State Rail Authority of NSW v Johnston

[1999] NSWSC 202

CITATION:	State Rail Authority of NSW v Johnston & Anor [1999] NSWSC 202
CURRENT JURISDICTION:	Administrative Law
FILE NUMBER(S):	030084/98
HEARING DATE(S):	16 March 1999
JUDGMENT DATE:	17 March 1999
PARTIES :	State Rail Authority of New South Wales (Plaintiff) Neil Warren Johnston (1st Defendant) Consumer Claims Tribunal (2nd Defendant)
JUDGMENT OF:	Studdert J

LOWER COURT JURISDICTION:	Consumer Claims Tribunal
LOWER COURT FILE NUMBER(S) :	TNE97/697
LOWER COURT JUDICIAL OFFICER:	Mr R. Meehan

COUNSEL :	B. Connell (Plaintiff) J.B. Conomy (1st Defendant - excused) Submitting appearance (2nd Defendant)
SOLICITORS:	Tress Cocks & Maddox (Plaintiff) In person I.V. Knight (2nd Defendant)
CATCHWORDS:	Administrative law; infringement notice for travelling by rail without a ticket; assumption by Consumer Claims Tribunal of jurisdiction to entertain claim by the traveller for "opportunity to purchase a ticket"; whether Consumer Claims Tribunal had jurisdiction to entertain the claim; jurisdiction of the Local Court in relation to offences under the Transport Administration Act, 1988
ACTS CITED:	Consumer Claims Tribunals Act Transport Administration Act
CASES CITED:	Craig v South Australia (1995) 184 CLR163 Employers Mutual Indemnity Association Ltd v Federal Commissioner of Taxation (1943) 68 CLR 165 R v Small Claims Tribunal (1981) VR 602
DECISION:	See paragraph 32

THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION

STUDDERT J

Wednesday 17 March 1999

030084/98 STATE RAIL AUTHORITY OF NEW SOUTH WALES v NEIL WARREN JOHNSTON & ANOR

JUDGMENT
1 HIS HONOUR : The plaintiff, State Rail Authority, has brought proceedings in this Court by way of summons and seeks to restrain the second defendant, the Consumer Claims Tribunal, from entertaining a claim by the first defendant, Neil Johnston.
2 The second defendant filed a submitting appearance. The first defendant was represented by Mr Conomy of counsel, to oppose any order for costs against the first defendant. Mr Conomy informed the Court that the first defendant did not otherwise wish to be heard and was excused from further appearance.
3 On 3 October 1997 the first defendant was issued with an infringement notice for travelling without a valid ticket, having joined the train at Central railway station at 5.15 am with the intention of travelling in it to Awaba. The first defendant acknowledged that he was apprehended whilst without a ticket, but complained that he had been unable to find a ticket outlet before joining the train. In his representation by letter to the plaintiff of 10 October 1997 he complained that he offered to pay the fare to the officer who issued the notice but this offer was rejected. On 24 November 1997 the plaintiff wrote to the first defendant advising that the payment of the penalty for travelling without a ticket was being pursued and the first defendant was allowed twenty-one days to pay.
4 What next occurred was that the first defendant lodged a claim in the Consumer Claims Tribunal on 22 December 1997, naming State Rail as respondent, and seeking “opportunity to purchase a ticket”, presumably for the journey in the previous October.
5 The plaintiff challenged the jurisdiction of the Tribunal, expressing the grounds of its challenge in the statutory declaration of Mr David Gosling dated 20 March 1988 and the plaintiff requested the dismissal of the first defendant’s claim.
6 For reasons published on 13 July 1998 a referee ruled that he had jurisdiction to entertain the first defendant’s claim against the plaintiff but so far he has not proceeded to deal with the claim.
7 The plaintiff filed its summons in this matter on 25 August 1998 and on the hearing before me relied upon the following affidavit evidence:
° the affidavit of David Gosling sworn 7 August 1998;
° the affidavit of Derek Hilliard sworn 3 September 1998.
8 The file of the Consumer Claims Tribunal which included the reasons of the referee expressed pursuant to s 26 of the Consumer Claims Tribunals Act was tendered and admitted into evidence.
9 Mr Connell, who appeared for the plaintiff, informed the Court that this was the first occasion on which a person given an infringement notice had sought to pursue a claim in circumstances such as these in the Consumer Claims Tribunal. Mr Connell presented extensive written submissions arguing for the relief sought in the summons, and I have derived considerable assistance from those submissions.
10 Section 12 of the Consumer Claims Tribunal Act, 1987 affords the opportunity for intervention by this Court where the Tribunal has made an erroneous ruling as to its jurisdiction. The section provides:
“(1) Except as provided by subsection (2), a court of record has no jurisdiction to grant relief or a remedy by way of:
(a) a judgment or order in the nature of prohibition, mandamus, certiorari or other prerogative writ,
(b) a declaratory judgment or order, or
(c) an injunction,
in respect of a consumer claim heard and determined or to be heard or determined by a tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a claim.
(2) A court is not precluded from granting relief or a remedy of a kind referred to in subsection (1) if, in respect of a consumer claim:
(a) a tribunal has given a ruling under section 26 or refused or failed to give such a ruling after the jurisdiction of the tribunal to hear and determine the claim has been disputed by a party to the claim and the ground on which the relief or remedy is sought is that:
(i) the ruling was erroneous, or
(ii) the tribunal erred in refusing or failing to give the ruling after its jurisdiction was disputed…”
11 It is submitted that s 12(2)(a)(i) applies in the circumstances of this case. The jurisdiction of the Tribunal was challenged and the referee gave his ruling as to jurisdiction under s 26 of the statute. It is submitted that that ruling was erroneous.
12 Clause 6 of a regulation pursuant to the Transport Administration Act provides:
“6. (1) A person must not travel on a train without holding a valid ticket for the travel concerned.”
13 Section 117 of the Transport Administration Act makes provision for the issue of a penalty notice such as was issued to the first defendant, and s 118 makes provision for proceedings in the event of non-payment of the penalty prescribed in the notice. Section 118 provides:
“Proceedings for an offence against this Act or the regulations shall be dealt with summarily before a Local Court constituted by a Magistrate sitting alone.”
14 It is plain by reference to the Transport Administration Act that the Local Court is the appropriate tribunal to entertain proceedings for an offence such as that which it is alleged that the first defendant committed on 3 October 1997.
15 Section 11 of the Consumer Claims Tribunals Act excludes the jurisdiction of “courts” in certain cases, where a consumer claim has been lodged under the Act, but the section has no application to proceedings to be taken in the Local Court under s 118 of the Transport Administration Act. Section 11 would not inhibit proceedings against the first defendant for travelling without a valid ticket, since such proceedings would be taken in the Local Court “empowered by law to impose a penalty…for a contravention of the law.” Hence by operation of s 11(1)(c) of the Consumers Claims Tribunals Act that section would not operate to interfere with the jurisdiction of the Local Court.
16 The referee’s finding that the Tribunal had jurisdiction to hear and determine the claim of the first defendant calls for examination of the Consumer Claims Tribunals Act.
17 Under s 10 a Tribunal constituted under the Act “has jurisdiction to hear and determine any consumer claim referred to it in accordance with this Act.’
18 “Consumer claim” is defined in s 3 as meaning:
“(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.”
19 According to his stated reasons the referee appears to have decided that the first defendant’s claim was a claim for the supply of specified services. “Supply” is defined in s 3 as follows:
“(a) in relation to goods, includes supply goods by way of a contract for the sale, exchange, lease, hire or hire-purchase of goods or an alleged contract for the sale, exchange, lease, hire or hire-purchase of goods, and
(b) in relation to services, includes provide, grant or render services for valuable consideration under a contract or for valuable consideration claimed to have been agreed to under an alleged contract.”
20 “Supplier” is stated in the same section as meaning:
