Zarew & Johnson v Australia Post (Civil Disputes)
[2009] ACAT 19
•7 July 2009
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ZAREW & JOHNSON v AUSTRALIA POST (Civil Disputes) [2009] ACAT 19
XD 82665 of 2008
Catchwords: AUSTRALIA POST – Items lost in the mail – immunity from suit – ss 7(b) & 54 of the ACT Civil and Administrative Tribunal Act 2008 – hearings on the papers – procedural fairness
Australian Constitution, ss 72, 112
Australian Postal Corporation Act 1989 (Cth), ss 32, 34
Postal Services Act 1975 (Cth), s104
ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 6, 7, 8, 10, 23, 26, 48, 54
Astley v Austrust Ltd [1999] HCA 6
Bradley v Commonwealth (1973) 128 CLR 447
Kalaba v Commonwealth [2004] FCAFC 326
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Koma v Consumer Trader and Tenancy Tribunal [2007] NSWSC 110
Laser Soncis Pty Ltd v Prynew Pty Ltd [2005] NSWSC 937
Parrett v Secretary Department of Family and Community Services (2002) 124 FCR 299
R v Governor Goulburn Correctional Centre: Exparte Eastman (1999) 200 CLR 322
R v Young (1999) 46 NSWLR 681
Suatu v Australian Postal Corporation (1989) 86 ALR 532
Webster v McIntosh (1980) 32 ALR 603
Wurridjal v The Commonwealth of Australia [2009] HCA 2
Pearce, D.C. & Geddes, R.S. (2006) Statutory Interpretation in Australia: 6th Edition, LexisNexis Butterworths, Chatswood, NSW
The Judicial Power of the Commonwealth (2001) Report 92 ALRC
Tribunal:Allan Anforth, Senior Member
Date: 7 July 2009
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 82665 of 2008
MICHAEL ZAREW & NATALIE JOHNSON
Applicant
v
AUSTRALIA POST
Respondent
Tribunal: Mr A. Anforth
Date: 7 July 2009
ORDER
- The Respondent is to pay the Applicant the sum of $603.36 within 28 days.
- This sum is composed of $495.00 for the cost of the bag, $65.60 for postage paid, $43.00 lodgement fee in the Tribunal minus credit for the $63.75 already paid by Australia Post.
……………………………
Mr A. Anforth
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 82665 of 2008
MICHAEL ZAREW & NATALIE JOHNSON
Applicant
v
AUSTRALIA POST
Respondent
REASONS FOR DECISION
This case concerns a claim by the Applicants against Australia Post for the value of an expensive Oroton briefcase which has gone missing after being sent by the Applicants via ordinary parcel post to Perth. There is no dispute that the bag was delivered into the possession of Australia Post at Deakin in the ACT. The case concerns the extent of Australia Post’s immunity from suit for articles lost whilst in the custody of Australia Post.
On 28 November 2008 the Applicants filed a claim in the Small Claims Court of the ACT against Australia Post. The grounds of the application read:
On 20 May 2008 the applicant purchased an Oroton Ebony Brieftote as a birthday present for her sister. On 21 May 2008 the applicant’s representative took the bag to Deakin Post Office to post the article to Perth. Discussions were had about registered post or ordinary post as the bag was too big for an express post envelope. The decision was made to send the bag via ordinary post as the recipient would be unable to attend her local post office during business hours. The bag never arrived in Perth.
The claim as filed nominated the value of the bag at $495.00 plus the further sum of $43.00 being the lodgement fee in the Small Claims Court.
On 28 December 2008 Australia Post filed its Response which read:
Australia Post provides a variety of services throughout Australia. The features, purchasing cost and the amount of compensation payable in the event of a missing postal item varies according to the service selected/used by the customer.
In this case the sender used the ordinary postal service. Therefore the sender didn't enter into any special agreement with Australia Post, such as using Registered Post service.
Postal services are regulated by the Australia Post Terms and Conditions (Ts& Cs). These Ts & Cs are made pursuant to Section 32(1)(b) of the Australian Postal Corporation Act 1989 (Please see Attachment 1).
Accordingly, where Australia Post has not entered into a specific agreement for the provision of a particular service the terms and conditions determined by the Board will be applicable to the supply of the service.
Application of the Terms & Conditions to the current matter (Clause 68)
68.1This part applies where Australia Post and a person have not entered into any other agreement in relation to liability for loss or damage, and except as provided in this part and subject to clause 71, Australia Post is not liable for:
68.1.2misdelivery including delivery otherwise than to the addressee, delayed delivery, early delivery or failure to deliver;
(Please see Attachment 2).
Amount of Compensation payable in this matter (Clause 73)
73.1Notwithstanding clauses 68 and 69, where an article has been lost or damaged in the course of carriage otherwise than by registered post, Australia Post may in its absolute discretion elect to replace or repair the article or pay to the claimant an amount equal to:
73.1.1 the replacement value of the article;
73.1.2 the cost of repair of the article; or
73.1.3 up to the sum of $A50,
WHICHEVER IS THE LESSER, together with a refund of postage paid on the carriage of the article.
(Please see Attachment 3).
Australia Post has paid $63.75 ($50.00 + postage $13.75) to the sender, and this sum has been accepted by the sender.
Therefore Australia Post is disputing Applicant's claim of $1,188.00
The sender of the article in question was Mrs Natalie Johnson of PO Box 9085, Deakin ACT 2600. The applicant in these proceedings was not the sender of the article.
