used the prescribed Claim Form. The Claim Form itself makes mention of an implied warranty that goods are of merchantable quality and are fit for the purpose for which they are sold. Annexed to that Form is a document headed “Details of the Claim”. It refers to an advertisement and alleges that certain representations were made (see paragraphs 2-4 and 6). It also contains, inter alia, the following:-
“16. Pickles Auctions engaged in misleading and deceptive advertising and conduct. Through such conduct Pickles Auctions induced me to purchase a broken down, not seaworthy vessel.17. Pickles Auctions also made a fraudulent and/or in the alternative a negligent misrepresentation over the telephone in regards to the age of the vessel.”
4 The “Details of the Claim” contain a claim for a total sum of $19,527.75 (which is made up of various expenses and a sum said to represent the difference in value by reason of the misrepresentation as to the age of the vessel).
5 The claim was given a hearing date before the Consumer Claims Tribunal. On the day fixed for hearing, the plaintiff made an objection to jurisdiction. The hearing was adjourned to enable the parties to make submissions on the question of jurisdiction. A written submission dated 22 August 1997 was made by the second defendant. It contended that a consumer claim had been made which was in accordance with section 3 of the Act. It was said that the second defendant was a consumer and that the plaintiff was a supplier who had supplied goods to him. The plaintiff made a written submission dated 26 August 1997. It relied on, inter alia, the judgment of Studdert J in Pickles v Consumer Claims Tribunal (030067/93). The thrust of the submission was that this was an authority which established that the plaintiff was an agent and not a supplier of goods. It appears that the written submissions were supplemented by oral submissions made at the hearing. The decision of the Tribunal was made by Referee, G Vardas. The Reserved Decision was reduced to writing and made on 12 February 1998. It reveals that certain evidence was taken for the purpose of ruling on the question of jurisdiction. The Reserved Decision also contains, inter alia, the following:-
“In the present case, the claimant has asserted that he was misled by the auctioneer as to the condition and seaworthiness of the boat. Such conduct on the part of Pickles is asserted to be misleading and deceptive and, if the claimant’s version of the facts were to be accepted at a hearing on the merits, then that allegation of misleading and deceptive conduct is sufficient to attract the jurisdiction of the Tribunal provided that there was, at the very least, a supply of goods or services.
In my view, the claimant’s case is not based on any alleged breach of contract and, to that extent, the decision of Studdert J in the Pickles case can be distinguished. On the facts before me, it is clear that the respondent was in the business of supplying goods or services. The claimant’s claim form also makes it clear on its face the basis of his claim, namely, that the respondent had engaged in misleading and deceptive conduct.
In those circumstances, I hold that the Tribunal does have jurisdiction to entertain this claim.”
6 The plaintiff filed a Summons in this Court on 24 February 1998. The plaintiff seeks to challenge that decision (being a ruling under section 26 on the question of jurisdiction) pursuant to section 12(2) of the Act.
7 Section 10 of the Act confers jurisdiction upon the Tribunal to hear and determine any consumer claim referred to it in accordance with the Act. Section 3 provides definitions for, inter alia, “business”, “consumer”, “consumer claim”, “goods”, “services”, “supplier” and “supply”.
8 The definition of “consumer” includes a natural person to whom or to which a supplier has supplied or agreed to supply goods or services, whether under a contract or not, or with whom or which a supplier has entered into a contract that is collateral to a contract for the supply of goods or services.
9 “Consumer claim” is defined to mean:-
(a) a claim by a consumer for the payment of a specified sum of money,
(b) a claim by a consumer for the supply of specified services,
(c) a claim by a consumer for relief from payment of a specified sum of money,
(d) a claim by a consumer for the delivery, return or replacement of specified goods or goods of a specified description, or
(e) a claim by a consumer for a combination of 2 or more of the remedies referred to in paragraphs (a)-(d),
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 or services.
10 “Supplier” means a person who, in the course of carrying on, or purporting to carry on, a business, supplies goods or services.
11 The hearing took place on 18 February 1999. The Minister for Fair Trading having intervened appeared in opposition to the Summons. The first and second defendant did not participate in the hearing. The plaintiff relied on material contained in an affidavit sworn by Mr Jacklin and in an affidavit sworn by Mr Rusterholz. Mr Jacklin gave brief supplementary oral evidence. The intervener relied on material contained in an affidavit sworn by the second defendant. The second defendant was briefly cross-examined.
