Ritson v PATS Consulting Pty Ltd (No.3)
[2012] FMCA 1248
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RITSON v PATS CONSULTING PTY LTD (No.3) | [2012] FMCA 1248 |
| CONSUMER LAW – Default of respondent – appropriate orders. |
| Competition and Consumer Act 2010 (Cth), ss.16, 18 of Australian Consumer Law in Schedule 2 Federal Magistrates Court Rules 2001 (Cth), rr.13.03A, 13.03B |
| Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd [2006] FCA 1427 Ritson v PATS Consulting Pty Ltd [2012] FMCA 837 Ritson v PATS Consulting Pty Ltd (No 2) [2012] FMCA 1019 |
| Applicant: | BRENDAN RITSON |
| Respondent: | PATS CONSULTING PTY LTD (ABN 55 140 733 446) |
| File Number: | SYG 1165 of 2012 |
| Judgment of: | Barnes FM |
| Hearing date: | 4 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 4 December 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Mitchell Lawyers |
| Respondent: | No appearance |
UPON ADMISSIONS WHICH PATS CONSULTING PTY LTD IS TAKEN TO HAVE MADE CONSEQUENT UPON NON-COMPLIANCE WITH ORDERS OF THE COURT IT IS DECLARED THAT:
The respondent engaged in conduct that was misleading and deceptive or that was likely to mislead and deceive in contravention of s.18 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
THE COURT ORDERS THAT:
The respondent pay to the applicant the sum of $3,514.50 for the loss or damage suffered by the applicant as a result of the respondent's contravention of s.18 together with interest thereon in the sum of $187.76.
The respondent pay the costs of the applicant on an indemnity basis. Such costs to be as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1165 of 2012
| BRENDAN RITSON |
Applicant
And
| PATS CONSULTING PTY LTD (ABN 55 140 733 446) |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This matter was commenced by application filed on 29 May 2012 and statement of claim filed on the same date. The applicant now relies on an amended application filed on 23 November 2012 and an amended statement of claim filed on 26 November 2012. The applicant contends, relevantly, that the respondent engaged in conduct that was misleading or deceptive, or likely to mislead or deceive in contravention of s.18 of the Australian Consumer Law, to be found in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
In circumstances where the respondent is said to have been in default in various ways, the applicant seeks orders on default pursuant to r.13.03B(2)(c) and (d) of the Federal Magistrates Court Rules 2001 (Cth).
Rule 13.03A of the Federal Magistrates Court Rules deals with when a party is in default. Relevantly, a respondent is in default if he fails to give an address for service before the time for doing so has expired, or to file a response before the time has expired, or to comply with an order of the Court, or to defend the proceedings with due diligence as indicated.
In this case, the respondent has been in default in a number of respects. First, the respondent company failed to file a response within 14 days of service of the original application, service being attested to in the affidavit of Mr Ritson, sworn and filed on 24 October 2012. The filing of a response is required under the Federal Magistrates Court Rules.
When the matter first came before the Court, a Mr Ryan sought leave to appear for the company. He was given leave to appear for the limited purposes of that application. However, on 27 August 2012 the application for leave for Mr Ryan to represent the respondent was dismissed (see Ritson v PATS Consulting Pty Ltd [2012] FMCA 837).
This had the effect that the company had to be legally represented (see r.9.04 of the Federal Magistrates Court Rules). Subsequently, the respondent has not filed a notice of address for service or any response or defence, and has not attended on any of the occasions when the matter has been before the Court. As detailed in the subsequent judgment in Ritson v PATS Consulting Pty Ltd (No 2) [2012] FMCA 1019 on 25 October 2012 (in connection with an application for costs of the application for leave for Mr Ryan to represent the respondent) there was no appearance for the respondent when the matter was before the Court, nor has it filed a notice of address for service, response and defence, as ordered. Nor did the respondent comply with a subsequent order to file a notice of address for service providing the name of the legal representative to act for it.
I note that on various occasions there has been last minute contact with the Registry by Mr Ryan, notwithstanding the fact that Mr Ryan did not have leave to appear for the company. He has sought a delay in the proceedings on the basis that legal representation was about to be obtained. On one occasion the Registry received a letter from a solicitor indicating that he had instructions to act for the respondent and was to file a notice of address for service. No notice of address for the respondent was subsequently filed. There is still no notice of address for service in relation to the respondent. The respondent has not filed any other documentation or, since Mr Ryan was denied leave to appear, appeared before the Court in these proceedings.
In addition, the respondent has not complied with the order made on 25 October 2012 that the respondent pay the costs of Mr Ryan’s application and the costs thrown away by reason of an adjournment of those proceedings in the sum of $2,216.50. The order that was made on that occasion was an order that such costs be paid within 14 days. It was not an order for interlocutory costs not due until final resolution of the matter (unlike the costs ordered on 14 November 2012). The respondent is in default in not having paid the costs that were ordered on 25 October 2012.
In these circumstances, I am satisfied that the respondent is in default as provided for in the Federal Magistrates Court Rules. It is then a question of whether judgment should be given against the respondent for the relief the applicant appears entitled to on the statement of claim and whether the court is satisfied that it has the power to grant such relief as these proceedings were commenced by an application supported by a statement of claim (r.13.03B(2)(c)).
