Poyton v Retailworld Resourcing Australia Limited Partnership

[2016] FCCA 1297

FEDERAL CIRCUIT COURT OF AUSTRALIA

POYTON v RETAILWORLD RESOURCING AUSTRALIA LIMITED PARTNERSHIP [2016] FCCA 1297

Catchwords:
CONSUMER LAW – Interlocutory relief –application for summary dismissal pursuant to r.13.10(a) of Federal Circuit Court Rules 2001 – no prospects of success – application dismissed.

Legislation:

Competition and Consumer Act 2010 (Cth)
Privacy Act 1988(Cth)
Spam Act 2003(Cth)
Federal Circuit Court Rules 2001 (Cth) r.13.10

Applicant: CURLIS POYTON

Respondent: RETAILWORLD RESOURCING AUSTRALIA LIMITED PARTNERSHIP

File Number: BRG 73 of 2016

Judgment of: Judge Vasta

Hearing date: 18 April 2016

Date of Last Submission: 18 April 2016

Delivered at: Brisbane

Delivered on: 18 April 2016

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the Respondent: Mr C.M. Hall

Solicitors for the Respondent: BROADLEY REES HOGAN LAWYERS

ORDERS

1. That pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001, the Application in a Case filed 29 March 2016 be dismissed and the Application filed 27 January 2016 be summarily dismissed.

2. That The Applicant pay the Respondent’s costs of and incidental to these proceedings:

   (a)From 27 January 2016 to 7 March 2016 on a standard basis; and

   (b)From 8 March 2016 to today on an indemnity basis.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 73 of 2016

CURTIS POYTON

Applicant

And

RETAILWORD RESOURCING AUSTRALIA LIMITED PARTNERSHIP

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application to this Court filed on 27 January this year, the applicant, Curtis Poyton, seeks:

   “1. An order declaring that the Respondent has contravened the Competition and Consumer Act 2010 (Cth), the Privacy Act 1988(Cth) and the Spam Act 2003(Cth).

   2. An order requiring the Respondent to pay to the Applicant damages by way of compensation for the non-economic damage suffered because of the conduct of the Respondent.

   3. An order requiring the Respondents to provide the Applicant an apology.

   4. An order that the Respondent pay the Applicant’s costs in the proceeding.

   5. Any other order that the Court considers appropriate.”

2. The application proceeded because of an email which was sent by a Melanie Young on Wednesday, 18 November 2015 at 10.10 am to the applicant with the subject “Updating Details!” with an exclamation point.  The email read:

   “Hi Curtis,

   I hope you are well, I came across your details on our database and was just touching base to update our files. 

   We have several opportunities available currently across full-time, management and multi-site, so should you know of anyone that is looking that might be suitable please feel free to put me in contact with them. 

   We have a fantastic referral program so should the referred person be successful in gaining employment through us we offer a $200 cash reward. 

   Looking forward to hearing from you. 

   Regards,

   Melanie Young.”

3. It was sent from Retailworld Resourcing.  The Applicant said here today that he did take offense at such an email and that he regarded it as a breach of his privacy.  It does turn out, even though it was not disclosed in the Applicant’s material, that he had made quite a number of applications to the Retailworld Queensland Group looking for employment.  That is the reason that the company, as it would seem, had the Applicant’s email address and contact details.  He says that he did not think that this was a proper use of the details that they had for him.

4. The Respondent company has come here on an interlocutory application seeking summary dismissal pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) on the basis the Applicant has no reasonable prospect of successfully prosecuting the proceeding, or alternatively that the application is an abuse of process of the Court, and asking that the Applicant pay costs, and any other order that I see fit. It seems to me that the first problem that the Applicant finds is that he has not sued the correct entity. The entity Retailworld Resourcing Australia Limited Partnership is a franchisor.

5. The Gunther Consulting Group Proprietary Limited is the franchisee.  The Gunther Group has set up the Retailworld Resourcing Australia Queensland Group.  That is the business name under which they trade.  The Applicant made a complaint.  It would seem that complaint went to the franchisor.  The franchisor handed on the complaint to the franchisee.  Mr Gunther, head of the franchisee, then replied to the Applicant using the letterhead of the franchisor.  The applicant then believed that Mr Gunther was acting as an agent of the franchisor and so therefore it is the franchisor who is liable. 