12 Counsel provided written outlines of submissions. The written material was supplemented by oral submissions. During the course of submissions, reference was made to various authorities (including Thomson v Consumer Claims Tribunal (1981) 1 NSWLR 68, APA Life Insurance Ltd v Charles & Anor (1981) 2 NSWLR 352, State Rail Authority of NSW v Consumer Claims Tribunal & Ors (1988) 14 NSWLR 473, Fairey Australasia Pty Ltd v Joyce & Anor (1981) 2 NSWLR 314, White & Ors v Hall & Ors (1983) ASC 55-247, Probiz Business Software Pty Ltd & Anor v Magee & Ors (James J, 27 February 1998), Archcom Pty Ltd v Consumer Claims Tribunal & Ors (Simpson J, 29 September 1995), W D & H O Wills (Australia) Limited & Anor v The Consumer Claims Tribunal of NSW & Anor (Court of Appeal, 23 July 1998), Pickles Auctions Pty Limited v Registrar, Consumer Claims Tribunal & Ors (Studdert J, 9 September 1994), Gurley & Anor v Oosterman (1985) ASC 55-436 and Sandford v Marjen Building Contractors Pty Limited & Ors (Grove J, 3 April 1992)). Some of these authorities are concerned with the repealed predecessor to the Act (Consumer Claims Tribunals Act, 1974).
13 Counsel did not embark on an exercise of detailed examination of the reasoning process given by the Referee. Largely, the question of jurisdiction was approached afresh and the submissions made appeared to represent a significant departure from what was put to the Referee.
14 The plaintiff contends that it was an auctioneer which sold the boat as a disclosed agent. This contention did not appear to be in dispute. There was no dispute that a sale by auction gives rise to three contracts. Firstly, there is a contract between the owner of the goods and the highest bidder (this being a simple contract of sale to which the auctioneer is no party). Secondly, there is a contract between the owner of the goods and the auctioneer. Thirdly, there is a contract between the auctioneer and the highest bidder (see, inter alia, Chelmsford Auctions v Poole (1973) 1 QB 542). There appears to be no dispute that the plaintiff was a “supplier” within the meaning of the Act or that there was a supply of goods or services by a supplier to the consumer.
15 The correct characterisation of the claim made by the second defendant is not entirely clear. This did not seem to be regarded as a matter of great significance and there may be a duty owed by the Referee to correctly formulate the issues in dispute (APA, p 359). The contents of the Claim Form itself might suggest that it was founded on contract. This was not the view taken by the Referee. It may be that the contents themselves merely represent the effort by the second defendant to comply with the questions raised in the printed Form. The “Details of the Claim” suggest that the case is otherwise founded (such as in tort or for breach of statutory prohibition). In submissions, it was approached on this basis.
16 The plaintiff accepts that it bears the onus of satisfying the Court of entitlement to relief. It is also accepted that where it is being said that lack of legal liability goes to the question of jurisdiction the plaintiff needs to show that the claim throws up no arguable case of legal liability on its part.
17 I shall now turn to the submissions made on behalf of the plaintiff. The submissions characterised the claim as one “for the payment of a specified sum of money” (the sum of $19,527.75). The written submissions contain, inter alia, the following:-
“4. The issue is whether the claim for the payment of this specified sum “arises from a supply of goods or services by a supplier to the consumer”.5. Just as the Tribunal is bound to apply the general law, so the question of whether the claim for that specified sum arises from a supply of goods or services by a supplier, is to be determined having regard to the general law.
6. The sum specified would be recoverable as a matter of general law (assuming the facts in favour of the claimant) as damages for breach of warranty, from the vendor of goods. The sum claimed is that which, so the claimant contends, would put him in the same position in which he would have been had the vessel been seaworthy and built in the 1980s.
7. The sum specified is not a claim to compensate the claimant for loss suffered by conduct alleged to be misleading or deceptive or from representations made negligently or fraudulently. In such a case the inquiry is what damage flowed from (in the sense of being caused by) the misrepresentation or misleading or deceptive conduct. Damages will be the sum representing the loss suffered by he claimant because he has altered his position in reliance upon the misrepresentation. The comparison is between the position in which the party was as a result of acting in reliance on the representation, and what his position would have been but for the misrepresentation. (Marks v GIO Australia Holdings Limited (1998) 73 ALJR 12, paras. 41-42, 47-51 (per McHugh, Hain and Callinan JJ; Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1 at 12-13; Wardley Australia Limited v Western Australia (1992) 175 CLR 514 at 526-7; Kizbeau Pty Limited v WG & B Pty Limited (1995) 184 CLR 281 at 291).
8. The present claim is not for such loss. The present claim does not bring to any account the value of the vessel which was purchased. It may be that the vessel was worth all that was paid for it, or more, notwithstanding it was not in the condition or of the age which the claimant asserts he was led to expect. It may be that after the expenditure of $14,527.75 it would be still worth to the claimant more than he has paid. If that were so, the claimant would have suffered no loss. But the claim does not go into those matters because it does not seek a sum for loss caused by the alleged misrepresentations. It claims a specified sum to put the claimant in the position in which he would have been if the vessel was warranted according to his claim.
