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Rana v Libraries Board of South Australia [2008] FCA 1552 (20 October 2008)
Last Updated: 21 October 2008
FEDERAL COURT OF AUSTRALIA
Rana v Libraries Board of South Australia [2008] FCA 1552
RANJIT SHAMSHER JUNG BAHADUR RANA v LIBRARIES BOARD OF SOUTH AUSTRALIA, HOUSING TRUST OF SOUTH AUSTRALIA and INTERCONTINENTAL CATERERS PTY LTD
SAD 91 OF 2008
MANSFIELD J
20 OCTOBER 2008
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY SAD 91 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: RANJIT SHAMSHER JUNG BAHADUR RANA
Appellant
AND: LIBRARIES BOARD OF SOUTH AUSTRALIA
First Respondent
HOUSING TRUST OF SOUTH AUSTRALIA
Second Respondent
INTERCONTINENTAL CATERERS PTY LTD
Third Respondent
JUDGE: MANSFIELD J
DATE OF ORDER: 20 OCTOBER 2008
WHERE MADE: ADELAIDE
THE COURT ORDERS THAT:
1. The appeal is 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 SAD 91 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: RANJIT SHAMSHER JUNG BAHADUR RANA
Appellant
AND: LIBRARIES BOARD OF SOUTH AUSTRALIA
First Respondent
HOUSING TRUST OF SOUTH AUSTRALIA
Second Respondent
INTERCONTINENTAL CATERERS PTY LTD
Third Respondent
JUDGE: MANSFIELD J
DATE: 20 OCTOBER 2008
PLACE: ADELAIDE
REASONS FOR JUDGMENT
1 On 12 April 2007, the appellant applied in the Federal Magistrates Court, supported by a statement of claim, for damages under ss 80 (sic), 82 and 87 of the Trade Practices Act 1974 (Cth) (the TP Act) for contraventions of s 52 of the Act, and for negligence and for breach of contract for "loss of shelter and reputation and aggravation of paranoid schizophrenia and diabetes type two", claiming $250,000.
2 That proceeding was summarily dismissed on 4 July 2008 pursuant to s 17A(2) of the Federal Magistrates Court Act 1999 (Cth) (the FM Act) and r 13.10(1) of the Federal Magistrates Court Rules (the Rules) with costs. Section 17A of the FM Act empowered a Federal Magistrate to summarily dismiss a proceeding if the claimant had no reasonable prospect of successfully prosecuting the proceeding, and r 13.10(1) relevantly was in the same terms.
3 This is an appeal from that decision.
4 The appellant was declared bankrupt on 13 August 2008. He appealed from the decision of that date, and judgment on that appeal is to be delivered at the same time as this appeal. For reasons which appear in that judgment: Rana v Chief of Army [2008] FCA 1554, that appeal is to be dismissed. However, it is common ground that, notwithstanding his bankruptcy, s 60(2) of the Bankruptcy Act 1966 (Cth) does not apply as s 60(4) of that Act preserves the appellant’s right to maintain the proceeding.
THE CLAIMS AGAINST THE RESPONDENTS
5 There were three separate claims made against each of the three respondents in the proceeding at first instance.
6 On 17 October 2005, the first respondent passed a resolution banning the appellant from being present in the State Library of South Australia precinct for a period of 12 months. The appellant challenged that decision in the Supreme Court of South Australia, and on 10 August 2006 that proceeding was discontinued when the Director of the first respondent set aside the ban. It is not necessary to inquire into the circumstances in which that came about.
7 The appellant was notified of the decision to concede the judicial review proceeding by letter from the Crown Solicitor for South Australia of 3 August 2006 addressed to the appellant at 1/25 Hackney Road, Hackney. On 10 August 2006, the Director of the first respondent wrote to the appellant at his former address at 62/40 Park Terrace, Gilberton informing him of that decision. The decision was formally recorded in the minutes of the Board of the first respondent on 21 August 2006. On 30 August 2006 the director of the first respondent wrote to the appellant concerning the amendments that had been made to the minutes, reflecting that the ban imposed upon the appellant had been lifted and enclosing a cheque for the $30 costs awarded to him. That letter was sent to the appellant at 63/40 Park Terrace, Gilberton. That was a wrong address.
