Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Skiba v Serendipity (WA) Pty Ltd t/as Advanced Personal Management [2019] NSWCATAP 224 Hearing dates: 12 March 2019 Date of orders: 10 September 2019 Decision date: 10 September 2019 Jurisdiction: Appeal Panel Before: S Higgins, Senior Member P H Molony, Senior Member Decision: (1) Appellant's application for an extension of time within which to lodge her Notice of Appeal is dismissed. (2) Appeal dismissed. (3) Within 14 days the respondent may file written submissions in relation to the costs of the appeal. (4) Within a further 14 days the appellant may file submissions in response. (5) Any submissions filed in accordance with orders 3 and 4 should address whether the question of costs may be determined on the papers and without a hearing pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013. Catchwords: CONSUMER CLAIM – whether services provided by the respondent fell within s 79F(1) of the Fair Trading Act 1987 (NSW) – whether the services were provided, granted of conferred in trade or commerce CONSUMER CLAIM – whether remedy sought fell within the terms of s 79E of the Fair Trading Act 1987 (NSW) Legislation Cited: Australian Consumer Law Competition and Consumer Act 2010 (Cth) Civil and Administrative Tribunal Act 2013 (NSW) Fair Trading Act 1987 (NSW) Social Security Act 1991 (Cth) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (190) 169 CLR 594 Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 Kennett v Financial Ombudsman Services Ltd [2017] NSWSC 1240 Kennett v Financial Ombudsman Service Ltd [2017] NSWCATAP 59 Lam v Steve Jarvie Motors [2016] NSWCATAP 186, a Plath v Snowy Monaro Regional Council [2019] NSWCATAP 165 Williams v Pisano [2015] NSWCA 177 Texts Cited: None cited Category: Principal judgment Parties: Zofia Skiba (Appellant) Serndipity (WA) Pty Ltd t/as Advanced Personal Management (Respondent) Representation: Counsel: A Fleckno-Brown (Respondent) Solicitors: Appellant (Self Represented) Barry Nilsson Lawyers (Respondent) File Number(s): AP 19/00210 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 6 November 2018 Before: J Ringrose, Tribunal Member File Number(s): GEN 18/33201 reasons For Decision 1. The appellant, Zofia Skiba, is in receipt of a Commonwealth Newstart Allowance under Part 2.12 of the Social Security Act 1991 (Cth). She seeks to appeal, in part, the decision of the Tribunal, in the Consumer and Commercial Division (the Tribunal), made on 6 November 2018, dismissing her 'consumer claim' against the respondent, Serendipity (WA) Pty Ltd t/a Advanced Personal Management (APM), a Commonwealth Government contracted jobactive provider. 2. There were several aspects to the appellant's claim before the Tribunal, which are set out in the Background below. In its Notice of Decision the Tribunal found that the orders sought by the appellant 'have not been made out or are outside the jurisdiction of the Tribunal': see at [25] below where the Tribunal's Notice of Decision is set out in full. The Tribunal addressed each aspect of the appellant's claim. However, the appellant only seeks to appeal the following findings of the Tribunal: The claim for the repayment of a sum of $912.36 must fail as the applicant has not paid any money to the respondents. … The order seeking the amendment of terms contained in an agreement with Centrelink is not within the powers of the Tribunal. The application must therefore be dismissed in its totality. 1. The appellant's appeal is an internal appeal under s 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). However, as her Notice of Appeal was lodged four weeks after the 28 days prescribed in rule 25(4)(c) of the Civil and Administrative Rules 2014 (NSW) (NCAT Rules) for the lodging of an internal appeal, she has made an application for an extension of time under s 41 of the NCAT Act. The respondent has not conceded to time being extended, but argued that the appellant's appeal and original claim lacked merit. 2. For the reasons set out below, we agree the appellant's claim the subject of this appeal lacks merit in that, on the material before us, her claim cannot succeed either because her claim has not been made out or the orders she seeks fall outside of the jurisdiction of the Tribunal. Hence, we have refused to extend the time within which the appellant is to lodge her appeal as we agree with the Tribunal's conclusion that her claim should be dismissed. 3. While we see no error in the conclusion reached by the Tribunal, our reasons for doing so differ to those set out by the Tribunal in its Notice of Decision. In summary, we are satisfied that: 1. the services provided by the respondent to the appellant were not provided 'in trade or commerce', as required under s 79F(1) of the Fair Trading Act 1987 (NSW) (FT Act). This, as we have noted is a pre-requisite to the Tribunal's power to hear and determine a consumer claim under the Australian Consumer Law (NSW); and 2. the amendment remedy sought by the appellant is not a remedy falling within s 79E of the FT Act, or an order the Tribunal has power to make in favour of a claimant under s 79N of that Act. Availability of Appeal 1. An internal appeal may be made as of right on a question of law, and otherwise with the leave of the Appeal Panel: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. The other circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are those set out in cl 12(1) of Sch 4 of the NCAT Act. The Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (a) The decision of the Tribunal under appeal was not fair and equitable; or (b) The decision of the Tribunal under appeal was against the weight of evidence; or (c) Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. Even where the appellant satisfies the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b): see Collins v Urban [2014] NSWCATAP 17, at [84], where the Appeal Panel set out the circumstances where it is appropriate to grant leave to appeal. 