9. Such a claim against the plaintiff does not arise from a supply of goods or services by the plaintiff or the vendor. The plaintiff was at all times acting only as auctioneer; not as a principal but as a disclosed agent for a vendor. (cf. Pickles Auctions Pty Limited v Registrar, Consumer Claims Tribunal, Studdert J, 9 September 1994, pp.13-14). The auctioneer’s obligation to a purchaser (when acting as a disclosed agent and in the absence of special conditions none of which exist or are claimed to exist), is only to deliver the goods against payment of the price. He is not a party to the contract of sale. (Benton v Campbell Parker & Co [1925] 2 KB 410 at 415-6; Chelmsford Auctions v Poole [1973] 1 QB 542 at 548-9; Elder Smith Goldsborough Mort Limited v McBride [1976] 2 NSWLR 631 at 646-7). As the Tribunal must act in accordance with the general law, it could not entertain a claim for a sum of money for breach of warranty against an auctioneer who was not a party (and not claimed to be a party) to the contract for sale of the goods in question. (Pickles supra at 14.2; White v Hall (1983) ASC 55-247 at 56,252, col. 1.5).
10. What must appear from the claim is that the respondent (plaintiff) “might have” a liability in the sum specified to the claimant. The requirement that it appear from the claim that the respondent might have a liability to the claimant is established by at least Fairey Australasia Pty Ltd v Joyce (1981) 2 NSWLR 314 at 321.E; White v Hall supra; Pickles supra at p.14.5; Probiz Business Software Pty Ltd v Magee, James J, 27 February 1998, unreported, pp.10.6, 11.3. That it appears from the claim that there might be a liability in the specified sum follows from the definition of “consumer claim”.
11. It is not the supply of the plaintiff’s services as auctioneer, nor the supply of the vessel by the vendor under the contract of sale, (assuming the latter basis of jurisdiction were open on the claim, see Pickles supra at p.10.2), which could give rise to a liability of the auctioneer in the specified sum. The claim does not “arise from” the supply of goods or services unless it has a reasonable relationship to and exists in consequence of that supply. (Fairey Australasia Pty Limited v Joyce [1981] 2 NSWLR 314 at 322.B; approved in R v Registrar and Referees of Small Claims Tribunal and Roberts; ex p. Consolidated Rutile Ltd [1986] 2 Qd R 282 at 284.15, 294.15). The claimed liability in the specified sum cannot arise in consequence of that supply.”
18 It may be that the judicial dicta does throw up some conflict. Be that as it may, there is abundant authority to support the view that the determination of the question of jurisdiction does not involve an investigation of the merits of the claim. In my view, the question to be decided in determining jurisdiction is whether or not the Tribunal has before it a “consumer claim” referred in accordance with the Act. I do not accept the proposition that it must appear from the claim that the respondent (plaintiff) might have a liability.
19 The first ingredient of a “consumer claim” is whether or not the claimant makes one of the claims contemplated by (a) to (e) of the definition. For present purposes, the relevant second ingredient is that it must be a claim that arises from a supply of goods or services by a supplier to the consumer.
20 There is authority which suggests that the first ingredient may be satisfied if a sum of money is specified in the claim which falls within the jurisdictional level of the Tribunal. The Court of Appeal has taken the view that the Act does not expressly require that a consumer claim be for liquidated damages and not unliquidated damages (Wills).
21 It may be that the claimant has claimed a measure of damage that is inappropriate to his claim. I do not consider that a selection of the wrong measure of damages goes to the question of jurisdiction. The Tribunal was established to enable lay people to determine differences without the involvement of legal representation (section 21 makes provision for presentation of a case by the party). It was said in Gurley (at 56,281) that the technical question of relegating a claim to its proper legal category is out of place in construing the legal limits of the jurisdiction of the Tribunal.
22 I should add that the Act provides ample power for the amendment of the claim (section 19). It is not disputed that an amendment of the prayer for relief would cure any problem brought about by the selection of the wrong measure of damages. I bear in mind that this particular argument was not apparently ventilated before the Referee and that the second defendant took no part in the hearing of these proceedings. Fairness would dictate that he be given the opportunity to make any necessary amendment to his claim. Also, I bear in mind that the Act gives the Tribunal powers to make certain orders as it considers appropriate (section 30).
23 It is common ground that the Tribunal must apply the general law. It can only make an order against a party where there is a legal liability owed by that party to the consumer. But the determination of the merits of the claim (be it hopeless, weak or otherwise) is a matter to be dealt with by the Tribunal. It is for the Tribunal to determine whether or not an order should be made.
24 The expression “arises from a supply of goods or services by a supplier to the consumer” is one of width. In the circumstances of this case, I am not satisfied that the plaintiff’s claim does not arise from a supply of goods or services by a supplier to the consumer.
25 In this case, the alleged representations are said to have been made in the course of the plaintiff’s purported performance of its role as agent for the Vendor in respect of the sale of the boat. It seems to me that a claim for a specified sum may be said to arise from the supply of goods or services involved in this claim.
26 In the circumstances of this case, I am not satisfied that the ruling of the Tribunal was erroneous and that it does not have jurisdiction to entertain the claim. Accordingly, the plaintiff’s application fails.
27 I dismiss the Summons. The plaintiff is to pay the costs of the Summons.
0
5
0