On 1 February 2009 the Small Claims Court ceased to exist and its jurisdiction was transferred to the ACT Civil and Administrative Tribunal (the Tribunal). The matter continued in the Tribunal.
The matter was listed for conference before the Tribunal on 10 March 2009. The matter did not settle at the conference and was subsequently listed for hearing before the Tribunal on 16 April 2009.
On 16 April 2009 the Applicants appeared in person and Mr Raj Pavarajah, Consumer Services Manager, appeared for the Respondent.
At the hearing the male Applicant gave evidence concerning the discussions at the Deakin Post Office between their agent and an officer of Australia Post and the basis of the decision made to send the bag by ordinary parcel post and not by registered post. The Applicants said that their agent had not actually been presented with a copy of Australia Posts’ “Terms and Conditions” at Deakin Post Office. Mr Pavarajah did not suggest that the Applicants’ agent was ever presented with the “Terms and Conditions”. The Applicants tendered a copy of the receipt for the bag in the sum of $495.00 and the receipt for postage of $65.60 at Deakin Post Office on 21 May 2008
After hearing the parties the Tribunal express concern about the content of the “Terms and Conditions” imposed by the Respondent on users of postal services and made the following orders:
1. The Tribunal has expressed concerns that Term 73 of the "Terms & Condition", made by the Board of Australian Post pursuant to Section 32 (1)(b) Australian Postal Corporation Act 1989, in respect to ordinary post, may be ultra vires, in that it exceeds the power conferred on the Board by Section 32 (1)(b).
2. In particular, the Tribunal is concerned that Section 32 of the Act, does not, on its face, extend so far as to permit the Board of Australia Post to grant:-
(a)immunity from suit in the respect of actions in contract or tort for the loss or theft of items of post whilst in the custody of Australia Post; or
(b)an arbitrary cap on damages for any such losses or theft.
3. The Respondent is to file and serve by 14/05/09, any submissions on the above issues.
4. The Applicant is to file and serve by 28/05/09, any submissions on the above issues.
5. Once the submissions are received, the Tribunal will deliver a decision in writing.
10. On 14 May 2009 Australia Post filed its submissions which read:
1. The Respondent is a Statutory Corporation and is constituted pursuant to the Australian Postal Corporation Act 1989 (Cwth) (the Act).
2. Part 4 of the Act deals with the Respondent's operations, and provides for the determination by Australia Post of its Terms and Conditions pursuant to which its services are supplied.
3. The Terms and Conditions determined by the Board have existed since 1989, and have been amended from time to time.
4. In relation to Para. 2(a) of the Tribunal's Order of 16 April 2009, the Respondent submits that the immunity from suit in relation to the carriage of letters or other articles by Australia Post is contained in S.34, of the Act, which provides as follows:
Immunity from certain actions
(1) An action or proceeding does not lie against Australia Post or any other person in relation to any loss or damage suffered, or that may be suffered, by a person because of any act or omission (whether negligent or otherwise) by or on behalf of Australia Post in relation to the carriage of a letter or other article by means of the letter service.
(2) Subsection (1) does not apply if Australia Post provides the sender with a receipt for the article.
"letter" is defined in S.3 of the Act as any form of written communication that is directed to a particular person or address.
"article" is defined in S.3 as including ..."an envelope, packet, parcel, container or wrapper containing any matter or thing....".
It is submitted that the article in question in these proceedings was travelling by ordinary post, via the letter service. It is noted that the Applicant, in the Application dated 26.November 2008, states that the bag was sent by "ordinary post”. The Sales Docket provided to the sender contained the Statement "Use Registered Post if extra cover against loss or damage is required." Had the sender opted to use the Registered Post service, a Receipt would have been provided, and S.34 would not have applied
In her second reading speech when the Bill was passing through the Commonwealth Parliament, the Minister, Mrs. R. Kelly, said in respect of S.34: "Obviously some degree of immunity is reserved - for the Government Business Enterprises and the reserved services - otherwise they would be open to heavy damages because of a minor fault. For example, there could be massive claims for damages because uninsured valuables are lost in the post or because a technical breakdown means that a business deal did not go through. What would that cost Telecom or Australia Post?"
The statutory immunity set out in S.34 of the Act was considered in the Federal Court Decision of Kalaba-v- Commonwealth and Australia Postal Corporation (2004) FCA 763, where it was held that S.34 of the Act could be relied upon by Australia Post to avoid liability where damages are claimed arising out of the provision of the letter service.
Notwithstanding the statutory immunity contained in S.34 of the Act, Australia Post has, pursuant to the Terms & Conditions made under S.32 of the Act, determined a regime for the payment of compensation in certain circumstances.
It seems clear that the Commonwealth intended, because of the breadth of wording in S.32, that Australia Post should have some measure of protection from claims by use of the Terms and Conditions. This intention is illustrated by the three levels of service that are available to a sender of an article, and contained in the Terms & Conditions:
(a)"Ordinary" service.
a) There is no specific agreement between the sender and Australia Post
b) No additional charges except postage
c) Only sales docket given by Australia Post
d) No receipt given by Australia Post
e) Compensation up to $50.00
(b)"Registered Post" service.
a) here is a specific agreement between the sender and Australia Post (see attached sample Application)
b) Extra charge payable in addition to postage
c) Sales docket given by Australia Post
d) Receipt given by Australia Post with details of sender, addressee, contents description and contents value.
e) Compensation up to $100.00, if extra cover is not paid for.
(c)"Extra Cover" service.
a) There is a specific agreement between the sender and Australia Post
b) Extra charge payable in addition to postage
c) Sales docket given by Australia Post
d) Receipt given by Australia Post with details of sender, addressee, contents description, contents value and amount of extra cover purchased.
e) Compensation up to $5,000.00 depending on level of cover paid for.