2. The principles relevant to an application for an extension of time to bring an appeal were set out by the Appeal Panel in Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22, at [22]. In this regard the Appeal Panel said that: (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), 1. The Appeal Panel went on to say that in some circumstances it may be appropriate for an appellant seeking an extension of time to show that his or her case has more substantial merit than merely being fairly arguable. Background 1. As we have noted, the appellant is in receipt of a Commonwealth Newstart Allowance, the eligibility of which is regulated under Part 2.12 of the Social Security Act 1991 (Cth). It is not disputed that in order to continue receiving her allowance the appellant must actively seek and willing to undertake paid work, other than work for which she is unsuitable (Social Security Act, s 601). Nor is it disputed that she, as a Newstart Allowance jobseeker, is required to enter a Newstart Employment Pathway Plan (Social Security Act, s 605), the terms of which are determined by the Secretary of the Commonwealth Department of Human Services (Social Security Act, s 606). 2. To assist job seekers on a Newstart Allowance to meet their obligations under Part 2.12 of the Social Security Act, the Commonwealth Department of Jobs and Small Business (formerly the Commonwealth Department of Employment) have initiated a jobactive program. The program is implemented through private employment service providers (jobactive providers) contracted by the Department under the terms of the Commonwealth Jobactive Deed 2015-220 (Jobactive Deed (Cth)). The respondent is a jobactive provider contracted under that Deed. 3. Sometime before 1 March 2017, Centrelink referred the appellant to the respondent's Merrylands office jobactive program, conducted by the respondent. 4. It is not disputed that the object of the jobactive program is for jobactive providers to help jobseekers get ready for work. The services a jobactive provider can provide are prescribed in the Jobactive Deed (Cth). This includes assisting jobseekers to look for work, writing resumes and preparing for interviews, assisting with skill development more generally and participating in the Commonwealth Work for the Dole Program (Work for the Dole). 5. On 1 March 2017, in accordance with the terms of the jobactive program the appellant met with the respondent and they agreed on a Job Plan for her. The Plan, an Employment Pathway Plan for the purpose of s 605 of the Social Security Act, set out the appellant's mutual obligations in seeking and being ready for work while receiving her new start allowance. Under the provisions of the Social Security Act, a failure to meet her mutual obligations may result in her allowance being reduced or cancelled. 6. Under the terms of the jobactive program, in late December 2017, the appellant was due to commence her Work for the Dole phase of that program. 7. Accordingly, on 4 January 2018, the appellant signed a new Job Plan, agreed between her and the respondent, which complied with the Work for the Dole requirements. Included in that Plan was an agreement by the appellant to 'undertake 30 hours per fortnight of full time education or training with Alffie from 04/01/2018 to 31/07/2018'. The respondent had registered the appellant for the training with Training Online Australia Pty Ltd t/a Alffie (Alffie) for the on-line 'Certificate III in Business' course, which was to be undertaken by the appellant every Monday and Tuesday from 9am to 5pm. The cost of the course was $960, excluding GST. 8. The respondent paid Alffie for the appellant's participation in the course. Subsequently, the respondent sought and obtained reimbursement from the Commonwealth for the amount it had paid Alffie (including $96 GST which was accounted for to the Australian Tax Office) for the appellant's participation. 9. On 30 July 2018, the appellant, being dissatisfied with the work schedule of Alffie, lodged an application with the Tribunal, in the Consumer and Commercial Division seeking orders against Alffie and the respondent under the Australian Consumer Law for unfair contract terms, unconscionable conduct and wrongly accepting payment for services they did not supply. 10. In her application the appellant sought the following orders: An order to pay me the amount of $96 An order to do work or services as stated below to the approximate value of $138.60 1. Continue providing training services till 14.03/2018. 2. Pay back to government funds the amount of $96. 