8 As the Federal Magistrate recorded, it appears that the neighbour at 63/40 Park Terrace, Gilberton opened the envelope addressed to the appellant, wrote comments on the letter that were derogatory of the appellant, and then forwarded the letter to the appellant, or alternatively that the neighbour receiving the letter to the appellant then on-sent it to the appellant but again unfortunately to the wrong address at 2/25 Hackney Road, Hackney where that neighbour opened it and wrote comments derogatory of the appellant and then forwarded the letter to him. Consequently, the appellant came to learn of that letter and that it had been sent to the wrong address. A letter in the same terms was sent to the appellant at his correct address, namely 1/25 Hackney Road, Hackney, on 1 September 2006.
9 Subsequently, these proceedings were commenced on 12 April 2007. In the meantime, the Director of the first respondent had written to the appellant on 11 September 2006 apologising that the earlier letter of 30 August 2006 had been sent to the incorrect address, and that that was an inadvertent error, and that the first respondent had updated its records.
10 The second claim concerned the second respondent, the owner of the property at 1/25 Hackney Road, Hackney. The appellant was a tenant of the second respondent at material times. On 27 March 2007, the second respondent filed an application in the Residential Tenancies Tribunal of South Australia seeking to terminate the appellant’s residential tenancy agreement pursuant to s 90 of the Residential Tenancies Act 1995 (SA). Promptly, on 12 April 2007, the appellant commenced proceedings in the Federal Magistrates Court alleging that the second respondent was in breach of the tenancy agreement for having taken steps to have him evicted. In fact on the following day, 13 April 2007, the Residential Tenancies Tribunal dismissed the second respondent’s application and the appellant was not evicted.
11 The third claim against the third respondent concerned a nearby property at 23 Hackney Road, Hackney leased to the third respondent to conduct a catering business. The appellant lived next door to that property. The appellant claimed that certain members of the family who were apparently associated with the third respondent (not specifically identified) had allegedly made false complaints to the police and to the second respondent as his landlord, regarding the conduct of the appellant and suggesting that he was a troublemaker.
12 The appellant alleges that the first respondent, as a corporation engaged in trade or commerce, engaged in misleading and deceptive conduct contrary to s 52 of the TP Act as a result of inadvertently sending the letter of 30 August 2006 to the appellant to an incorrect address. The statement of claim alleges that the appellant had requested the first respondent not to send correspondence to that address of his former neighbour. It alleges that either the former neighbour added the comments to the bottom of the letter, or placed the letter at 2/25 Hackney Road, Hackney (rather than 1/25 Hackney Road, Hackney) and that the resident at 2/25 Hackney Road, Hackney then commented in the bottom of the letter with inflammatory and defamatory comments, and that the relationship between that resident, the second respondent and the third respondent "soured via rumours spread by" each of the occupants’ units at 2/25 Hackney Road and 63/40 Park Terrace. It is further alleged that the conduct of the first respondent caused the second respondent to apply to the Residential Tenancies Tribunal to terminate the contract of tenancy. Hence, he alleged that he was going to become homeless, would have disruption in his education, and that those events had aggravated his paranoid schizophrenia and diabetes type two. It also alleged that he had, as a result, been thought of as a troublemaker by tenants of nine other units at Park Terrace, Gilberton, as well as Unit 2/25 Hackney Road, Hackney and by the third respondent and "the whole world". The alternative basis of that claim was based upon the same conduct, namely inadvertently sending the letter of 30 August 2006 to the wrong address. It is alleged that the first respondent sent that letter "knowingly" when there was a police ban that the appellant was not to cause others to contact that tenant and knowing that his relationship would "collapse through this scandalous contact" and would trigger the second respondent to terminate the tenancy. The relationship which would collapse is not spelled out. Incorrectly, it also asserts that the first respondent had not apologised to the appellant for the "simple stupid mistake". It therefore alleges that the first respondent was in breach of a duty of care owed to the appellant by sending the letter to his "known enemies" and had thereby damaged his relationship with the second respondent and its other tenants and with the third respondent. It also alleged that as a result, he had aggravated his psychiatric and medical condition, reputation and privacy, comfort, peace and safety. It sought damages.