What is in issue under a provision such as r.13.03B(2)(c) is whether on the face of the statement of claim, in this case the amended statement of claim, there was a claim for relief sought and that the court has jurisdiction to grant that relief. The applicant was given leave to give oral evidence to clarify, but not alter, the pleaded case (see Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd [2006] FCA 1427).
The amended statement of claim clarifies that the applicant, described as the client, attended the aptitude test preparation business of PATS Consulting Proprietary Limited trading as Pilot Aptitude Training Systems (referred to for convenience as PATS) in the State of Victoria.
The amended statement of claim recites that PATS purportedly owns and operates a named website. Tendered in evidence today were a number of screen shots of parts of that website. There was evidence from Mr Ritson that the websites were in the form shown on the tendered documents as at 1 January 2011, on which date he visited the website. From at least that date the PATS website advertised services including an aptitude test preparation course for the Jetstar cadet pilot program. It is pleaded (and there is evidence in the screen shots to support the claims) that the website made representations about characteristics or features of the course, in particular it was represented that the courses were individual courses, that they could only be done on a “one client – one instructor” basis, and that all courses were conducted on a one client – one instructor basis at the Melbourne CBD office.
In addition, the website represented that PATS had received testimonials from named individuals, as displayed on the website. Other representations were made in relation to the standard and expertise of the course. It is pleaded, and Mr Ritson also gave evidence (which, for present purposes, I accept), that in reliance upon such representations, in particular on the one client – one instructor representation (the course representation), as well as the testimonial and expertise representations, he made a telephone call to PATS in early January 2011 and subsequently made a booking to attend the course. He also made a payment to PATS to attend the course in the sum of $3,514.50 and arranged and paid for accommodation and travel to and from Melbourne from Sydney to enable him to attend the course.
The amended statement of claim pleads that Mr Ritson attended the course between 9 and 11 January 2011 in circumstances where a room was divided into cubicles and, notwithstanding the earlier representations, there were no more than three instructors at any one time for five students. It is pleaded that by reason of this and contrary to the course representation the respondent did not provide to the applicant an aptitude test preparation course on a one client – one instructor basis. Mr Ritson has given evidence of the importance of this to him in circumstances where he saw his mathematical ability as insufficient and was aware of, but had rejected, the opportunity to participate in courses in a group environment. He wished for instruction on a one-to-one basis.
It is also pleaded that at some times there were only two instructors present and that Mr Ritson was not provided with instruction on a constant one-to-one basis by any instructor in accordance with the course representation. He also gave evidence of some distraction and disturbance arising from the need for instructors to move to and fro between students and for students to indicate when they needed assistance.
On this basis, it is pleaded that the respondent did not provide to the applicant the course in accordance with the course representation and that the applicant would not have made the payment, paid for the travelling and accommodation or attended the course had he known that the respondent would not conduct the course in accordance with the representation.
In these circumstances, I am satisfied that the applicant is entitled to relief on the basis that in making the course representation the respondent engaged in conduct that was misleading or deceptive, or likely to mislead or deceive within s.18 of the Australian Consumer Law. It is pleaded not only that the conduct was likely to mislead or deceive, but also that Mr Ritson was, in fact, actually deceived and hence has an entitlement to damages, presumably under s.236 of the Australian Consumer Law.
The damages sought in the application are in the sum of $3,514.50, being the course payment fee. In addition, interest is sought in a total amount of $187.76.
It is also sought that the Court make a declaration pursuant to s.16 of the Federal Magistrates Act 1999 (Cth) that the respondent engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s.18 of the Australian Consumer Law.
I raised with the solicitor for the applicant the reluctance of courts to make a declaration in circumstances such as the present. It was, however, acknowledged that the basis on which the declaration was made could and should be clarified by making the declaration upon admissions that the respondent is taken to have made consequent upon non-compliance with orders of the court in the manner discussed by Kiefel J in Australian Competition and Consumer Commission v Dataline.
On the evidence before the Court, including the amended statement of claim, the evidence of Mr Ritson, and the short oral evidence of his solicitor, Mr Mitchell, in relation to non-payment of the costs that were ordered to be paid within 14 days, I am satisfied that there has been a default by the respondent and that the Court has power to grant the relief. I am satisfied there has been evidence of proper service on the respondent. I am satisfied Mr Ritson is entitled on the statement of claim to judgment for the relief sought, having regard to the evidence that he gave and to the loss or damage that is claimed. I am satisfied that there is a claim in the amended statement of claim in appropriate terms in relation to a contravention of s.18 of the Australian Consumer Law.
The other issue that was raised in these proceedings was that costs should be awarded on an indemnity basis. In all the circumstances, I am satisfied that this is one of the exceptional circumstances in which costs should be ordered on an indemnity basis, having regard to the clear case of ongoing defaults by the respondent. The quantification of those costs should be, as was sought by the applicant, on the basis that such costs be either as agreed or taxed in accordance with the Federal Court Rules.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 16 January 2013
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