5. S.32 of the Act is in very broad terms, and gives the Respondent the power to determine the "terms and conditions of a service supplied by Australia Post"...
S.32(1)(a) of the Act permits the Respondent and an individual to agree upon terms and conditions for the supply of a service.
S.32(1)(b) of the Act provides that, so far as Australia Post and the person do not agree on terms and conditions for the supply of a service, the terms and conditions determined by the Board that are applicable to the supply of its services shall apply.
S.32(2) provides that the Board may determine terms and conditions with respect to specific matters, as set out in that section. Importantly, S.32(2) specifically provides that it is not intended to limit the power of the Board to determine terms and conditions pursuant to S.32(1)(a) or (b). The Section commences with ..."Without limiting subsection (1), the terms and conditions"..etc.
In a decision of Rolled Steel Products (Holdings) Ltd-v-British Steel Corporation (1985) 2 All ER 52 at 91, CA, per Browne-Wilkinson LJ, it was held that...."the use of the phrase "ultra vires" should be restricted to those cases where the transaction is beyond the capacity of the company and therefore wholly void". S. 32(2) of the Act does not purport to impose any limitation upon Australia Post to determine a condition to limit its liability for loss of, or damage to, an article.
It is submitted, therefore, that the wording of S.32 in effect gives the Board the power to determine whatever terms and conditions it deems appropriate to determine in respect of any service that the Respondent supplies. On an ordinary interpretation of the wording in S.32(2) of the Act. the power of the Board to determine terms and conditions, in particular Clauses 68 and 73 of the Terms & Conditions, cannot be construed as being beyond Australia Post's legitimate powers as defined by the Act.
11. On 1 June 2009 the Applicants filed their submissions prepared on their behalf by Mr O’Donnell of counsel which read:
Introduction
1. This matter is an application for damages relating to a lost parcel. The First Applicant used the services of the Respondent ("Australia Post") to send a relatively expensive briefcase to the Second Applicant as a gift. The briefcase never arrived and Australia Post appears to admit that the parcel was lost while in its custody. However Australia Post submits that its liability is either:
(1) excluded entirely by s 34 of the Australian Postal Corporation Act 1989 (Cth) ("the Postal Act"); or
(2) limited to $50 by clause 73 of the "Australia Post Terms and Conditions" ("the Terms and Conditions Instrument") purportedly made pursuant to s 32(1)(b) of the Postal Act.
2. On 16 April 2009, Senior Member Anforth made the following orders:
[See para 9 above]
3. Australia Post filed submissions on 14 May 2009. Through the offices of the Public Interest Law Clearing House, present counsel appears for the Applicants on a pro bono basis to provide these submissions in compliance with the order quoted above. The Court has kindly granted the Applicant to file these submissions two business days late.
Section 34 of the Postal Act does not apply because Australia Post gave the First Applicant a receipt
4. In its written submissions, Australia Post argues that s34 of the Postal Act excludes its liability to the Applicants. Section 34 provides:
Immunity from certain actions
(1) An action or proceeding does not lie against Australia Post or any other person in relation to any loss or damage suffered, or that may be suffered, by a person because of any act or omission (whether negligent or otherwise) by or on behalf of Australia Post in relation to the carriage of a letter or other article by means of the letter service.
(2) Subsection (1) does not apply if Australia Post provides the sender with a receipt for the article.
5. The word "receipt" is not defined in the Postal Act. It should thus be given its ordinary and natural meaning: see DC Pearce and R Geddes, Statutory Interpretation in Australia (6th ed. LexisNexis, Australia, 2006) at 43-44 [2.20] and the authorities collected there. The Macquarie Dictionary (revised 3rd ed, Macquarie, 2005) defines a receipt as "a written acknowledgment of having received money, goods, etc, specified": see generally The Educational Experience P/L v Hermes Precisa P/L (unreported, NSW Supreme Court (Commercial Division), 20 February 1997, Hunter J).1 It should also be noted that it had been held that the predecessor to s 34 (s 104(1) of the Postal Services Act 1975 (Cth)) is to be strictly construed against the post office: Suatu Holdings Ptv Ltd v Australian Postal Corporation (1989) 86 ALR 532 (FCA. Gummow J).
6. The evidence was that Australia Post did provide the First Applicant with a document describing the weight of the parcel, the postcode of its destination and the price charged by Australia Post and paid by the First Applicant. The document was in a form apparently generated by a computerised till or EFTPOS machine, which the ordinary person in Australia would naturally identify as a "receipt". In its written submissions Australia Post argues that this document was a "sales docket" and not a receipt for the purposes of s 34(2). There is no basis in the Postal Act or in the ordinary and natural meaning of the words "receipt" or "docket" for such a hair-splitting distinction.2
Clause 73 of the Terms and Conditions Instrument is legally ineffective because it goes beyond the power given by s 32(1)(b) of the Postal Act
7. The written submissions filed by Australia Post appear to misunderstand what it means to say that an instrument made under and given legal effect by Act of Parliament is ultra vires. Courts have always had the power to determine whether such an instrument has been made within the power granted by the parent Act and, if it has not. to declare that it (or a part of it) is "invalid" and of no legal effect: see generally D Pearce and S Argument, Delegated Legislation in Australia (3rd ed, LexisNexis Butterworths. Australia, 2005) at chapter 12, especially 112 [12.2] and 113-4 [12.5] (see also at 321 [26.1] regarding the Court's jurisdiction in matters of so-called "collateral attack").
