Bogut v Ameroz Pty Ltd [2020] NSWCATCD 25

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bogut v Ameroz Pty Ltd [2020] NSWCATCD 25 Hearing dates: 13 December 2019 Date of orders: 14 January 2020 Decision date: 14 January 2020 Jurisdiction: Consumer and Commercial Division Before: G Bassett, General Member Decision: The application is dismissed. Catchwords: CONSUMER LAW — Shipping and navigation —Admiralty jurisdiction, law and practice — General maritime claim — In respect of what matters action will lie — Carriage of goods by sea — Damage to goods Legislation Cited: Australian Consumer Law, Schedule 2, Competition and Consumer Act (Cth) Admiralty Act 1988 (Cth) Fair Trading Act 1987 (NSW) Cases Cited: Bibin v Mainfreight International Pty Ltd [2016] NSWCATCD 70 Therese Jenner v Kanga Birtles [2014] NSWCATCD 63 Texts Cited: Nil Category: Principal judgment Parties: Michael Bogut (First Applicant) Ameroz Imports Pty Ltd (Respondent) Representation: Applicant (Self-represented) Mr Hart (Respondent) File Number(s): GEN 19/41456 Publication restriction: Nil

REASONS FOR DECISION

Jurisdiction 1. Part 6A of the Fair Trading Act 1987 ("the Act") grants jurisdiction to the Tribunal for consumer claims. 2. The applicant seeks orders pursuant to section 79N of the Fair Trading Act that would require the respondent, Ameroz Pty Ltd to repair or pay for the repair of damaged goods, being a motor vehicle that the applicant alleged it had contracted Ameroz to import from North Carolina and deliver to Mr Bogut. Such services were to be provided with due care and skill. This application was made to the Tribunal on 10 September 2019. 3. At hearing the respondent has challenged the jurisdiction of the Tribunal to hear this matter. The respondent made submissions on jurisdiction and relevant evidence on jurisdiction as well as the substantive claim was taken from the parties. At hearing the applicant relied on no documents other than those attached to his original application. 4. "Maritime Claims" are within the Admiralty jurisdiction of the Commonwealth and the Admiralty Act 1988 (Cth) applies to all maritime claims. Section 5 states: (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. 1. Section 9 applies exclusive jurisdiction for maritime claims outside the jurisdiction of the Tribunal. It states: Admiralty jurisdiction in personam (1) Jurisdiction is conferred on the Federal Court, the Federal Circuit Court and on the courts of the Territories, and the courts of the States are invested with federal jurisdiction, in respect of proceedings commenced as actions in personam : (a) on a maritime claim; or (b) on a claim for damage done to a ship. 1. What is a "maritime claim"? The respondent submitted that under section 4(2)(d)-(f) of the Admiralty Act, a maritime claim includes: (d) a claim (including a claim for loss of life or personal injury) arising out of an act or omission of: (i) the owner or charterer of a ship; (ii) a person in possession or control of a ship; or (iii) a person for whose wrongful acts or omissions the owner, charterer or person in possession or control of a ship is liable; being an act or omission in the navigation or management of the ship, including an act or omission in connection with: (iv) the loading of goods on to, or the unloading of goods from, the ship; (v) the embarkation of persons on to, or the disembarkation of persons from, the ship; and (vi) the carriage of goods or persons on the ship; or (e) a claim for loss of, or damage to, goods carried by a ship; or (f) a claim arising out of an agreement that relates to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charterparty or otherwise; or 1. The respondent particularly emphasised that this matter is a claim for an act or omission in the navigation or management of a ship in connection with carriage of goods in the ship. It is also claim for loss and damage arising to goods carried by the ship. The claim also arises out of an agreement relating to the carriage of goods by a ship. Being a maritime claim as such, it was submitted that under section 9 of the Admiralty Act, only the Federal Court has jurisdiction to hear a matter such as this one lodged by Mr. Bogut.