Brown v Telstra Corporation Ltd [2004] FCA 1365

FEDERAL COURT OF AUSTRALIA

Brown v Telstra Corporation Ltd [2004] FCA 1365 WILLIAM FRANCIS BROWN v TELSTRA CORPORATION LTD No S 28 of 2004 FINN J ADELAIDE 1 NOVEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 28 OF 2004

BETWEEN: WILLIAM FRANCIS BROWN

APPLICANT

AND: TELSTRA CORPORATION LTD

RESPONDENT

JUDGE: FINN J

DATE OF ORDER: 1 NOVEMBER 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 28 OF 2004

BETWEEN: WILLIAM FRANCIS BROWN

APPLICANT

AND: TELSTRA CORPORATION LTD

RESPONDENT

JUDGE: FINN J

DATE: 1 NOVEMBER 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an unfortunate proceeding. The applicant, William Brown, has prosecuted the claim himself. He has candidly conceded his own limitations, financial and otherwise, in proceeding in this manner. The Court has attempted to facilitate resolution of the matter through mediation. This has failed. For the reasons I now give, the application must be dismissed. 2 Mr Brown's complaint, put shortly, has been that the respondent, Telstra Corporation Ltd, provided him with an inadequate telephone service for the period extending from the middle of 2000 until February 2002. That inadequacy was attributable apparently to congestion on the particular system (a 6/16 PGS) used to provide Mr Brown's service. I describe that system below. It was replaced in February 2002. No complaint has been made relating to the service enjoyed after that date. 3 Of the variety of claims proposed by Mr Brown – and I mean no disrespect in saying that many were either beyond the jurisdiction of this Court or were inapt in the circumstances – there were three classes of claim advanced which were, potentially, available to him. The first was a claim for "statutory damages" under s 116 of the Telecommunications (Consumer Protection and Service Standard) Act 1999 (Cth) ("the T(CPSS) Act") in respect of an alleged contravention or contraventions of the Telecommunications (Customer Service Guarantee) Standard 2000 ("the Standard"). The second alleged contraventions of s 52 and s 53 of the Trade Practices Act 1974 (Cth) ("the TP Act") for which damages were sought. The third alleged a breach of contract, the term breached being the implied warranty of fitness imposed by s 74 of the TP Act. 4 Before dealing with each of these in turn, I should describe briefly the nature both of a 6/16 PGS system and of Mr Brown's complaint of it. According to Telstra's own description of the system: "A 6/16 PGS provides exchange connectivity for up to 16 customers sharing 6 circuits. Congestion of the PGS only occurs if 6 out of the sharing customers are using the system at the same time. Generally, this does not occur frequently due to the random nature of customer usage. PGS congestion does not affect calls already in progress – i.e. it does not cause existing calls to drop out or noisy calls." 5 The general symptoms of congestion would appear to be a busy tone on outgoing calls and a dial tone on incoming calls which would ring out unanswered. Mr Brown's complaint, as I have noted, was of periodic congestion between mid-2000 and February 2002. For the purposes of the Standard this was claimed to be a "fault" consisting of "a condition that makes [his voice telephone] service wholly or partly unusable": Standard, s 4 "fault or service difficulty". 6 I have not attempted to set out at any length Mr Brown's evidence in support of his claims. Little of what he has brought forward is strictly admissible under the Evidence Act 1995 (Cth), but even giving him all advantages in this respect he has not adequately made out his causes of action.