8. The Terms and Conditions Instrument purports to have been made under s 32(1)(b) of the Postal Act: see the preamble to the Terms and Conditions Instrument.3 Section 32 of the Postal Act provides:
Terms and conditions generally
(1)Subject to any express provision of this or any other Act, the terms and conditions of a service supplied by Australia Post for a person are:
(a) so far as Australia Post and the person agree on terms and conditions for the supply of the service—the agreed terms and conditions; and
(b) so far as Australia Post and the person do not agree on terms and conditions -the terms and conditions determined by the Board that are applicable to the supply of the service.
(2)Without limiting subsection (1), the terms and conditions determined by the Board may make provision with respect to:
(a) the kinds of articles that may be carried by post and the means by which different kinds of articles may be carried; and
(b) the carriage of letters and other postal articles; and
(c) rates of postage; and
(d) the payment of postage, including the issue and sale of postage stamps, the pre-stamping of postal articles and the use of franking machines; and
(e) the carriage of letters to or from an office of Australia Post; and
(f) undelivered letters and other articles (including the forfeiture and destruction of such articles).
(3)The Board shall ensure that copies of a determination made by it under this section are made available for inspection and purchase at all offices of Australia Post as soon as practicable after it is made.
(4)A contravention of subsection (3) in relation to a determination does not affect the validity of the determination.
(5)This section has effect subject to section 33 of this Act and to Part V1IA of the Trade Practices Act 1974.
"Board" is defined by s 3 as the Board of Directors of Australia Post, being the body established by Pt 2 of the Postal Act.
9. The list of matters in sub-s (2) to which the Terms and Conditions may relate is expressed to be inclusive and to not limit the power in s 32(1)(b). However, those matters are capable of giving an insight into the scope of the genus of matters Parliament intended the Terms and Conditions might cover: see generally the discussion of the ejusdem generis presumption of statutory interpretation in Pearce and Geddes (above) at 133[4.21]-138[4.26] and the authorities collected there. It is notable that none of the topics listed in sub-s (2) relate to Australia Post's liability in the event it loses a postal item.4 This tends to indicate that limitations on Australia Post's liabilities was not part of the general terms and conditions that it was empowered to impose under s 32(1)(b).
10. Moreover the issue of liability is dealt with explicitly in s 34 (quoted above). A delegated instrument will be legally ineffective to the extent that it is repugnant to or inconsistent with its parent Act: Morton v The Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402; R v Commissioner of Patents; Exparte Martin (1953) 89 CLR 381; Pearce and Argument (above) at 223 [19.10]. As the writers Pearce and Argument, the leading text on delegated legislation, put it at 235 [19.24]:
[W]her it would appear from the terms, the nature or the subject matter of an Act that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then, for delegated legislation to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Act, and thus inconsistent.
11. The issue of Australia Post's liability for loss or damage is comprehensively regulated by s 34. That issue is thus outside the power granted by s 32(l)(b) for the Board to further regulate its liability in the Terms and Conditions Instrument. Clause 73 of the Terms and Conditions Instrument is thus invalid and legally ineffective.
Conclusion
12. Australia Post's liability for loss or damage is not excluded by s 34 because Australia Post gave the First Applicant a receipt. Clause 73 of the Terms and Conditions Instrument is also invalid and legally ineffective to the extent that it attempts to limit Australia Posts liabilities. Thus, contrary to Australia Post's written submissions, neither provision poses a barriers to the Applicant's recovering damages in this case.
Findings of fact:
12. The Tribunal found Mr Zarew to be a creditable witness whose evidence it accepted.
13. The Applicants, via their agent, attended Deakin Post Office. The agent spoke with an officer at the Post Office concerning the merits of various modes of post and ultimately posted the bag by ordinary parcel post. The Applicants were issued with a document by Australia Post which acknowledged receipt of the postage. At no point were the “Terms and Conditions” of postage ever brought to the agents attention.
14. Australia Post has conceded that the bag was delivered into its possession and has not sought to argue that it was ever delivered to the intended recipient in Perth. The Tribunal finds as a fact that the bag went missing whilst in the custody of Australia Post and is either sitting in some unidentified storage facility of Australia Post or has been stolen by a person who had access to the Australia Post premises.
Causes of action:
15. The Applicants’ cause of action against Australia Post are in:
(a) contract;
(b) tort
(c)breach of statutory duty
16. It is the Applicants’ case that Australia Post had a contract with the Applicants to deliver the bag and has not honoured that contract. But for any immunity from suit or specific contractual defence on the part of Australia Post, the contract has been breached by Australia Post irrespective of the alternatives set out in paragraph 14 above.
17. The Applicants further contended that Australia Post owed them a duty of care in tort as a bailee of the bag whilst it was in the custody of Australia Post.
18. The contractual and tortious duties are separate and independent causes of action (Astley v Austrust Ltd [1999] HCA 6 at [44-48]) although in the present case the measure of damages in each cause of action is not materially different.
19. The third cause of action was not directly raised by the Applicants but arises from the cases cited by the parties in their submissions. In Bradley v Commonwealth (1973) 128 CLR 447 the High Court held unanimously that Australia Post (or its predecessor) may not refuse or withdraw postal services from citizens under the Post and Telegraph Act 1901-1971 (Cth) and that any such action on the part of Australia Post is an actionable breach of statutory duty on the part of Australia Post.
