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. 1. The T(CPSS) Act claim 7 Under s 115 of this Act the Australian Communications Authority ("the ACA") has made a performance standard the contravention of which, in designated circumstances, enables an affected customer to claim statutorily specified damages. 8 Section 116 provides (insofar as presently relevant) that: "(1) If: (a) a carriage service provider contravenes a standard in force under section 115; and (b) the contravention relates to a particular customer; the carriage service provider is liable to pay damages to the customer for the contravention. (2) The amount of damages payable for a particular contravention is equal to the relevant amount specified in the scale in force under section 117. … (4) The customer may recover the amount of the damages by action against the carriage service provider in a court of competent jurisdiction. … (6) An action under this section must be instituted within 2 years after: (a) in the case of a contravention that continued throughout a period – the time when the contravention began; or (b) in any other case – the time when the contravention occurred." Emphasis added. 9 Mr Brown did not commence this proceeding until 20 February 2004. It is clear that, no matter how he formulates his claim in relation to the alleged contravention of the Standard, his claim is barred by s 116(6) as all of his complaints relate to the situation which obtained over a period ending more than two years prior to his filing this proceeding. 10 The reason I have not outlined in any detail either the provisions of Part 5 of the Act dealing with the "Customer service guarantee" (or "CSG") or the substance of Mr Brown's claim is because I do not consider that there is any available basis upon which either the time provisions of s 116(6) can be extended or non-compliance with the subsection can be disregarded. 11 The statutory right to claim damages under Part 5 of the T(CPSS) Act is, in my view, subject to the conditions and limitations imposed by the Part. The imperative "must be instituted" in s 116(6) suggests, clearly enough, a "deliberate choice by the Parliament": Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407 at [21]; limiting the benefit of a customer's right to access the Part's contrived damages scheme to "the time specified": The Crown v McNeil (1922) 31 CLR 76 at 96. That scheme, in circumstances such as the present, imposed a two-tiered rate of daily compensation ($12 and then $40) for each working day that connections or repairs were delayed beyond the CSG time frames that were prescribed, up to a specified maximum for contravention of the Standard. 12 Part 5 discloses no "legislative purpose" in the Act which would condone non-compliance with the requirement of s 116(6): cf Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91] ff; and which would permit damages to be claimed beyond the two year limitation period. It would be surprising if it did given that the "damages" in question do not necessarily reflect any actual loss sustained by the customer: see Explanatory Memorandum p 96, subclause 116(2). The Explanatory Memorandum for Part 5 rather suggests a contrary purpose. It indicates that: "The primary intention of [performance] standards however, is not to benefit customers financially, but provide carriage service providers with an incentive to meet performance standards. It is only when a carriage service provider fails to meet such standards that customers can seek compensation. While the CSG must ultimately be enforced by a court, the scheme has been designed to encourage voluntary compliance by the industry and the involvement of the Telecommunications Industry Ombudsman (TIO). The CSG provides a streamlined means of compensating customers in certain specified circumstances. The CSG does not limit or affect any other rights to action or damages a person may have." 13 Given the significant regulatory scheme of the Act involving both the ACA and the TIO, it is improbable that the legislature would have envisaged the bringing of claims out of time as yet another mechanism to exact compliance with performance standards. I would also note that the Act only purports to so regulate that which it gives. Part 5 expressly does not limit or otherwise affect any other right or remedy that a customer has against Telstra in respect of its conduct: s 121. 14 In consequence I am satisfied that Mr Brown's s 116 claim is time barred and must be dismissed. I should add, though, that the case is not one of Mr Brown sleeping on his rights. He has invoked the jurisdiction of the TIO with some limited success. 2. The s 52 and s 53 TP Act Claims 15 The insuperable difficulty Mr Brown's claims confront is that they assume what has to be demonstrated. Because he has experienced difficulties with the 6/16 PGS system, Mr Brown in essence reasons backwards and claims that Telstra has been guilty of misleading or deceptive conduct (s 52) or of making false representations as to the standard etc of its service (s 53). What is lacking in the material before me is the identification of the actual conduct engaged in by Telstra that was misleading or deceptive or which involved a false representation. 16 Mr Brown has not brought forward an evidentiary basis for his claims. As I earlier noted such material as he has advanced is not in the main strictly admissible. Nonetheless even if this is overlooked, his claims are vitally deficient. There is not the evidence there to make out his causes of action. The terms, circumstances and character of Telstra's alleged representations as to its service, for example, are neither sufficiently identified nor appropriately substantiated. Nor has any resultant loss or damage been disclosed. 17 It regrettably is the case that Mr Brown, for understandable reasons, has been unequal to the task of preparing a case of the complexity of that which he has sought to bring. I have no choice but to dismiss it. 3. The S74 TP Act Claim 18 This claim suffers the same defects as the preceding two TP Act claims. No material, admissible or otherwise, is before me which identifies in any way the terms of his contract with Telstra as to the provision of his telephone services. The claim is simply that the services were not reasonably fit for the purpose for which they were supplied because of the incidents of "congestion". This again was a matter of assertion not of evidence. 19 I again must dismiss this claim. 4. CONCLUSION 20 Five days prior to the hearing of this matter, Telstra indicated to the Court and to Mr Brown that, such was the state of the evidence advanced by Mr Brown, it would be making a "no case" submission under O 32 r 4 of the Federal Court Rules. As it was clear at the outset of the hearing that the claims made were untenable for the reasons I have given, I proceeded on a "no case" basis. I did not consider it necessary formally to require Telstra to make an election not to call evidence. Nor did I engage in the process of ruling specifically on the admissibility of Mr Brown's affidavits. I would merely note that in the interests of savings costs I have throughout attempted to deal with this matter in a summary way. 21 The order of the Court is that the application be dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 1 November 2004 The Applicant appeared in person. Counsel for the Respondent: Mr M Roder Solicitor for the Respondent: Sparke Helmore Date of Hearing: 19 October 2004 Date of Judgment: 1 November 2004