3. Amend my government record to show that $960 was used for my training (not $1056). Total amount claimed: $234.60 1. Prior to the hearing of her application, the appellant made an application seeking two additional orders. One order was for the provision of an itemised bill for the Alffie tax invoice for $960. The other order was in the following terms: To pay me the amount of $912.36, or pay the amount back to government funds and amend my record accordingly. (This order is for APM) 1. In regard to the second order, in support of her claim the appellant relied on copies of four tax invoices she appears to have obtained under a freedom of information application. The invoices were dated 1/03/2017, 13/06/2017, 12/12/2017 and 12/06/2018 and the total amount invoiced was $912.36. The payer on the 2017 invoices was the former Commonwealth Department of Employment and the payer on the most recent invoice was the Commonwealth Department of Jobs and Small Business. The payee on each invoice was the respondent and the claim was identified as: Payment For: MS ZOFIA SKIBA … Type: … monthly StreamB Admin Fee – NonReg & NonSpt Effective Date: … 1. In her application before the Tribunal the appellant asserted that these payments were recorded on 'her government file' (i.e. the Commonwealth Employment Support Services (ESS) electronic record system) as payments that she had received, when at no time did she in fact receive such payments and: As a result the money is recorded on my government file as payments that I received, whereas I have not received any of the payments. AMP receives the payments, but my record is burdened with the money. This is not only unconscionable conduct, but fraud as well. 1. As noted above, the appellant's application was heard and determined by the Tribunal on 6 November 2018. The decision of the Tribunal 1. In its Notice of Decision the Tribunal said: The application for orders under the Australian Consumer Law is dismissed because the applicant has received Centrelink benefits including payments made through Centrelink to the first and second respondents for the provision of accredited training. The applicant made no payments on her own behalf. In her amended claim she sought some 11 orders which have not been made out or are outside the jurisdiction of the Tribunal. The first order sought relates to a repayment of $96 which was clearly GST paid to the provider of the course. This order must fail. The second order relating to provision of goods or services to the value of $138.60 must fail as there is no evidence of payment of any monies by the applicant. The third order requiring provision of training services to 14/3/2018 is not supported by evidence. The fourth and fifth orders relate to the GST payment for the course must also fail for the reasons stated above. The request to provide invoices for services paid for by Centrelink and the order seeking a declaration that statements in the student handbook are void as well as the orders requiring amendment of government records are all outside the jurisdiction of the Tribunal. The claim for the repayment of a sum of $912.36 must fail as the applicant has not paid any money to the respondents. The claim to require production of itemised bills for services paid by Centrelink is outside the power of the Tribunal. The order seeking the amendment of terms contained in an agreement with Centrelink is not within the powers of the Tribunal. The application must therefore be dismissed in its totality. 1. The Tribunal did not give an oral decision at the conclusion of the hearing. However, as noted above, the Tribunal's Notice of Decision was dated the same date as the hearing of the appellant's application. Notice of Appeal 1. In her Notice of Appeal, the appellant set out her reasons for having delayed lodging her appeal. We have dealt with these below. 2. As we have noted at [2] above, the appellant seeks to appeal the findings of the Tribunal in regard to her request to amend her government record and the finding in regard to her claim concerning the $912.36. 3. The appellant explained that her grounds of appeal in regard to the $912,36 were as follows: This is true that I did not pay any money to the respondents. Therefore, I did not request the money to be repaid to me. I requested to pay the money to me, or repay the money to government funds. At the first glance it appears that the order "The claim for repayment of a sum of $912.36 must fail as the applicant has not paid any money to the respondents" refers to the first part of my orders sought. However it is not. "Repayment" means paying back. I did not request the amount to be repaid to me. I requested the amount to be paid to me. The second part of my orders sought refers to repayment (paying back) the amount to government funds. Consequently, the Tribunal order "the claim for repayment of a sum of $912.36 must fail as the applicant has not paid any money to the respondents" refers to the second part of my orders sought– repayment to government funds. The Notice of order does not provide an order regarding paying the sum of $912.36 to me. The Tribunal has not made a decision in the matter. (I assume that a Tribunal decision should be interpreted literally.) 