20. Australia Post contends that it has a general immunity from suit in relation to the non-delivery of the bag such that all causes of action must fail. In the alternative Australia Post relies upon its “Terms and Conditions” to limit its liability in the manner set out in clauses 68-73 of those “Terms and Conditions”.
General immunity from suit:
21. Australia Post has no general immunity from suit in contract, tort or for breach of statutory duty arising only from its government status. Any immunity it may have must be found in a Commonwealth statute.
22. Australia Post relies upon section 34 of the Australian Postal Corporation Act 1989 (Cth) (‘the Act’) to claim a general immunity from suit. Section 34 reads:
Immunity from certain actions
(1)An action or proceeding does not lie against Australia Post or any other person in relation to any loss or damage suffered, or that may be suffered, by a person because of any act or omission (whether negligent or otherwise) by or on behalf of Australia Post in relation to the carriage of a letter or other article by means of the letter service.
(2)Subsection (1) does not apply if Australia Post provides the sender with a receipt for the article.
[Emphasis added]
23. Section 34 is an ordinary statute to be construed according to the precepts of statutory interpretation not the least of which is the principle that exclusion clauses of this kind should be read narrowly (Suatu v Australian Postal Corporation (1989) 86 ALR 532).
24. The Tribunal entirely agrees with the submissions of Mr O’Donnell concerning the construction and operation of section 34. The Tribunal accepts the argument that the “receipt” referred to in section 34(2) takes no special meaning in the Act and that the receipt issued to the Applicants at Deakin Post Office in the present case is capable of satisfying the requirements of section 34(2). In this event the immunity from suit contained in section 34(1) has no operation.
25. The Tribunal notes the contention from Australia Post that the reference to “receipt” is intended to connote one of the special modes of post such as registered or certified mail. Even if that were the intention of the framers of the section 34(2) this intention has not found its way into the section. It would have been an easy matter for the drafter of the section to have included a definition of the otherwise ordinary term “receipt” that could have limited its operation to the special modes of post.
26. Australia Post now ask the Tribunal to read into section 34(2) a definition that does not appear in that section or in the Act generally.
27. The power to read words into a statute in order to give effect to the presumed intention of Parliament is a very circumscribed one (Statutory Interpretation in Australia 6th ed Pearce and Geddes at [2.38]-[2.33]). In Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 McHugh J set out the criteria that must be satisfied before words are implied into a statute. They are:
a. The court must known the mischief which the Act was dealing
b. The court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved.
c. The court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.
28. In R v Young (1999) 46 NSWLR 681 the NSW Court of Appeal added the further rider that the words to be implied must be ascertainable from the text of the statute itself. See Parrett v Secretary Department of Family and Community Services (2002) 124 FCR 299 for an example of the application of the above.
29. In the present case the Tribunal is not satisfied that any of the tests in Kingston are satisfied let alone all of them.
30. The Tribunal notes the appeal by Australia Post to its “Terms and Conditions” and the various modes of post set out therein in support of its proposed construction of section 34(2). However the “Terms and Conditions” are themselves a subordinate instrument that cannot govern the interpretation of the parent Act. In interpreting a provision of an Act it is not permissible to take into account the terms of any delegated legislation (See: Pearce and Geddes at [3.41]). It is generally not permissible to read down the provision of an Act to accommodate the provisions of a subordinate instrument (Webster v McIntosh (1980) 32 ALR 603 at 605).
31. The decision of the Full Federal Court in Kalaba v Commonwealth [2004] FCAFC 326 is distinguishable for the reasons advanced by Mr O’Donnell, namely there was no suggestion in that case that a “receipt” had issued such as to enliven section 34(2).
32. The decision of Gummow J in Suatu is the case closest in point to the present. In that case the Plaintiff attended a Post Office and negotiated with the staff to Australia Post to deliver brochures to each mail box in various nominated areas. The brochures were not delivered and the Plaintiff suffered loss.
33. At the time section 104 Postal Services Act 1975 was in force and relevantly provided:
Proceedings do not lie …in respect of any loss or damage suffered by reason of any default, delay, error, omission or loss in the receipt, transmission or delivery of postal articles…
34. This provision is very similar to present section 34 and for present purposes is taken to be materially indistinguishable.
35. Gummow J held that a contract had come into existence between Australia Post and the Plaintiff and that section 104 only created an immunity from suit in tort and other statutory causes of action but did not create any immunity in respect of a contract specifically entered by a citizen with Australia Post.
36. The Tribunal finds that section 34(2) applies by reason of the issue of the “receipt” to the Applicants and therefore section 34(1) has no application. In the circumstances of this case Australia Post has no general immunity from suit under section 34 of the Act.
Cause of action in contract:
37. In Suatu Gummow J held that the mere act of posting a letter did not of itself give rise to a contract with Australia Post but that it was open to citizens to negotiate with Australia Post and thereby give rise to a contract enforceable at law. On the facts of Suatu his honour held that a contract had come into existence.
38. In coming to this finding in relation to the existence of a contract between the parties Gummow J relied upon the decision of Stephen J in Bradley v Commonwealth (1973) 128 CLR 557. In Bradley Barwick CJ and Gibbs J formed the majority on the contractual issue (Menzies and McTiernan JJ did not address the issue). All their honours had to say on the contractual issue was as follows (at 575):
Finally, counsel for the defendants referred us to Triefus & Co. Ltd. v. Post Office (1957) 2 QB 352 , where it was held, in conformity with earlier authority, that no contract existed between the Post Office (in the United Kingdom) and a person who entrusted it with a letter or packet for transmission through the post. That decision is of no relevance in the present case where the claim of the plaintiff is not that the Postmaster-General has broken a contract but that he has exceeded his statutory powers.
