The Secretary of the Department of Education v Trailer Kingdom Pty Ltd

[2024] NSWCATCD 49

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

The Secretary of the Department of Education v Trailer Kingdom Pty Ltd [2024] NSWCATCD 49

Hearing dates:

10 July 2024

Date of orders:

16 August 2024

Decision date:

16 August 2024

Jurisdiction:

Consumer and Commercial Division

Before:

G A Kinsey, General Member

Decision:

(1) The application is dismissed. The Tribunal does not have jurisdiction to hear and determine the claim.

Catchwords:

CONSUMER CLAIM- meaning of “consumer” in section 79D of the Fair Trading Act 1987- meaning of “natural person” in section 79D of the Fair Trading Act 1987-is a government department a “consumer” for the purposes of section 79D of the Fair Trading Act 1987-jurisdiction of Tribunal to determine application made by a government department as a consumer claim

Legislation Cited:

Fair Trading Act 1987 (NSW)

Interpretation Act 1987 (NSW)

Cases Cited:

Jenkinson v Chaw [2015] NSWCATAP 127

Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186

Skiba vSerendipity(WA) Pty Ltd t/as Advanced Personal Management [2019] NSWCATAP 224

Texts Cited:

Nil

Category:

Principal judgment

Parties:

The Secretary of the Department of Education (Applicant)
Trailer Kingdom Pty Ltd (Respondent)

Representation:

Samuel Byron (Legal Officer) for Applicant

Boda Zeng for Respondent

File Number(s):

2023/00449910

Publication restriction:

Unrestricted

REASONS FOR DECISION

PARTIES

1. The Applicant is the Secretary of The Department of Education. For the sake of convenience, the Applicant shall hereinafter be referred to as “The Department”.

2. The Respondent is Trailer Kingdom Pty Ltd. The Respondent conducts business as a manufacturer and supplier of trailers including food trailers. For the sake of convenience, the Respondent shall hereinafter be referred to as “Trailer Kingdom”.

APPLICATION

3. In an application filed in the Tribunal on 12 December 2023, The Department requested orders for Trailer Kingdom to refund the purchase price of $56,790.00 paid for a food trailer and to accept the return the trailer.

4. The Department alleged the food trailer had numerous defects and was not of acceptable quality in breach of the consumer guarantee in section 54 of Australian Consumer Law (“the ACL”).

5. In the alternative, The Department alleged Trailer Kingdom had engaged in misleading or deceptive conduct in breach of section 18 of the ACL. The Department abandoned this claim at the hearing..

BACKGROUND

6. In or about May and June 2022, Camden High School made enquiries with Trailer Kingdom about purchasing an aluminium food trailer for use by its students undertaking the hospitality course.

7. After negotiations, the parties agreed on or about 30 June 2022, to the specifications and price of $56,790.00 for the food trailer.

8. Trailer Kingdom provided Camden High School with a tax invoice on 1 July 2022.

9. Trailer Kingdom required Camden High School to pay 50% deposit to confirm the order. The deposit of $28,395.00 was paid by 2 equal instalments on 13 July and 4 October 2022.

10. Upon payment of the deposit, the parties entered into a contract.

11. The food trailer was delivered to Camden High School on 12 October 2022. The school’s representative noted numerous defects in the trailer and rejected it. She asked the driver to return the food trailer to Trailer Kingdom but he refused.

12. Despite written demands, Trailer Kingdom refused to accept return of the food trailer or provide a refund of the purchase price.

13. The Department filed an application to the Tribunal on 12 December 2023

JURISDICTION

14. A threshold issue is the Tribunal’s jurisdiction to hear the application. The Department submitted the claim is a “consumer claim” and the Tribunal has jurisdiction to hear the application.

15. The Tribunal’s jurisdiction to determine consumer claims is found in Part 6A of the Fair Trading Act 1987 (“the FTA”).

16. Section 28 of the FTA provides that the Australian Consumer Law applies as a law of New South Wales.

17. In Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 at [171] the Appeal Panel stated that the Tribunal’s jurisdiction to hear and determine a consumer claim that is based on a contravention of the ACL is subject to the prerequisites of Part 6A of the FTA being satisfied.

18. Sections 79B to 79X are found in Part 6A of the FTA.

19. Section 79L of the FTA provides that a consumer may apply to the Tribunal for a determination of a consumer claim.

20. Section 79E of the FTA defines a “consumer claim” to mean:

(1)    For the purposes of this Part, a

"consumer claim" means a claim by a consumer, for one or more of the following remedies, that arises from a supply of goods or services by a supplier to the consumer (whether or not under a contract) or that arises under a contract that is collateral to a contract for the supply of goods or services:

(a)   the payment of a specified sum of money,

(b)   the supply of specified services,

(c)   relief from payment of a specified sum of money,

(d)   the delivery, return or replacement of specified goods or goods of a specified description.