1. The appellant went on to contend that the respondent, 'a supplier of commercial services', had engaged in unconscionable conduct contrary to s 21 of the Australian Consumer Law by failing to pay her the $912.36. She also contended that the respondent should not have accepted the payments as payments for her, as she was not entitled to receive administrative fees. 2. The appellant concluded by submitting that the Tribunal erred in failing: 1. to make a decision in regard to the first part of her claim (i.e. an order that the respondent pay her $912.36); and 2. to consider the second part of her claim holistically. In this regard the appellant contended that it did not matter that she had not paid any money to the respondents. She submitted that the respondent should nevertheless repay the Commonwealth so that her government record will be amended automatically. 1. In support of her appeal, the appellant filed and served a copy of the material that was before the Tribunal, including the submissions of the respondent and the affidavit of Travis Corbett, the respondent's Manager of Audit and Compliance, sworn on 16 October 2018. The appellant also provided a CD recording of the hearing before the Tribunal, together with her typed transcript of the hearing. 2. In her written submissions filed subsequently and during oral argument at the hearing, the appellant contended that she was a 'consumer' and the respondent was a supplier of employment services which it supplied to her pursuant to the Job Plan that she and the respondent had agreed to. Reply to Appeal 1. In its Reply to Appeal, the respondent said it agreed with the factual findings of the Tribunal. In this regard it submitted that the Tribunal had found that the appellant was not a 'consumer' within the Australian Consumer Law as she did not make the payment, which was the subject of her claim – it was made by Centrelink for the appellant. Hence, it was unnecessary/otiose for the Tribunal to address each and every order sought by the appellant, as her underlying cause of action had not been made out. 2. Subsequently, in support of its position, the respondent filed and served short written submissions together with a copy of the material on which it relied at the hearing before the Tribunal (i.e. its written submissions, the affidavit of Travis Corbett (including the attachments thereto)), the evidence of the appellant and an unofficial transcript of the hearing. 3. In its written submissions the respondent argued that time should not be extended because the underlying claim of the appellant had no prospect of success. 4. In its oral arguments at the hearing of the appeal, the respondent submitted that the requirement of s 79F of the FT Act had not been enlivened in that the services of which the appellant complained were not a 'service' falling within that section, because there was no contract of employment between it and the appellant. Their relationship, the respondent contended, was governed by the Commonwealth Social Security Framework. The respondent also submitted that the amendment remedy sought by the appellant did not arise from the supply of a service by the respondent to the appellant. Should time be extended? 1. Section 41 of the NCAT Act gives the Tribunal (including the Appeal Panel) a discretion to extend the period of time within which an appeal against an internally appealable decision is to be lodged. The applicable legal principles in the exercise of that discretion are those set out at [8] and [9] above. 2. As we have noted, in this case, there is a four-week delay in the appellant lodging her appeal. Reasons for the delay 1. The appellant contends that the delay in lodging her appeal arose from ongoing correspondence with the Registry of the Tribunal and the Christmas break. 2. On 12 November 2018, subsequent to the hearing, the appellant made a written request for reasons for decision. In that letter the appellant pointed to a number of alleged errors in the Tribunal's Notice of Order and said that she would like to know how the Tribunal came to the conclusion that her claim came outside the jurisdiction of the Tribunal. 3. The Registry of the Tribunal responded on 15 November 2018 and advised the parties that written reasons for decision would be forwarded to them on completion. 4. On 19 November 2018 the Registry of the Tribunal again wrote to the parties and advised that no reasons would be given as the orders issued on 6 November 2018 included reasons prepared by the Member that complied with s 62(2) of the NCAT Act. The appellant was also advised that if she was dissatisfied with the reason given for the dismissal of her application, she had a right to appeal. 5. The appellant said she responded to this letter, by email, on the same day asking whether the Tribunal's response was a written statement of reasons for decision, or a rejection of her request for written reasons. When she had not received a response, on 28 November 2018, the appellant again wrote to the Tribunal. 6. On Friday, 21 December 2018, the appellant received a further letter from the Registrar of the Tribunal, dated 19 December 2019. In that letter the Registrar advised the appellant that no further reasons would be provided and that if she believed the Tribunal had erred she should lodge an appeal and seek an extension of time within which to appeal. 