Dai v Telecommunications Industry Ombudsman [2000] FCA 408

FEDERAL COURT OF AUSTRALIA

Dai v Telecommunications Industry Ombudsman [2000] FCA 408 RONG-HUA DAI V TELECOMMUNICATIONS INDUSTRY OMBUDSMAN & ANOR N 1223 OF 1999 LINDGREN J 27 MARCH 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1223 OF 1999

BETWEEN: RONG-HUA DAI

APPLICANT

AND: TELECOMMUNICATIONS INDUSTRY OMBUDSMAN

FIRST RESPONDENT

RSL COM PERSONAL COMMUNICATIONS PTY LTD

SECOND RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 27 MARCH 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondents' costs including their costs of their motions. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1223 OF 1999

BETWEEN: RONG-HUA DAI

APPLICANT

AND: TELECOMMUNICATIONS INDUSTRY OMBUDSMAN

FIRST RESPONDENT

RSL COM PERSONAL COMMUNICATIONS PTY LTD

SECOND RESPONDENT

JUDGE: LINDGREN J

DATE: 27 MARCH 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT (ex tempore) 1 The applicant commenced this proceeding on 25 October 1999 and referred in his application to numerous Commonwealth statutes including the Telecommunications Act 1997 (Cth), the Trade Practices Act 1974 (Cth), the Racial Discrimination Act 1975 (Cth), the Anti-Discrimination Act 1977 (NSW), the Crimes Act 1914 (Cth)"& etc and any other legislation". 2 In the application, the applicant claimed as follows: "1. TIO has been wrongfully, wilfully, unjudicially, corruptly, discriminatorily and oppressively dealing with and nullifying C/99/41643 TIO, liable for $3,000,000.00 in compensation to the Applicant. 2. RLS COM Personal Communications Australia P/L has knowingly and recklessly (i) breached contract with wide social implications, liable for $1,000,000.00 in compensation to the Applicant; and (ii) denied liabilities by misleading and deceptive acts, declaring before evidence not prepared to resolve the matter, liable for $1,000,000.00 in compensation to the Applicant; and (iii) caused inconveniences to the Applicant, liable for $1,000,000.00 in compensation to the Applicant" 3 An "accompanying affidavit" referred to in the application was not an affidavit at all because although it was signed by the applicant, it bore no signature of a Justice of the Peace or of anyone else to indicate that it had been sworn. The piece of paper did, however, have annexed to it twenty one documents which were said to be "exhibits". 4 At the first directions hearing, when the applicant appeared in person, I made a direction on the application of the legal representatives of the respondents that the applicant file and serve a statement of claim by 15 December 1999. I stood over the proceeding to Friday 17 December 1999 for further directions. The applicant filed a statement of claim on 13 December 1999. 5 At the directions hearing on 17 December 1999, when again the applicant appeared in person, I granted leave to the respondents to file notices of motion returnable today for a striking out or summary dismissal; directed that any such notices of motion be filed and served by 28 January together with any affidavits in support; directed that the respondents as applicants on the motions file and serve outline of submissions by 18 February; directed the applicant to file and serve any affidavit evidence by 11 February; directed the applicant to file and serve outline of submissions by 23 February; and stood the proceeding over to 10 March for review. 6 Both respondents filed notices of motion seeking orders that the proceeding be dismissed. The notice of motion filed on behalf of the first respondent sought, in the alternative, an order that the application and statement of claim be struck out. Short affidavits in support of the motions were also filed. 7 At the review hearing on 10 March the applicant did not appear and no orders were made since the motions were already fixed for hearing today. 8 Today the applicant's name was called outside the Court but he has not appeared and I have heard the motions in his absence. 