(2)    For the avoidance of doubt, a reference in this Part to a consumer claim includes a reference to a claim by a consumer against a supplier (for example, a manufacturer or wholesaler) who is not the direct supplier of goods or services to the consumer if the claim arises from or in connection with the supply of those goods or services by the direct supplier to the consumer.

21. It was not disputed that the remedy being sought by The Department is a remedy specified in section 79E(1)(a) and (d), being an order for the payment of a specified sum of money and return of the food trailer.

22. In Jenkinson v Chaw [2015] NSWCATAP 127 the Appeal Panel considered the definition of a “consumer claim.” In Jenkinson at [28], the Appeal Panel stated “a consumer claim is not defined by reference to the identity of the party sued. The causative relationship is expressed in words of broad import, namely that the claim “arises from” a relevant supply.”

23. In Skiba v Serendipity (WA) Pty Ltd t/as Advanced Personal Management [2019] NSWCATAP 224 the Appeal Panel set out the elements of a consumer claim at [56]:

As noted by the Appeal Panel in Kennett (supra) at [13], based on the meaning of ‘consumer claim’ in s 79E(1), and other definitions relevant to the words and terms in that section, the elements of a consumer claim arising from the supply of services under Part 6A of the FT Act, include the following:

(1) the claim must be made by a ‘consumer’ as defined in s 79D. Section 79H provides that a person claiming to be a consumer is to be presumed to be a consumer until the contrary is proved;

(2) the claim must arise from a ‘supply’ as defined in s 79G(2);

(3) the claim is for ‘services’ as defined in s 79F;

(4) by a ‘supplier’ as defined in s 79D, to a ‘consumer’ (whether or not under a contract) in the course of carrying on or purporting to carry on a ‘business’, as defined in s 4; and

(5) the claim seeks one of the remedies listed in s 79E(1)(a) to (d).

24. For a claim to be a consumer claim, the claim must be by a “consumer” as defined in section 79D of the FTA.

25. Section 79D defines “Consumer” to mean:

consumer means any of the following persons or bodies to whom or to which a supplier has supplied, or agreed to supply, goods or services (whether or not under a contract), or with whom or with which a supplier has entered into a contract that is collateral to a contract for the supply of goods or services—

(a)  a natural person,

(b) a firm (within the meaning of the Partnership Act 1892),

(c) a small proprietary company (within the meaning of the Corporations Act 2001 of the Commonwealth),

(d) an owners corporation constituted under the Strata Schemes Management Act 2015,

(e)  a company that owns an interest in land and has a memorandum or articles of association conferring on each owner of shares in the company a right to occupy under a lease or licence a part or parts of a building erected on the land,

(f)  an incorporated association,

(g)  an unincorporated body whose members are associated for a common purpose,

(h)  a company limited by guarantee (other than a company limited both by shares and by guarantee).

26. A person claiming to be a consumer is presumed to be a consumer until the contrary is proved (Section 79H). The onus of proving that a person or body is not a consumer is on the party who seeks to establish that fact.

27. Although Trailer Kingdom did not dispute The Department was a “consumer” as defined in section 79D, the Tribunal must satisfy itself about its jurisdiction to make the orders sought. The Tribunal must be satisfied the claim is a “consumer claim”.

28. The Department provided a copy of an advice from Hall & Wilcox dated 20 February 2024. Relevantly, the advice stated:

We note that none of the cases involve a claim in NCAT’s consumer and commercial division (they are administrative law or industrial law matters), however, on balance, we consider that the Secretary (like the Minister) is considered a “natural person” for the purposes of the Fair Trading Act 1987 (NSW) and the Australian Consumer Law and therefore has standing on behalf of the Department to commence a commercial claim in in NCAT.

29. The thrust of The Department’s submission is that The Secretary, being a “natural person”, falls within the definition of a “consumer” in section 79D, and accordingly, the necessary elements for a consumer claim are satisfied.

30. Hall & Wilcox did not refer to any cases in the Consumer and Commercial Division of NCAT in which The Secretary had previously been the applicant. The NCAT cases cited in the advice were cases where The Secretary was named as the respondent as opposed to being the applicant.

31. The Tribunal turns to a consideration of The Department’s submission.

32. The Department of Education is listed in Part 1 of Schedule 1 of the Government Sector Employment Act 2013 (the “GSEA”) as a Department.

33. Section 23 of the GSEA provides the head of a Department is the Secretary of the Department.

34. Section 23(2) of the GSEA provides the office of Secretary of a Department is established by this section.

35. The role and responsibilities of the Secretary of the Department are set out in section 25(3) and (4) of the GSEA. Those roles and responsibilities are:

(3) The role of a Secretary of a Department includes, but is not limited to, the following--

(a) policy adviser--acting as principal official policy adviser to the Minister or Ministers to whom the Secretary is responsible,

(b) manager--ensuring the delivery of the Government's policies and programs and collaborating with other agencies across the government sector to achieve the Government's stated outcomes,

(c) leader--providing stewardship within the Department and, in partnership with other Secretaries and the Public Service Commissioner, across the government sector,

(d) employer--exercising the employer functions of Government under this Act,

Note--: See section 26.