7. The appellant explained that she lodged her appeal on 2 January 2019, when the Penrith NCAT Registry was reopened. 8. In our view the appellant has provided a satisfactory explanation for the delay in lodging her Notice of Appeal. The Appellant's prospect of success 1. We note the appellant has at all times been self-represented and she does not have any legal training. 2. While not raised as a ground of appeal, in our opinion, the Tribunal's Notice of Decision does not satisfy the written statement of reasons requirements of s 62(3) of the NCAT Act, which provides as follows: (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. 1. It is well established, that the requirements prescribed in this subsection equally applies to reasons for decision that are published contemporaneously with the Tribunal's Notice of Decision as required under s 62(1) of the Act: see Collins v Urban (supra), at [47] ff. A failure to provide written reasons for decision in compliance with s 62(3) of the NCAT Act will give rise to a question of law: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, at [13(1)]. 2. In our view, for the reasons we are about to give, it is unnecessary for us to deal with this issue further as we find that, on the information before us, the decision of the Tribunal to dismiss the appellant's claim was correct. We reach this conclusion not on the basis of the findings of the Tribunal as noted in its Notice of Decision, but on the basis that the appellant's claim before the Tribunal could not succeed because the services provided by the respondent the subject of her claim were not services falling within s 79F of the FT Act because they were not provided in 'trade or commerce'. Fair Trading Act – Part 6A 1. Section 28 of the FT Act provides that the Australian Consumer Law (see Competition and Consumer Act 2010 (Cth), Sch 2) applies as a law of New South Wales and, as so applying, may be referred to as the Australian Consumer Law (NSW). 2. However, as explained by the Appeal Panel in Lam v Steve Jarvie Motors [2016] NSWCATAP 186, at [171], Plath v Snowy Monaro Regional Council [2019] NSWCATAP 165, at [4] and Kennett v Financial Ombudsman Service Ltd [2017] NSWCATAP 59, at [9] to [14], the Tribunal's jurisdiction to hear and determine a consumer claim that is based on a contravention of the Australian Consumer Law, is subject to the jurisdictional pre-requisites in Part 6A of the FT Act being satisfied. 3. Section 79I in Part 6A of the FT Act provides that any 'consumer' may apply to the Tribunal for determination of a 'consumer claim'. 4. A 'consumer claim' is defined in s 79E of Part 6A to mean: 79E Meaning of "consumer claim" (cf CC Act 1998, s 3A) (1) For the purposes of this Part, a consumer claim means a claim by a consumer, for one or more of the following remedies, that arises from a supply of goods or services by a supplier to the consumer (whether or not under a contract) or that arises under a contract that is collateral to a contract for the supply of goods or services: (a) the payment of a specified sum of money, (b) the supply of specified services, (c) relief from payment of a specified sum of money, (d) the delivery, return or replacement of specified goods or goods of a specified description. (2) For the avoidance of doubt, a reference in this Part to a consumer claim includes a reference to a claim by a consumer against a supplier (for example, a manufacturer or wholesaler) who is not the direct supplier of goods or services to the consumer if the claim arises from or in connection with the supply of those goods or services by the direct supplier to the consumer. 1. As noted by the Appeal Panel in Kennett (supra) at [13], based on the meaning of 'consumer claim' in s 79E(1), and other definitions relevant to the words and terms in that section, the elements of a consumer claim arising from the supply of services under Part 6A of the FT Act, include the following: 1. the claim must be made by a 'consumer' as defined in s 79D. Section 79H provides that a person claiming to be a consumer is to be presumed to be a consumer until the contrary is proved; 2. the claim must arise from a 'supply' as defined in s 79G(2); 3. the claim is for 'services' as defined in s 79F; 4. by a 'supplier' as defined in s 79D, to a 'consumer' (whether or not under a contract) in the course of carrying on or purporting to carry on a 'business', as defined in s 4; and 5. the claim seeks one of the remedies listed in s 79E(1)(a) to (d). 1. There are further limitations on the Tribunal's jurisdiction in Part 6A (FT Act, s 79K, 79L and 79M), which are not relevant to this appeal or the appellant's claim before the Tribunal. 2. In this case, the relevant elements are whether the appellant's claim was for 'services' as defined in s 79F and whether her claim was for one of the remedies set out on s 79E(1)(a) to (d). 