13 The second claim is purely a contractual one. The statement of claim alleges that the tenancy agreement was entered into on 27 May 2006, and that the tenancy relationship was going well until "the letter scandal broke out" and that the second respondent then applied for the appellant to be evicted. He disputed any conduct warranting his eviction. He complained that that action itself was in breach of his entitlement to enjoy the tenanted premise. He asserted that the particulars upon which the second respondent sought to have the Residential Tenancies Tribunal terminate his occupancy were false, namely calling police falsely to harass other tenants and members of the public, claiming that the letter from the State Library had been fabricated to harass its tenants, and taking photographs of tenants and the public and so invading their privacy. He claimed damages for aggravation of his medical and psychiatric conditions as previously expressed, together with damages for loss of shelter and reputation.
14 The claim against the third respondent is also discrete. It is brought under s 52 of the TP Act. It is alleged that the third respondent, his neighbour, between 27 May 2006 and the time of the proceedings being instituted, had made false complaints about him to the second respondent and its tenants, by calling police to harass "all stake holders of the commercial premises", by throwing rubbish at 23 Hackney Road surroundings, and asserting that he is a troublemaker. He contended that that conduct was likely to mislead or deceive the second respondent into believing that he is a troublemaker, as well as other members of the public and the police. He complained that that conduct had caused a loss of relationship between the appellant and the second respondent, and had thereby aggravated his medical and psychiatric conditions. He also complained that it made him vulnerable to losing his home, his education and his enjoyment of life. He claimed damages.
THE PROCEEDINGS BEFORE THE FEDERAL MAGISTRATE
15 The first respondent contended that there were three reasons why the claim against it should be summarily dismissed:
(1) that the first respondent was immune from the application of the TP Act (see s 2B) because it was part of the State of South Australia;
(2) that alternatively the first respondent enjoys the immunity of the Crown in relation to s 52 of the TP Act having regard to the relevant provisions of the Libraries Act 1982 (SA);
(3) in any event, the conduct of the first respondent complained of was not conduct in trade or commerce, so as to enliven the application of s 52 of the TP Act, and
(4) that the conduct engaged in was not misleading or deceptive within the meaning of s 52 of the TP Act.
16 The Federal Magistrate determined that Pt 5 of the TP Act, including s 52, did not apply to the Crown in right of the State of South Australia, and secondly that in any event the conduct of the first respondent complained of was not conduct in trade or commerce. His Honour also concluded that because the letter of 30 August 2006 contained no factual inaccuracy, that the letter had no capacity to mislead or to deceive or to induce error, and that the appellant’s complaint that the conduct had:
... a tendency or capacity to lead others like the former neighbours or website users to believe that the applicant is still banned from the library which in fact is false"
was simply not made out. Perhaps erroneously, the Federal Magistrate commented:
I cannot see in the pleadings relating to the First Claim that the applicant alleges that he was mislead or deceived by any conduct on behalf of the first respondent. From my knowledge of the matter I do not believe that it would be open for him to do so. On this basis also, i.e. conduct not misleading or deceptive, I conclude that the applicant has no reasonable prospect of successfully prosecuting the proceedings against the first respondent.
17 As to the alternative claim in negligence, there was a dispute as to whether a duty of care existed in relation to the sending of the letter, but that was not relied upon as a foundation for summarily dismissing the claim. However, it was argued that assuming the existence of a duty of care, the sending of the letter and the putting of the information on the website did not amount to the breach of any such duty of care. It was also argued that the conduct could not have caused the alleged loss, and that the neighbour’s act of opening the incorrectly addressed letter, writing on it and sending it onto the appellant, were new events and not caused by the first respondent’s conduct.
18 The Federal Magistrate concluded that it was "unlikely in the extreme" that there was a breach of any duty of care between the appellant and the first respondent, and that the appellant’s real complaint could only be with the conduct of the unintended recipient of the letter. His Honour noted the pleading that, by sending the letter to the appellant’s known enemies, the first respondent had damaged the appellant’s, relationship with the second respondent and its tenants and his neighbour, the third respondent, so that he is now known as a troublemaker. The Federal Magistrate concluded that the appellant was in reality complaining about the neighbour’s action after receiving the letter. Consequently, his Honour concluded that there was no reasonable prospect of the claim against the first respondent being successfully prosecuted, either because the relevant actions were not those of the first respondent or because the recipient’s actions broke the chain of causation after the suggested negligent act of the first respondent.
19 The claim against the second respondent was for failing to provide peace, comfort and privacy, that is failing to provide quiet enjoyment of the tenanted premise, contrary to s 65 of the Residential Tenancies Act 1995 (SA). The second respondent contended on the summary dismissal application that the statement of claim did not identify any breach of contract by the second respondent, and in any event the Court had no jurisdiction to entertain that claim.