39. Stephen J found a breach of statutory duty on the part of Australia Post and his only comments on the issue of contract were as follows (at 589):
These, then, were English cases, never since departed from, in which a member of the public was held entitled to recover damages against a deputy postmaster, not for breach of contract or as a common carrier but for his default in compliance with what was held to be a duty imposed upon him by statute to deliver letters addressed to the plaintiff.
40. It is difficult to see how Gummow J derived the support claimed from Bradley for the blanket proposition that no contract arises from the act of entrusting mail to Australia Post.
41. When the Applicants’ agent attended Deakin Post Office they were not presented with a copy of Australia Posts “Terms and Conditions” and therefore did not specifically agree to those terms. The agent had discussion with an officer at the Post Officer and was guided by the advice of that officer on the best mode of postage.
42. Because the “Terms and Conditions” were never brought to the attention of the Applicants’ agent they can not form part of the contract between Australia Post and the Applicants unless those “Terms and Conditions” were imported into the contract by force of law, i.e. via section 32 of the Act, which reads:
Terms and conditions generally
(1) Subject to any express provision of this or any other Act, the terms and conditions of a service supplied by Australia Post for a person are:
(a)so far as Australia Post and the person agree on terms and conditions for the supply of the service—the agreed terms and conditions; and
(b)so far as Australia Post and the person do not agree on terms and conditions -the terms and conditions determined by the Board that are applicable to the supply of the service.
(2) Without limiting subsection (1), the terms and conditions determined by the Board may make provision with respect to:
(a)the kinds of articles that may be carried by post and the means by which different kinds of articles may be carried; and
(b)the carriage of letters and other postal articles; and
(c)rates of postage; and
(d)the payment of postage, including the issue and sale of postage stamps, the pre-stamping of postal articles and the use of franking machines; and
(e)the carriage of letters to or from an office of Australia Post; and
(f)undelivered letters and other articles (including the forfeiture and destruction of such articles).
43. The Australia Post “Terms and Conditions” is a species of delegate legislation made pursuant to the power vested in the Board of Australia Post under section 32(1)(b) of the Act. Clauses 67,68,69 and 73 of the “Terms and Conditions” purport to provide Australia Post with a second source of immunity from suit and to provide an ex-gratia system of payments capped at $50 per lost item of post.
44. There is absolutely nothing in section 32(1) or (2) that suggests that the power to make Terms and Conditions could extend this far. Indeed the whole issue of immunity from suit is dealt with in section 34 of the Act such that it would not be expected to find a second and independent source of immunity from suit in a subordinate instrument.
45. The power to make a subordinate instrument does not carry with power to include any terms the author of the instrument might desire. Issues of proportion and fair basis in the enabling Act must be respected.
46. The Tribunal entirely agrees with the submissions of Mr O’Donnell to the effect that the purported immunity from suit and arbitrary capping of liability that Australia Post has accorded itself under the “Terms and Conditions” are ultra vires the power in section 32(1)(b).
47. The Tribunal finds that Australia Post has no operative general immunity from suit pursuant to section 34 and has no specific contractual defence arising from clauses 67,68,69 and 73 of the Terms and Conditions. Australia Post is accordingly in breach of its contract with the Applicants.
Action in tort:
48. Even if no contract were found to have come into existence between the Applicants and Australia Post there would still be the cause of action in tort. Because section 34(1) has no application, Australia Post has no immunity from this cause of action and for the reasons given above nor do the purported immunities in the “Terms and Conditions” apply. The High Court decision in Astley would appear to suggest that the causes of action in contract and tort are entirely separate and Australia Posts’ liability in tort should be assessed without reference to specific contractual defences.
49. Australian Post is in breach of its duties arising from the bailment and is therefore liable in tort.
Action for breach of statutory duty:
50. This cause of action derives from the obligations duties and imposed on Australia Post under sections 16,17 25-28 of the Act. In Bradley the High Court upheld this cause of action against Australia Post on the part of a party to whom postal services were denied. After close examination of the history of postal services in the UK, other common law countries and Australia, the court unanimously held that Australia Post owed a duty to all citizens to carry and deliver their mail. Bradley concerned a deliberate refusal by Australia Post to carry mail to the Rhodesian Embassy, differing in facts from the case at hand. However, in the course of the judgement Stephen J identified earlier UK authorities that did find liability for breach of statutory duty for the negligent transmission of items entrusted to the postal service (at 593):
In the joint judgment of the Chief Justice and Gibbs J. a close scrutiny is made of the legislation and it is unnecessary for me to do more than express my agreement with what is there said and with the conclusion expressed that there are clear indications in the legislation that properly addressed and stamped letters received for transmission and delivery must be duly transmitted and delivered except in those cases for which express provision to the contrary is made, that no unfettered and general power reposes in the Postmaster-General to direct that postal facilities may be denied to an individual and that, in the circumstances of this case, no power existed whereby either delivery of mail addressed to the plaintiff or the receipt from him and transmission of mail which he desired to be transmitted through the post could be denied to him.
…
These two cases, on legislation not in its general character very different from the present Commonwealth Act, lend some support to the view that for breach of a statutory duty imposed by postal legislation, such as a failure to deliver, an action will lie at the suit of the individual affected by the breach. They are in that respect consistent with the decisions in other jurisdictions to which I have referred.
[Emphasis added]
51. This cause of action is independent of the causes of action in contract and tort and absent any effective immunity from suit provided by section 34 of the Act, Australia Post has committed an actionable breach of statutory duty.