9 The statement of claim is obscure. It makes sweeping allegations in extreme terms. For example it alleges that the first respondent: (c) abused its jurisdiction and protected offences by: (I) nullifying the dispute; and (II) wronging the innocent; and (III) discriminating against the Applicant by asking the Applicant in TIO C/99/41643 to 'provide additional evidence to support your case' (Exhibit 015) when RSL COM provided nothing; and (IV) victimising the Applicant in TIO C/98/56460 or Exhibit 016 in N240/1999 by alleging 'Based on the information provided to the TIO to date, I am unable to find grounds for further investigation of your complaint' when information before TIO is more than sufficient; … (e) taken advantage of an adverse precedent in Lackenby's October 20th appeal index settlement by asking to 'amend' (Exhibit 024) the Application of N1223/1999 after 8th December 1999 whilst being unable to file a Defence; (f) prolonged the Court proceedings with no cause of action yet hoping a repetition of a judicial error as in N240/1999 whilst showing no remorse as a jurisdictional body with full knowledge of law and justice;" 10 The second respondent was not to escape the abuse: the statement of claim alleged that it: "(c) manipulated with an unconscionable state of mind the specified insurance terms to deceive the Applicant (Exhibits 000 & 017); (d) attempted to set an adverse precedent by materializing offences in above; (e) refused to resolve the dispute before evidence from the Customer Service through to the Dispute Resolution Office (Exhibits 000 & 017); (f) lied persistently during the course of dispute (Exhibits 000, 017 & 019);" 11 The statement of claim set out the following under the heading "RELIEF SOUGHT": (1) TIO'S civil liabilities and criminal punishment TIO is a repeated offender. Despite the Applicant's warnings as of 05/02/99 regarding TIO C/98/56460 (or Exhibit 015 in N240/1999), TIO as a government agent has under its jurisdiction 1) confounded black and white; 2) permitted and protected offences; 3) turned the Ombudsman system deemed to be just and fair into a place of unjustness and unfairness; 4) trampled on human rights and victimised the Applicant; and 5) failed the mechanism of the Schemes. Its state of mind and conduct after the Application of N1223 of 1999 are indifferent with no indication of remorse. Instead of admitting wrongdoings and redeeming itself, it consciously went along with elements intolerable and damaging to the society. (a) Apart from the Relief sought in the Application of N1223 of 1999, TIO is further liable for: (I) $3 millions ($3,000,000.00) as a repeated offender; and (II) $3 millions ($3,000,000.00) for discriminatorily and unjudicially nullifying proceedings and causing consequences; and (III) $1 million ($1,000,000.00) for wilful trouble making by: (i) asking the Applicant to withdraw the Application whilst being unable to file a Defence; and (ii) asking the Applicant to file a Statement of Claim whilst being unable to file a Defence; and (iii) demanding to 'amend' the Application whilst being unable to file a Defence; (b) TIO has completely betrayed the public trust and failed any duties conferred upon it. Before dismantling it, s.44ZZI (a)(b)(c) of TPA be granted to: (I) review all disputes since its establishment in 1993; and (II) issue a public apology with reasons of why TIO's 'fair, objective and non-bureaucratic way' has been violated; and (III) publicise how many disputes have been nullified; and (IV) publicise how many have been wronged as a result of (III); and (V) refund and compensate any complainants affected by (I)(II)(III)(IV) in above; and (VI) remove John Pinnock from TIO as the Ombudsman; and (VII) investigate any persons behind Pinnock; and (VIII) publicise any funds contributed by members of the TIO Schemes to expose ambiguous relations between TIO and these members; and (IX) subject individuals involved to pecuniary penalties. (c) Knowingly violating the law deserves the severest punishment; criminal proceedings be initiated in accordance of: (I) s.32 imprisonment up to 10 years for unjudicial jurisdiction; and (II) s.33 imprisonment up to 2 years for acting oppressively; and (III) s.35 imprisonment up to 5 years for giving false evidence under its own jurisdiction; and IV) any other legislations. (2) RSL COM's civil and criminal liabilities Instead of correcting a mistake as suggested by the Applicant in 6.1 (Exhibit 000) to end the matter in accordance to RSL COM EZIfone Insurance Terms & Conditions, RSL COM has chosen an antagonistic and deceptive position against the Applicant. Not admitting wrongdoings after