6. There were other arguments that the applicant brought forth to say that he had the correct respondent; however, none of those arguments, to my mind, seemed to carry much weight.  It seemed that there was almost a stubbornness and a wilful blindness that “the respondent” could have been anyone else.  When put to him that he should have taken action against the Gunther Consulting Group Proprietary Limited, the Applicant said to me that the reason that he did not was that he assumed that Gunther Consulting Group would simply say that they were following out the orders of the franchisor. 

7. Be that as it may, even if that had happened, that would not absolve the Gunther Consulting Group of any liability.  It may mean that the franchisor would have to have been joined as a third party, but this was something that was brought to the attention of the Applicant well into the proceedings and certainly was well and truly alive when the matter was mentioned before me in March on the first court date.  Still, notwithstanding that, the Applicant had taken no steps to have the Gunther Consulting Group joined as the proper Respondent.

8. But even if that were not the major matter, that somehow the sins of the son were visited on the sins of the father, as it were and that this was the proper Respondent, one then has to look at what is the cause of action. 

9. The Applicant says the cause of action comes from breaches of the Act; however, his application with regard to breaches of the Competition and Consumer Act 2010 (Cth) do not result from the sending of the email itself. He says that that results from the way and manner in which the Respondent or the Gunther Group have handled his complaint. That is not a matter for this Court.

10. The Applicant then points to the Spam Act 2003 (Cth) and says that this was an electronic commercial message. I have my doubts about whether it is an actual electronic commercial message, because it was not, as it were, sent to a group of people. It was sent directly to the Applicant, not as part of any particular group, but sent to him as an individual. Whether it was promoting goods and services, again, is arguable. I proceed on the basis that it could very well successfully be argued that the matter was a communication about the provision of goods and services.

11. The Applicant also talks of the breach of the Privacy Act 1988 (Cth) and in that respect has referred me to sections of that Act as well. I do have, again, concerns about that. The Applicant talks of the privacy principles (and there is part of the Act that says that people cannot contravene the privacy principles) but even if there is contravention of the Privacy Act 1988 (Cth), the appropriate redress is that the privacy commissioner is the person or entity to which complaints are made. The same holds true of the Spam Act 2003 (Cth).

12. The privacy commissioner then decides whether to investigate, then decides whether there has been an arguable breach of the Act and then decides whether they will bring the matter to Court for the imposition of civil penalties.  There is nothing under either the Spam Act 2003 (Cth) or the Privacy Act 1988 (Cth) that allows for individuals to take action for breaches of the Act, and there does not seem to be any way around it.

13. The Applicant also talks of the Respondent’s own internal privacy policy not being complied with. 

14. As I said during the course of argument, that point is arguable, but in the end, even if there were an argument that they had not complied with their own privacy policy, such a matter is not justiciable in this Court because there is no cause of action that has arisen. 

15. Again, even if there were some complaint about this that the legislation covers, it would only be a complaint through the privacy commissioner, and it is the privacy commissioner who then brings the matter to this Court. 

16. The Applicant, in his originating application, did also seek damages by way of compensation for the non-economic damage suffered because of the conduct of the Respondent, but in proceedings today he said that the money, to him, was not important.  He simply required a declaration that the company had done the wrong thing and for the company to apologize to him.  This action is, in my view, an action which is doomed to fail.  It has no prospects of success because there is no cause of action that comes to this Court. 

17. As I have said, the proper disposition of this is for the privacy commissioner to take action, if that entity does see that this is a matter where the privacy commissioner ought intervene. 

18. So for those reason, I am of the view that, pursuant to the rules of the Federal Circuit Court, this is a matter where I ought bring the proceedings that have been brought here to a close because there is no chance of successfully prosecuting them. 

19. I ought also say that the Applicant made an application in a case after this seeking some material in the affidavit of the solicitor to be not considered by this Court because of the fact that there was a technical breach of the way in which the affidavits were composed.  In the end, I did not look at those affidavits other than to note that the Applicant had made other job applications, which was something that the Applicant conceded before me.  I really relied upon the documents in the Applicant’s own application.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:1 June 2016