The power of the Tribunal to find the Terms and Conditions ultra vires:
52. Part of the above conclusions by the Tribunal are premised on the finding that clauses 67, 68, 69 and 73 of the “Terms and Conditions” are ultra vires and therefore of no effect. This raises the issue of whether the Tribunal has the power to find a delegated instrument to be ultra vires or whether the Tribunal is bound to proceed on the basis that the delegated instrument is valid.
53. If the Tribunal is exercising judicial power then there is no dispute concerning the existence of the Tribunal’s power to make such a finding. If however the Tribunal is only exercising administrative power then other considerations arise.
54. This Tribunal is a creature of the ACT Legislature and therefore derives its Constitutional existence from section 122 of the Australian Constitution. There has been a judicial debate over the years as to whether legislation enacted pursuant to section 122, whether by the federal or territory legislatures, is subject to the separation of powers doctrine that limits the conferral of federal judicial power on Commonwealth and State bodies (The Judicial Power of the Commonwealth Report 92 ALRC at Part H, 2001). In so far as this Tribunal does not satisfy the requirement of section 72 of the Constitution it is not a Chapter III court under the Constitution, and so the answer to the above question determines whether this Tribunal is exercising judicial or administrative power.
55. In R v Governor Goulburn Correctional Centre: Ex parte Eastman (1999) 200 CLR 322 a majority of the High Court held that territory courts could exercise federal judicial power without satisfying the requirements of section 72 of the Constitution.
56. In Wurridjal v The Commonwealth of Australia [2009] HCA 2, though not directly addressing or deciding the point, it seems the presently constituted High Court favoured the view that the legislation enacted in reliance upon section 122 is subject to the wider Constitutional limitations and therefore may not follow Eastman in the future. If this were to occur then this Tribunal could then only be characterised as an administrative tribunal in the same manner as the Commonwealth Administrative Appeals Tribunal.
57. The reality is that the Tribunal has taken over the judicial functions of the Magistrates Court to determine inter partes civil disputes by rendering binding and enforceable decisions. This function is inherently a judicial one. It must be assumed that the ACT Legislative Assembly has considered and satisfied itself that it is constitutionally permissible to vest these powers in the Tribunal and for present purposes the Tribunal adopts that position.
58. However, the Tribunal is of view that even if its status were only that of an administrative tribunal it would still be required to satisfy itself as to the validity of any delegated instrument created by one of the parties to the dispute as part of its role of doing justice between the parties. Any ruling by the Tribunal in such circumstances would not have application beyond the immediate dispute and would not form any judicial pronouncement operating in rem.
In determining a matter on the papers pursuant to section 54 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) does the Tribunal have the power to consider a cause of action that arises in the proceedings but is not expressly adverted to in the application filed by the Applicants or raised at the hearing.
59. The application as filed and the submissions of the parties did not expressly raise the cause of action arising from breach of statutory duty. But the application as filed did not in fact identify any cause of action at all, it merely articulated the basic facts and a claim for reimbursement of the cost of the bag and associated costs. The Response by Australia Post of 28 December 2008 equally did not identify any particular causes of action to which it was responding and was content to rely upon the statutory immunity from any suit said to arise under the “Terms and Conditions”. The Response by Australia Post did not address the statutory immunity said to arise under section 34.
60. It was not until the hearing that the causes of action were discussed with the parties and crystallised into the actions in contract and tort. Even then the Tribunal and the parties failed to discern the potential cause in action for breach of statutory duty. The Tribunal’s awareness of the relevance of the cause of action for breach of statutory duty only arose out of a reading of the submissions of the parties and the authorities referred to in those submissions.
61. In was agreed between the parties at the hearing that submissions on the law would be filed by both parties after which the Tribunal would determine the matter on the papers.
62. This raises the procedural fairness issue in relation to the cause of action for breach of statutory duty, of whether the Tribunal should now :
(a)disregard this cause of action:
(b)reconvene the hearing and invite submissions
(c)proceed to deal with the matter on the papers as agreed between the parties at the hearing having regard to all three causes of action.
(s7(b) ACT Civil and Administrative Tribunal Act 2008 (ACT)(the ACAT Act)).
63. If the present proceedings were before a court, or tribunal that conducts its affairs in a manner indistinguishable from courts (eg the Commonwealth Administrative Appeals Tribunal), then option (b) would be the proper course of action. In such contexts it would be a denial of procedural fairness to entertain a cause of action or some principle of law that had not been the subject of submissions. Indeed in Laser Soncis Pty Ltd v Prynew Pty Ltd [2005] NSWSC 937 the NSW Supreme Court held the Consumer Trader and Tenancy Tribunal in NSW to have fallen into error of law in considering a submission on a point of law raised for the first time by a party in their closing submissions before the Tribunal. In the present case the cause of action for breach of statutory duty was not raised at the hearing at all.
64. If the parties before this Tribunal were each represented by legal practitioners then option (b) would probably still be the proper course of action. But the parties to these proceedings were unrepresented and as is the case in most of the Tribunal civil dispute proceedings. The issue of procedural fairness needs to be addressed with that fact in mind. It is an unescapable reality that a court or tribunal cannot expect from unrepresented parties the same knowledge of substantive or procedural law that may be exhibited by experienced lawyers. Procedural fairness is an inherently flexible concept which involves considerations of fairness, simplicity of process, time, expensive, proportionality and practicality.