3. Section 79F relevantly provides as follows: 79F Meaning of "services" (cf CC Act 1998, s 3 (1), definition of "services") (1) For the purposes of this Part, a reference to services is a reference to any of the following: (a) the performance of work (including work of a professional nature), whether with or without the supply of goods, (b) …, (c) the provision, or the making available for use, of facilities for amusement, entertainment, recreation or instruction, (d) … … (i) any other rights (including rights in relation to, and interests in, property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce. 1. It is well established that the specific examples of services in s 79F(1)(a) – (h) are affected by the general words at the end of s 79F(1)(i); namely the words - 'provided, granted or conferred in trade or commerce' apply to each of the circumstances referred to in s 79F(1)(a) - (h): see Kennett (supra), at [25] as upheld on appeal in Kennett v Financial Ombudsman Services Ltd [2017] NSWSC 1240, at [30]ff. 2. That is, on its proper construction, s 79F(1)(i) 'is merely a catch-all provision for "other rights, benefits, privileges or facilities" that are "provided, granted or conferred in trade or commerce"'. 3. The term 'trade or commerce' is defined in s 4 of the FT Act to 'include any business or professional activity '. 4. The word 'business' is also defined in s 4 to include a business not carried on for profit, and a trade or profession. 5. In Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (190) 169 CLR 594, at [6] the High Court (per Mason CJ, Dean, Dawson and Gaudron JJ) held that the terms 'trade' and 'commerce' were not terms of art, but were terms of common knowledge of the widest import and did not have a different meaning as contained in s 52 of the now repealed Trade Practices Act 1979 (Cth) (now s 18 of the Australian Consumer Law). The Court went on to say: 6. … [The] real problem involved in the construction of s.52 of the Act does not, however, spring from the use of the words "trade or commerce". It arises from the requirement that the conduct to which the section refers be "in" trade or commerce. … 7. The phrase "in trade or commerce" in s.52 has a restrictive operation. It qualifies the prohibition against engaging in conduct of the specified kind. As a matter of language, a prohibition against engaging in conduct "in trade or commerce" can be construed as encompassing conduct in the course of the myriad of activities which are not, of their nature, of a trading or commercial character but which are undertaken in the course of, or as incidental to, the carrying on of an overall trading or commercial business. If the words "in trade or commerce" in s.52 are construed in that sense, the provisions of the section would extend, for example, to a case where the misleading or deceptive conduct was a failure by a driver to give the correct hand signal when driving a truck in the course of a corporation's haulage business. It would also extend to a case, such as the present, where the alleged misleading or deceptive conduct consisted of the giving of inaccurate information by one employee to another in the course of carrying on the building activities of a commercial builder. Alternatively, the reference to conduct "in trade or commerce" in s.52 can be construed as referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character. So construed, to borrow and adapt words used by Dixon J. in a different context in Bank of N.S.W. v. The Commonwealth [1948] HCA7; (1948) 76 CLR 1, at p 381, the words "in trade or commerce" refer to "the central conception" of trade or commerce and not to the "immense field of activities" in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business. 8. As a matter of mere language, the arguments favouring and militating against these alternative constructions of s.52 are fairly evenly balanced. The scope of the prohibition imposed by s.52 is, however, governed not only by "the terms in which it is created" but by "the context in which it is found" (see Yorke v. Lucas [1985] HCA 65; (1985) 158 CLR 661, at p 668; and, generally, Bank of N.S.W. v. The Commonwealth, at p 285). In that regard, it is of particular significance that the words "trade" and "commerce" have "about them a chameleon-like hue, readily adapting themselves to their surroundings" (O'Brien v. Smolonogov (1983) 53 ALR 107, at p 113, quoting Federal Commissioner of Taxation v. Whitfords Beach Pty. Ltd. [1982] HCA 8; (1982) 150 CLR 355, at pp 378-379). Section 52(2) precludes limiting the scope of s.52(1) by implication drawn from the contents of other provisions of Pt V. Nonetheless, when the section is read in the context provided by other features of the Act, which is "An Act relating to certain Trade Practices", the narrower (i.e. the second) of the alternative constructions of the requirement "in trade or commerce" is the preferable one. Indeed, in the context of Pt V of the Act with its heading "Consumer Protection", it is plain that s.52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business. Put differently, the section was not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities. What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. … 1. In Williams v Pisano [2015] NSWCA 177, the Court of Appeal adopted the same approach when considered the meaning of the phrase 'in trade or commerce' as contained in ss 18 and 30 of the Australian Consumer Law. At [36] and [37], Emmett JA (Bathurst CJ and McColl JA agreeing) said the following: (citations omitted): 36 The terms "trade" and "commerce" are ordinary terms that describe the mutual communications, negotiations, verbal and written, bargains and performance that constitute commercial arrangements. The terms are not terms of art, but are expressions of fact and terms of common knowledge. While the particular instances that may fall within them will depend upon the varying phrases of development of trade, commerce and commercial communication, the terms are clearly of the widest import. They are not restricted to dealings or communications that can properly be described as being at arm's length, in the sense that they are within open markets or between strangers or have a dominant objective of profit making. 