the Application, RSL COM engaged in a deceitful manner harassing the Applicant (Exhibit 022 & 023). (a) Apart from the Relief sought in the Application of N1223 of 1999, RSL COM is further liable for: (I) $1 million ($1,000,000.00) for harassing the Applicant by instructing Statewide Mereantile [sic] Services to demand payment not effectuated; and (II) $1 million ($1,000,000.00) for exerting pressure on the Applicant by instructing Statewide Mercantile Services to threaten the Applicant with legal action in order to enforce and materialise its offences; (b) To punish the greed and contempt of justice by RSL COM's decision makers, s.44ZZI (a)(b)(c) of TPA be granted to: (I) remove chief executives from any position without any benefit; and (II) subject chief executives to severest pecuniary penalties; and (III) subject decision-makers to severest pecuniary penalties. (c) Criminal proceedings be initiated in accordance of any relevant legislations. 12 The proceeding arises out of the second respondent's unwillingness to replace the applicant's stolen mobile telephone except upon payment of $200. 13 The evidence shows that on 13 November 1998 the applicant applied to the second respondent to acquire from it an Ericsson mobile telephone. He signed an application form headed "Application for EZI-Fone Digital Service Connection". It contained an acknowledgment that he had been made aware of "EZI Protect Insurance Terms & Conditions". These terms and conditions are also in evidence. Clauses 4 and 5 are of relevance. They are as follows: "4 DAMAGE OR LOSS Replacement: RSL COM will replace the EZIfone Hardware if the EZIfone Hardware is stolen or accidentally lost or damaged (other than where the following paragraphs apply) for a period of 18 months from the date of your RSL COM EZIfone Digital Service Connection Contract. Cost: if the EZIfone Hardware is stolen or accidentally lost or damaged (other than where paragraph 5 applies), RSL COM may charge you a fee equal to the cost to RSL COM of repairing or replacing (which ever is the lesser) the EZIfone Hardware up to a maximum amount of $200 for the first such claim and $400 for each claim thereafter. RSL COM reserves the right to terminate your EZIfone Digital Service Connection Contract if you make two (2) or more claims. 5 MANUFACTURERS WARRANTY OR GUARANTEE Replacement: The manufacturer's specifications are those specifications which are the subject of a guarantee or warranty by the manufacturer of the EZIfone Hardware. RSL COM will replace your EZIfone Hardware on the basis that the manufacturer's guarantee or warranty extends for a period of 18 months from the date of your RSL COM EZIfone Digital Service Connection Contract. Cost: Where the manufacturer's guarantee or warranty requires the manufacturer to repair or replace the EZIfone Hardware, RSL COM will replace the Hardware at no cost to you." 14 There is evidence that the "manufacturer's warranty or guarantee" is a document headed "Ericsson '30 day Safeguard'". That document states that if a product "fails" within thirty days of sale to the end user, Ericsson will replace it with "a brand new complete kit." 15 What happened here, however, was not a failure of the mobile telephone but a theft of it. According to a claim made by the applicant on an "EZIfone Insurance Claim Form" dated 3 July 1999, the applicant's mobile telephone was stolen when a friend of his was at a restaurant. According to the applicant's statement, after making a call, the friend placed the telephone on the table and then it "disappeared". The insurance claim form contained just above the applicant's signature an acknowledgment that he would be charged "an excess fee of $200 on [his] first claim and $400 for each claim thereafter." 16 Apparently the mobile telephone has been replaced but the applicant has refused to pay the sum of $200. Yet he is suing rather than being sued! The applicant apparently thinks that the circumstances are covered by clause 5 rather than clause 4 of the EZIfone Insurance Terms and Conditions. Clause 4 is clearly the applicable clause. That clause provides that the second respondent is entitled to charge a fee equal to the cost to it of repairing or replacing (whichever is the lesser) the mobile telephone up to a maximum amount of $200. 