Therese Jenner v Kanga Birtles
[2014] NSWCATCD 63
•06 May 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Therese Jenner v Kanga Birtles [2014] NSWCATCD 63 Hearing dates: 22 April 2014 Decision date: 06 May 2014 Before: J Levingston, General Member Decision: Transfer of proceedings
These proceedings are to be transferred to the NSW Local Court at Nowra (in accordance with the rules of that court) as a Court that has jurisdiction in the matter, and to continue before that court as if the proceedings had been instituted there.
Catchwords: Admiralty - Tribunal has no jurisdiction - transfer to Local Court of NSW Legislation Cited: Admiralty Act 1988 (Cth)
Australian Consumer Law (NSW)
Civil and Administrative Tribunal Act (NSW) 2013
Constitution s 77(iii)
Consumer Claims Act 1998 (NSW) ("CCA")
Trade Practices Act 1974 (Cth)Cases Cited: China Shipping (Australia) Agency Co Pty Limited v D V Kelly Pty Limited [2010] NSWSC 1556
Da Silva and Da Silva Constructions Pty Ltd v Bresond Pty Ltd [2008] NSWSC 158
Trust Company of Australia Limited (t/as Stockland Property Management) v Skiwing Pty Ltd (t/as Café Tiffany's) [2006] NSWCA 185Category: Principal judgment Parties: Therese Jenner (applicant)
Kanga Birtles (respondent)File Number(s): GEN 14/18884
reasons for decision
APPLICATION
This is a claim concerning repairs to the applicant's yacht. The claim is brought under the Consumer Claims Act 1998 (NSW) ("CCA") and the Australian Consumer law (NSW) ("ACL"). However, it is also a claim to which the Admiralty Act 1988 (Cth) applies.
The short facts of this matter are that the applicant is the owner of a yacht, the respondent carried out repairs to the applicant's yacht and a dispute arose about those repairs, after which the respondent declined to do more work and left the yacht tied up to a public wharf for the applicant to collect. The dispute is said to involve less than $10,000.00.
Appearances
Both parties appeared and after some negotiations between them their dispute remained unresolved.
Jurisdiction
The NSW Civil and Administrative Tribunal ("NCAT") is the successor to all the previous Tribunals in NSW including the Consumer, Trader and Tenancy Tribunal ("CTTT"), and this matter has been assigned to the Consumer and Commercial Division of NCAT.
The problem for the applicant is that the claim comes within the Admiralty jurisdiction of the Commonwealth and NCAT has no jurisdiction to determine an Admiralty claim.
Admiralty claims
"Maritime Claims" are within the Admiralty jurisdiction of the Commonwealth and the Admiralty Act applies to all maritime claims: see Admiralty Act s5 (Application) which relevantly provides:
(1) Subject to the succeeding provisions of this section, this Act applies in relation to:
(a) all ships, irrespective of the places of residence or domicile of their owners; and
(b) all maritime claims, wherever arising.
(2) ...
(3) This Act does not apply in relation to a cause of action that arose:
(a) in respect of an inland waterways vessel; or
(b) in respect of the use or intended use of a ship on inland waters.
(4) ...
A "ship" is widely defined in s3 (Interpretation):
"ship" means a vessel of any kind used or constructed for use in navigation by water, however it is propelled or moved, and includes:
(a) a barge, lighter or other floating vessel;
(b) a hovercraft;
(c) an off-shore industry mobile unit; and
(d) a vessel that has sunk or is stranded and the remains of such a vessel;
but does not include:
(e) a seaplane;
(f) an inland waterways vessel; or
(g) a vessel under construction that has not been launched.
A yacht used in navigation by water is a "ship" when it is used on the "sea" rather than "inland waters" as an "Inland waterways vessel" see s3 (Interpretation):
"inland waters" means waters within Australia other than waters of the sea.
"inland waterways vessel" means a vessel used or intended to be used wholly on inland waters.
"sea" includes all waters within the ebb and flow of the tide.
The Admiralty Act governs a "General Maritime Claim" defined in s4(3) which includes repairs to the applicant's yacht, see Admiralty Act s4(3)(o):
(1) A reference in this Act to a maritime claim is a reference to a proprietary maritime claim or a general maritime claim.
(2) ...
(3) A reference in this Act to a general maritime claim is a reference to:
...
(o) a claim in respect of the alteration, repair or equipping of a ship;
Once it is established that the claim comes within Admiralty jurisdiction, NCAT has no jurisdiction, see Admiralty Act 1988 (Cth) s 9 (Admiralty jurisdiction in personam) which relevantly provides:
(1) Jurisdiction is conferred on the Federal Court, the Federal Magistrates Court and on the courts of the Territories, and the courts of the States are invested with federal jurisdiction, in respect of proceedings commenced as actions in personam:
(a) on a maritime claim; or
...
There is no doubt that NCAT does not have "in personam" Admiralty jurisdiction as it is not a "court of a State". In China Shipping (Australia) Agency Co Pty Limited v D V Kelly Pty Limited [2010] NSWSC 1556 at [13] to [16] Rein J considered the jurisdiction of the CTTTto hear a matter within Admiralty jurisdiction that was also within the definition of a 'consumer claim' under the Consumer Claims Act 1998 (NSW). However, s 9 of the Admiralty Act limited jurisdiction to 'courts of the state'. The reference to 'courts of the states' is a reference to the Constitution s77(iii) which has been construed as fixing its own criteria for the bodies that are and are not a court for the purposes of exercising federal judicial power. Rein J reviewed these criteria and determined that the Tribunal was not a court for the purposes of the Admiralty Act s9 and therefore had no jurisdiction to hear the matter. It made no difference that there was also a consumer claim, as Admiralty jurisdiction prevails: China Shipping at [16].
A similar conclusion was reached in Trust Company of Australia Limited (t/as Stockland Property Management) v Skiwing Pty Ltd (t/as Café Tiffany's) [2006] NSWCA 185, where the NSW Court of Appeal held that the NSW Administrative Decisions Tribunal ("ADT") was not a court for the purposes of the Commonwealth Constitution s77(iii) which permits the Commonwealth to invest any court of the State with federal jurisdiction The ADT was not an institution comprised of judges and did not meet the requirement for a conferral of federal jurisdiction. The Trade Practices Act 1974 (Cth) s86(2) limited the exercise of jurisdiction under that Act to "courts of a state", now repealed.
Similarly, in Da Silva and Da Silva Constructions Pty Ltd v Bresond Pty Ltd [2008] NSWSC 158, Smart J held that the CTTT was not a court for the purposes of the Corporations Act 2001 (Cth).
Transfer to a Court
NCAT has power to transfer a matter to a Court: Civil and Administrative Tribunal Act (NSW) 2013 Schedule 4 clause 6 (Transfer of proceedings to courts or to other tribunals).
The NSW Local Court has jurisdiction under the Admiralty Act s9 to determine the dispute.
Conclusion
NCAT does not have jurisdiction to determine a "Maritime Claim" and the applicant's claim should be transferred to the NSW Local Court which is the appropriate Court.
(signed)
J Levingston
General Member
Civil and Administrative Tribunal of New South Wales
6 May 2014
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
**********
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: 31 July 2014
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