Therese Jenner v Kanga Birtles

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 185

Category:

Principal judgment

Parties:

Therese Jenner (applicant)
Kanga Birtles (respondent)

File Number(s):

GEN 14/18884

reasons for decision

APPLICATION

1. 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.

1. 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

1. Both parties appeared and after some negotiations between them their dispute remained unresolved.

Jurisdiction

1. 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.

1. 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

1. "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) ...

1. A "ship"…