17 The legal representative for the second respondent has, in fairness, drawn my attention to a letter dated 19 November 1998 from his client to the applicant which included a statement that the applicant would enjoy an "18 month manufacturer's warranty and full insurance" covering his telephone "to the value of $500 - free of charge". Against the possibility that the applicant may have been relying upon that letter as containing a misrepresentation, the second respondent points out that the letter post-dates the sale by it to the applicant of the telephone and so it could not be suggested that any misrepresentation which may be found in the statement induced the applicant to enter into the contract. 18 Order 20, rule 2 of the Federal Court Rules provides as follow: "2(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding - (a) no reasonable cause of action is disclosed; (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court, the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding." 19 In relation to ground (b), I have been taken to a letter dated 15 March 2000 which the applicant wrote to the solicitors for the respective respondents. Generally in line with the tone of the application and the statement of claim, it alleges in extreme and vituperative terms various forms of misdeed by the respondents and, for good measure, various individuals. It sets out the following orders which the applicant claims to be seeking: 4.1 The First Respondent pays to the Applicant - (1) $10 million dollars ($10,000,000.00) in compliance to Details Of The Claim and Statement Of The Claim of which - (a) Marcella Venegas, the Officer in C98/56450 pays $100,000.00; (b) Jim Tilkeridis, the Manager in C98/56450 pays $300,000.00; (c) Anthony Beaumont, the Officer in C99/41643 pays $100,000.00; (d) John Pinnock pays $1,000,000.00; (e) TIO pays $8,500,000.00; (f) individuals to be held liable after DPP's investigations in 3.1 and in this Notice each pay $1,500,000.00 to TIO in (e); (g) Head of Government, if found liable in (f), pays $2,000,000.00 to (e); (h) individuals failing to pay be liquidated; (i) individuals found liable in paragraphs 3.1, 4.1 and 5.1 be barred from entering the public sector or engage in any public-related activities. (2) All the costs. 4.2 The First Respondent (a) reviews all disputes under its jurisdiction since its establishment in 1993 within seven (7) days after the date of the Orders; (b) refunds and compensates all the complainants under (a); (c) serves notice of refund or compensation or otherwise upon involving parties within seven (7) days after the review date; (d) files review decisions to the Court for public distribution within seven (7) days after (c); (e) be fully liable for any actions as a result of (a); (f) releases at its cost (a)-(d) at press conferences televised to the nation every fifth of the month during the review process; (g) names names in doing (f) with statistics, nature of complaints, numbers of complaints to each telecommunications company, amount refunded and compensated, members penalised or punished or imprisoned whether of TIO or Schemes members and details of penalty, punishment or term of imprisonment; (h) be completely dismantled after 4.1 and 4.2. 4.3 The Second Respondent pays to the Applicant: (1) $5 million dollars ($5,000,000.00) of which: (a) RSL COM's management members pay $2,000,000.00; (b) Sonya Sarkis, Dispute Resolution Officer, pays $100,000.00; (c) RSL COM pays $2,900,000.00; (d) individuals failing to pay be liquidated. (2) $70.00 of COM 30 Access Fees for the period 20th August 1999-20th March 2000 for failure to terminate the contract in compliance with the Dispute of 27th August 1999 or Exhibit 000 ($10.00 each month after March 20th). (3) all the costs. 4.4 Judgement, Orders, and the entire text of the Application be released at the Respondents' cost to the Federal Court website for public education and like applications." 20 In my view all three grounds referred to in subr 2(1) of O 20 are made out. The case is not simply one of a defective pleading (see O 11 r 16) in which the applicant should be given leave to re-plead: rather, he has no cause of action. 21 In the result, the Court orders that: 1. The application be dismissed. 2. The applicant pay the respondents' costs including their costs of their motions.