“a person who, in the course of carrying on, or purporting to carry on, a business, supplies goods or services.”
21 “Services” is defined in s 3 as follows:
“services includes any rights (including rights in relation to, and interests in, property) benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce and, without limiting the generality of the foregoing, includes:
(a) the performance of work (including work of a professional nature), whether with or without the supply of goods,
(b) the provision of gas or electricity or the provision of any other form of energy,
(c) the provision, or the making available for use, of facilities for amusement, entertainment, recreation or instruction,
(d) the letting of premises for vacation or recreational purposes,
(e) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction,
(f) the provision of insurance cover (but not assurance cover in respect of a person’s life),
(g) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking, and
(h) subject to section 10(4), the provision of credit,
but does not include rights or benefits being the supply of goods or the performance of work under a contract of employment.”
22 What is the first defendant’s claim for the supply of specified services? His claim form lodged with the Tribunal seeks “the opportunity to purchase a ticket.” Presumably what is sought is a ticket for the journey undertaken on 3 October 1997. However even if the plaintiff was ordered to provide a ticket now that would not affect the charge to be brought in the Local Court which relates to his travelling without a ticket on 3 October 1997.
23 In any event a claim to be issued a ticket is not a claim for the supply of services, even allowing for the width of the statutory definitions set out above: see Employers Mutual Indemnity Association Ltd v Federal Commissioner of Taxation (1943) 68 CLR 165 and in particular the judgment of Latham CJ at 174 where the Chief Justice said:
“In my opinion the words ‘rendering of services to’ persons mean doing work of some kind for those persons. When it is the primary object of the company to do work for other persons, then it may be said that the primary object of the company is the rendering of services to such persons. But the issuing of an insurance policy to a person of the type described is not doing work for that person. It is making a contract with him. Work may be done for a person in business by a contract with him, but the making of a contract with him does not amount to doing work for him.”
24 See also R v Small Claims Tribunal (1981) VR 602 and in particular the judgment of Gobbo J at 606-607.
25 Nor could it otherwise be said that the claim of the first defendant arose from the supply of services. If the use that the first defendant made of the train on which he travelled was to be treated as arising from the supply of transport services, that occurred after the subject matter of the claim which concerned the non provision of a ticket.
26 It is not in any event apt to describe what occurred as the supply of services by the plaintiff to the first defendant. In my opinion Mr Connell is correct in his analysis that what occurred was that the plaintiff simply joined a train at Central railway without a ticket and there was no supply in the strict sense. There was a use by the first defendant but there was no deliberate provision of a service by the plaintiff for the first defendant.
27 The jurisdiction of the Tribunal may be tested by posing the question as to what relief it could give under s 30, which section defines the orders that a tribunal may make under the statute. Under s 30 it may make one or more of the following orders as it considers appropriate:
“(1) In determining a consumer claim wholly or partly in favour of a claimant, a tribunal may, subject to sections 31 and 32, make such one or more of the following orders as it considers appropriate:
(a) an order that requires a respondent to pay to the claimant a specified amount of money,
(b) an order that requires a respondent to perform specified work in order to rectify a defect in goods or services to which the claim relates,
(c) an order that requires a respondent to supply to the claimant specified services other than work,
(d) in the case of a claim for relief from payment of money, an order declaring that a specified amount of money is not due or owing by the claimant to a respondent,
(e) an order that requires a respondent to deliver to the claimant goods of a specified description,
(f) an order that requires a respondent to return to the claimant specified goods which are in the possession or under the control of that respondent, whether the property in the goods has passed or not,
(g) an order that requires a respondent to replace goods to which the claim relates.”
28 In this case the referee does not appear to have applied his mind to the relief he could give on the first defendant’s claim. He said at p 5 of his reasons:
“I agree that section 118 of the Transport Administration Act 1988 sets out the mode of dealing with offences. However, I am not in any way dealing with an alleged ‘offence’ nor am I entitled so to do.
In coming to that conclusion I do not consider the claimant’s submission concerning the application of subsection (5) of section 117 really applies to matter in the nature of a claim to the Consumer Claims Tribunal.
I further agree that the Fines Act sets out the method of the annulment of a penalty notice enforcement order. I believe that hitherto any attempt to annul a penalty notice enforcement order and/or to have the original ‘alleged offence’ determined has traditionally been dealt with in a local court. However, in a claim lodged with this Tribunal I am not attempting to determine the correctness of the issuing of the penalty notice upon the claimant.
I concede that if the claimant is ultimately successful in this claim depending on the order - if any- that order may have some bearing on the criminal proceeding. However, I do not consider I should deal with the aspect of jurisdiction on the proposition of what my final order - if any - could mean in the future.”
29 In my opinion the referee could grant no appropriate relief of the type contemplated in s 30(1) in this case.
30 Mr Connell referred to Craig v South Australia (1995) 184 CLR 163 as authority for the proposition that an inferior court falls into jurisdictional error if it mistakenly asserts the existence of jurisdiction or if it misapprehends the nature of its functions or powers: see in particular the judgment of Brennan, Deane, Toohey, Gaudron and McHugh JJ at 177. I am persuaded by the submissions advanced by Mr Connell that there has been a jurisdictional error in the decision of the referee.
31 I conclude therefore that the plaintiff is entitled to relief under its summons.
Formal orders
32 1. I make the declaration sought in paragraph 1 of the summons.
2. I grant the injunction sought in paragraph 2 of the summons.
3. I make the order sought in paragraph 3 of the summons.
4. I make no order as to costs.

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