(e) other roles conferred or imposed on the Secretary by or under this or another Act or another law.

(4) Without limiting subsection (1), the responsibilities of a Secretary of a Department also include the following--

(a) to manage the affairs of the Department efficiently, effectively and ethically,

(b) to provide frank and fearless advice to the Minister or Ministers to whom the Secretary is responsible about matters relating to the Department and its related agencies,

(c) to implement measures to ensure the Department complies with the law,

(d) to provide leadership, strategic direction and a focus on results for the Department,

(e) to maintain clear lines of communication with the heads of the Department's related agencies,

(f) to engage with stakeholders, particularly in relation to the core activities of the Department,

(g) to ensure that the Department has a strong strategic policy capability that can consider complex, whole-of-government issues,

(h) to assist Ministers in fulfilling Ministerial accountability obligations to Parliament in providing factual information in relation to the operation and administration of the Department,

(i) to accept and take other responsibilities conferred or imposed on the Secretary by or under this or another Act or another law.

36. The words “natural person” are not defined in the FTA or the Interpretation Act 1987.

37. The word “person” is defined in the Dictionary in Schedule 4 to the Interpretation Act 1987 to include “an individual, a corporation and a body corporate or politic”

38. The Dictionary in Schedule 4 to the Interpretation Act 1987 defines “individual” to mean “a natural person”.

39. The authorities recognise that a “natural person” is an actual human being and is different to an “artificial person” or “statutory person”.

40. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, the Court said at [126]:

However, Lenah can invoke no fundamental value of personal autonomy in the sense in which that expression was used by Sedley LJ. Lenah is endowed with legal personality only as a consequence of the statute law providing for its incorporation. It is "a statutory person, a persona ficta created by law" which renders it a legal entity "as distinct from the personalities of the natural persons who constitute it" [141] Lenah's activities provide it with a goodwill which no doubt has a commercial value. It is that interest for which, as indicated earlier in these reasons, it seeks protection in this litigation. But, of necessity, this artificial legal person lacks the sensibilities, offence and injury to which provide a staple value for any developing law of privacy.

41. The term “natural person” refers to a living human being, with certain rights and responsibilities under the law. By contrast, a “legal person”, “artificial person” or “statutory person” is a group of people that is considered by law to be acting as a single individual.

42. The distinction between a natural person is important under the law to establish whether a person is acting or appearing as himself, acting or appearing on behalf of a business or other entity. This is because a legal statutory or artificial person is not a person at all but is instead a collective of people that is considered as a single entity for the purposes of action.

43. There are numerous other differences between a natural person and a legal, statutory or artificial person. Generally, a natural person has a personality, has the power to think and make choices for himself, and in the eyes of the law has certain rights and privileges.

44. A legal, statutory or artificial person can only perform functions through natural persons. It does not die naturally but is dissolved or disbanded as provided for in the law.

45. In this case, the contract for the purchase of the foodtrailer was between Camden High School and/ or Department of Education and Trailer Kingdom (refer to tax invoice TK20220701002 dated 1 July 2022).

46. The person or body to whom Trailer Kingdom supplied the foodtrailer was Camden High School and /or the Department of Education. There was never a supply to or agreement to supply The Secretary of the Department of Education.

47. The Tribunal is satisfied the Camden High School and Department of Education are legal, statutory or artificial persons. Any proceedings instituted by The Secretary of the Department of Education are in performance of his functions as the head of the Department and not in any personal capacity. Any proceedings instituted by The Secretary by or on behalf of the Department are in a representative capacity.

48. Parliament was specific in using the words “natural person” in the definition of “consumer” in section 79D of the FTA. It is a rule of statutory interpretation that words in a statute are to be given their ordinary meaning unless that interpretation should lead to an absurd result.

49. If the legislature had intended to include in the definition of “consumer” legal, statutory or artificial persons, it would have used appropriate language such as “person” rather than the restrictive expression “natural person”.

50. The Tribunal finds that the ordinary meaning of the words “natural person” is “living human being”.

CONCLUSION

51. The applicant is not a “consumer” as defined in section 79D of the FTA.

52. The claim is not a claim by a consumer that arises from the supply of goods to the consumer by the supplier. Accordingly, an essential element for a claim to be a consumer claim as defined in section 79E of the FTA has not been satisfied (see Skiba v Serendipity (WA) Pty Ltd t/as Advanced Personal Management [2019] NSWCATAP 224).

53. The Tribunal finds the claim is not a consumer claim. The Tribunal has no jurisdiction to hear and determine the application.

54. The application is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 02 April 2025