37 The phrase "in trade or commerce" operates to qualify the prohibitions in s 18 and s 30 against engaging in conduct of the specified kind. Those provisions were not intended to extend to all conduct, regardless of its nature, in which a person might engage in the course of, or for the purpose of, the overall trading or commercial business of that person. Section 18 and s 30 are concerned with the conduct of a person towards other persons, be they consumers or not, with whom the first person has or may have dealings in the course of trading or commercial activities of the first person that, of their nature, bear a trading or commercial character. Such conduct would include promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential consumers, be they identified persons or merely an unidentifiable section of the public. However, the reference to "conduct in trade or commerce" must be construed as referring only to conduct that is itself an aspect or element of activities or transactions that, of their nature, bear a trading or commercial character. The words refer to the central conception of trade or commerce, and not to the immense field of activities in which persons may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business. 1. In Kennett (supra), the Appeal Panel found that the services provided by the respondent, the Financial Ombudsman Service Pty Ltd, were not provided in circumstances of a trading or commercial character as required by s 79F of the FT Act. In this regard the Tribunal referred to the decisions of the Victorian Civil and Administrative Tribunal in David v Vodaphone [2006] VCAT 289 and Leung v Westpac [2016] VCAT 1367, where the above reasoning of the High Court in Concrete Constructions (NSW) was followed in finding that the services provided by the Telecommunications Industry Ombudsman in these matter had not been provided in trade or commerce within the terms of s 3 of the Fair Trading Act 1999 (Vic). 2. In Plath (supra), at [34], in considering whether the respondent Council was a 'supplier' of the impugned services within the terms of 79D of the FT Act, the Appeal Panel examined the nature and characteristics of those services. In that case the impugned services were the respondent's Waste Management and Onsite Sewerage Management System services for which the appellant was charged but not supplied. The Appeal Panel found that these services were in the nature of a governmental service intended to support the respondent's objectives outlined in the Local Government Act 1993 (NSW) and did not have the 'character of a commercial enterprise or a business character'. 3. In our view, the reasoning in Plath is consistent with Kennett (supra) in that the impugned 'services', the subject of a consumer claim brought under s 79E(1) of the FT Act, must be shown to have been provided, granted or conferred in circumstances that bear a trading or commercial character. Discussion 1. Contrary to the submissions of the respondent, the Tribunal's Notice of Decision does not contain a finding that the appellant was not a consumer for the purpose of Part 6A of the FT Act. Nor did the respondent seek to argue this before the Tribunal. However, from the transcript of the hearing before the Tribunal, the Tribunal Member appears to have adopted a view that the appellant was not a consumer because she had not paid for the services the subject of her claim. 2. In this regard we note s 79H(a) in Part 6A of the FT Act provides as follows: 79H Persons presumed to be consumers (cf CC Act 1998, s 4) For the purposes of this Part: (a) a person or body claiming to be a consumer is to be presumed to be a consumer until the contrary is proved, and (b) in any legal proceedings (including proceedings before the Tribunal), the onus of proving that a person or body claiming to be a consumer is not a consumer is on the party who seeks to establish that fact. 1. We accept that the respondent provided 'services' to the appellant in that it assisted her in meeting her obligations of being work ready. However, we are not satisfied, that these were provided, granted or conferred in trade or commerce. That is, we are not satisfied, on the material before the Tribunal at first instance, that the services provided to the appellant were of a nature that bore a trading or commercial character. On the contrary, as noted by the respondent, the services it provided to the appellant were provided within the statutory context of Part 2.12 of the Social Security Act. While we agree that the appellant did enter an agreement (the Job Plan) with the respondent, it was not an agreement made in a commercial setting, or one that bore a commercial character. The agreement was made because the appellant was required to enter an agreement of this kind under the terms of s 605 of the Social Security Act in order to continue receiving her new start allowance. The terms of that agreement were as prescribed under the terms of the Commonwealth Jobactive Deed as determined by the Secretary of the Department. 