65. In order to determine the appropriate course of action in the present instance recourse must be had to the statutory scheme under which the Tribunal operates. The “objects” of the Tribunal are set out in section 6 of the ACAT Act which includes:
…
(b) to ensure that access to the tribunal is simple and inexpensive, for all people who need to deal with the tribunal; and
(c) to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice; and
(d) to ensure that decisions of the tribunal are fair;
…
66. Section 7 provides that the Tribunal must:
(a) ensure the procedures of the tribunal are as simple, quick, inexpensive and informal as is consistent with achieving justice; and
(b) observe natural justice and procedural fairness.
67. Section 8 provides that the rules of evidence do not apply.
68. Section 10 defines the required content of an application to the Tribunal and relevantly only requires that the applicant “state the reasons for making the application”. It is important to note that an applicant is not required to plead a cause of action in the same manner as would be required in a court of law. This is entirely appropriate for the civil dispute resolving role of the Tribunal with unrepresented parties for sums of $10,000 or less (section 18). The facts stated in the application and the remedy sought are consistent with a claim in contract, tort or breach of statutory duty albeit no specific cause of action was nominated in the application.
69. Section 23 provides that the Tribunal may determine its own procedure in particular matters.
70. Section 26 provides that the Tribunal may inform itself in any way it considers appropriate.
71. Section 54 specifically envisages and permits a hearing on the papers without the parties appearing in person. It states:
(1) The tribunal may give each party to an application written notice to the effect that—
(a) the tribunal proposes to decide the application without holding a hearing; and
(b) if the party wishes to make representations about the proposal, the party must make the representations within—
(i) 21 days after the day the notice is given; or
(ii) if the tribunal decides that a shorter period is required in all the circumstances of the application—the shorter period.
NoteThe rules may prescribe a longer period for making representations (see s 25 (1) (e) and (2)).
(2) The tribunal may decide not to hold a hearing in relation to the application only if the tribunal—
(a) has given notice under subsection (1); and
(b) has taken into consideration any representations made by a party within the 21-day period or shorter period decided by the tribunal under subsection (1) (b); and
(c) is satisfied that—
(i) it is in the public interest not to hold a hearing; and
(ii) the tribunal has sufficient information to make an informed decision on the application.
72. In the present case the Tribunal has permitted a hearing in person by the parties and by agreement between the parties has issued a notice informing the parties that the matter will be finalised on the papers following receipt of the submissions by the parties. Those submissions have been received and considered by the Tribunal. In general terms there is no denial of procedural fairness in conducting a hearing in accordance with the process agreed between the parties (Koma v Consumer Trader and Tenancy Tribunal [2007] NSWSC 110)
73. It may be argued that section 54(2)(c)(i) of the ACAT Act re-introduces the requirement for procedural fairness such as would mandate that the Tribunal not determine a matter on the papers where issues of fact or law arise that has not been the subject of evidence and submissions from the parties. In most cases with unrepresented parties there will be issues of fact and law that arise for the Tribunal’s consideration that the unrepresented parties have not addressed in their submissions. Indeed there is an issue concerning the practicality and reasonableness of requiring an unrepresented party to carry out meaningful legal research and drafting appropriate submissions.
74. If section 54(2)(c)(i) is construed such as to prevent any hearings on the papers between unrepresented parties where issues of fact or law arise for determination that have not been the subject of submissions then section 54 would have almost no application to disputes between unrepresented parties.
75. If the Tribunal reconvenes the hearing for the purpose only of taking submissions on the breach of statutory duty cause of action, this would likely:
a. produce no meaningful response from the Applicants or put the Applicants to the further costs and inconvenience of again seeking out legal assistance with the further submission sought:
b. attract a submission from Australia Post renewing its reliance on sections 34 and the “Terms and Conditions” but not denying that a action for breach of statutory duty was possible under the Act. Such a submission would take the matter no further than has already been advanced by Australia Post.
c. cause delay in the rendering of a decision.
d. add nothing to the ultimate outcome of the case given the Tribunal’s finding of liability in both contract and tort, each sufficient in its own right to sustain the order made.
76. If Australia Post feels aggrieved by the Tribunal’s decision in relation to its findings in contract and tort then Australia Post has its appeal rights. If Australia Post chooses to exercise those rights then it can at the same time appeal the procedural fairness issue relating to the breach of statutory duty without further cost or delay being caused. If however Australia Post chooses not to appeal the decision finding liability in both contract and tort then the procedural fairness issue in relation to the breach of statutory duty is irrelevant and is most unlikely to form the basis on its own of any appeal by Australia Post.
77. Weighing up all the above the Tribunal has concluded that the public interest is best served in not further delay its decision in this matter.
Costs:
78. The Applicants included in their claim a component for legal costs. Section 48 of the ACAT Act provides that the prima facie position is that parties bear their own costs. There are limited circumstances in which costs may be awarded but there is nothing in the present case that warrants a departure from the general rule.
79. The parties have leave to relist the matter for submissions on costs within 21 days in default of which the order shall be that parties bear their own costs saved for the $43.00 lodgement fee which is to form part of the judgement in favour of the Applicants.
…………………………
Mr A. Anforth
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: XD08/82665
APPLICANT: MICHAEL ZAREW & NATALIE JOHNSON
RESPONDENT: AUSTRALIA POST
COUNSEL APPEARING: APPLICANT:
RESPONDENT: MR R PAVARAJAH
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT: MR M ZAREW
RESPONDENT:
TRIBUNAL MEMBER: MR A ANFORTH
DATE OF HEARING: 16 APRIL 2009 PLACE: CANBERRA
DATE OF DECISION: 7 JULY 2009 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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