2. Hence, the services provided by the respondent to the appellant that were the subject of her claim before the Tribunal were not services within the meaning of s 79F(1) of the FT Act. As a consequence, her claim was not a 'consumer claim' falling within Part 6A of the FT Act. On this ground alone, the Tribunal had no jurisdiction to deal with her claim and the only order that could have been made was to dismiss her claim. 3. Accordingly, even if the appellant's appeal were to be allowed on a question of law, there is no prospects in her succeeding in her claim. 4. For completeness we will briefly deal with the appellant's claim in regard to the amendment of her 'government records'. First, a remedy in the form of an amendment of a record is not a remedy falling within paragraphs (a) to (d) of the meaning of 'consumer claim' in s 79E(1) of the FT Act. Hence, this remedy sought by appellant in her claim before the Tribunal was not a remedy available to her under a 'consumer claim' before the Tribunal. In the absence of the appellant being able to identify any other source of power that gave the Tribunal the power to make the order sought, the Tribunal was correct in finding that the Tribunal had no jurisdiction to make the amendment order sought. 5. We are satisfied, on the material before us, that the appellant has misunderstood the meaning of the words 'Payment For: MS ZOFIA SKIBA …' in the invoices she obtained under her freedom of information application. As explained by the respondent at the appeal hearing, the invoices are automatically generated in the Employment Support Services (ESS) electronic recording system. They represent an administration fee which is paid to jobactive providers such as the respondent. Such payments are provided for in cl 123 of the Jobactive Deed (Cth): see Attachment TC1 of Mr Corbett's affidavit. That clause provides that the Department of Jobs and Small Business (previously Department of Employment) will pay jobactive providers an administration fee, at the start of 'each Administration Period', for each 'Stream Participant'. 6. In his affidavit, Mr Corbett explained that the ESS electronic recording system automatically classifies job seekers as Stream A, B or C depending on their individual circumstances including the time they have been unemployed for and their individual support needs. He said these administration fees are automatically generated within the ESS system and are based on a jobseeker's time in the jobactive program. That is, this administration fee is not manually claimed or processed by the jobactive providers. 7. As noted in the tax invoices the subject of the appellant's claim before the Tribunal, the appellant was classified as Stream B. Based on the evidence of Mr Corbett, it is clear that the invoices do no more than record the administration fee that was paid to the respondent for services it provided or would provide to the appellant for the period recorded on the invoice (i.e. 6 months). They are not, as contended by the appellant, a record of a payment which the respondent had falsely claimed on her behalf and which should be paid to her or repaid to the Commonwealth. We emphasise that the appellant acknowledges that she was not entitled to receive those moneys. 8. It is difficult to understand why the appellant pursued this aspect of her claim given the evidence of Mr Corbett and the much earlier response she had received in regard to her amendment request under the Privacy Act 1988 (Cth). Conclusion 1. For the reasons set out above, while the appellant has provided an explanation for her delay in lodging her Notice of Appeal and the delay is not very lengthy, we find that it is not appropriate to extend time within which she is to lodge her appeal because her claim has no prospects of success. It is a claim over which the Tribunal has no jurisdiction and is misconceived. 2. Accordingly, it is appropriate to make an order formerly refusing to extend time and to also dismiss the appellant's appeal. As the respondent has sought an order for costs, it is also appropriate to make orders in this regard in the event it wishes to press that application. In light of our findings it is not appropriate to make any orders in regard to the appellant's foreshadowed application for costs. 3. Hence, we make the following orders: 1. Appellant's application for an extension of time within which to lodge her Notice of Appeal is dismissed. 2. Appeal dismissed. 3. Within 14 days the respondent may file written submissions in relation to the costs of the appeal. 4. Within a further 14 days the appellant may file submissions in response. 5. Any submissions filed in accordance with orders 3 and 4 should address whether the question of costs may be determined on the papers and without a hearing pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 September 2019