20 So far as the claim against the third respondent is concerned, his complaints in the statement of claim were particularly poorly expressed and did not identify particular conduct of any particular person within the third respondent. The Magistrate concluded:
Although the applicant pleads that the statements were made "in trader and [sic] commerce" no facts are pleaded from which it can be concluded that the statements were so made. Taking the facts at their most favourable from the applicant’s point of view as detailed earlier in these reasons, the applicant has no reasonable prospect of successfully establishing that the statements complained of were made by someone on behalf of the third respondent or that they were made in trade or commerce. The inevitable eventual finding if this matter were to go to trial is that this was simply a dispute between neighbours who were individuals.
THE GROUNDS OF APPEAL
21 There are 10 grounds of appeal. Some of them multi-faceted.
22 Like the statement of claim, the notice of appeal is hard to follow, and is repetitive to a significant degree. Moreover, it is assertive in a way which makes it hard to understand precisely the error which the appellant seeks to make out.
23 Some of the grounds of appeal relate to the Federal Magistrate’s general approach (grounds 4, 5, 1(iii) and 10); some relate to the specific findings and conclusions relating to the first respondent (grounds 1, 5, 6, 7); some relate to the second respondent only (grounds 2 and 8); and some relate to the third respondent only (grounds 3 and 9). I shall consider them in blocks.
CONSIDERATION
24 The first ground of appeal contends that the Federal Magistrate, in criticising the quality of the statement of claim did not recognise that its "content and context" was based upon judicial comments in another matter. Then it complains that the matter was dismissed without the respondents having adduced evidence or raised a defence on reasonable grounds. And then it complains that the respondents relied on hearsay materials and did not adduce the source of their own affidavits. Then it asserts a significant miscarriage of justice.
25 The criticisms of the pleading made by the learned magistrate were, in my view, entirely warranted. As his Honour said, there were 57 paragraphs, but they were not consecutively numbered but numbered in blocks commencing each block with the number one. The content is confusing and does not state in an unambiguous fashion the necessary facts to establish the causes of action. In my view, the Federal Magistrate reliably extracted from that document the nature of the allegations and the details of the allegations made by the appellant.
26 The general attack upon the judgment complains that the Magistrate did not apply the proper test. In my view, the relevant principle governing summary dismissal applications have been properly described by his Honour. No particular basis of error was identified or shown to exist.
27 In the general grounds, it is also asserted that the Federal Magistrate took into account respondent’s material which was both "hearsay" and which should not have been taken into account in determining a summary dismissal application. The short answer to that submission is that his Honour did not do so in either respect. He took the view of the facts, as pleaded, most favourable to the appellant. It is said by the appellant that the Federal Magistrate relied upon other material, referring to material in the Federal Magistrate’s reasons at [8] and [10]. Those paragraphs simply recite the material provided to the Federal Magistrate by the respondents and follow a recital of the material provided to the Federal Magistrate by the appellant. The only material provided by the respondents, other than submissions (to which his Honour was entitled to have regard) are two affidavits relating to the liability of the third respondent. There is nothing in the Federal Magistrate’s reasons which indicate that he had regard to that material, or that he used that affidavit material for any purpose leading to the summary dismissal of the claim against the third respondent.
28 Another assertion is that the Magistrate overlooked all of the appellant’s submissions, in particular in considering whether the first respondent could be liable to the appellant for a contravention of s 52 of the TP Act. The short answer is that his Honour did not overlook that material, but addressed it. In any event, for reasons to which I refer below, in my view the Federal Magistrate erred in determining on a summary judgment application that s 52 of the TP Act (or more specifically the analogue of s 52 of the TP Act) contained in the Fair Trading Act 1987 (SA)), could not apply to the conduct of the first respondent. It is a separate question whether, although that legislation may have applied to the first respondent, its conduct was in trade and commerce and its conduct, as alleged, could have amounted to misleading and deceptive conduct for the purposes of the relevant provision. I refer to those matters below when dealing with the grounds of appeal concerning the first respondent.
29 Finally, it is said in the general claims that the appellant was not given an opportunity to amend his statement of claim or to put on additional evidence. In my judgment, for the reasons given below, there was no point in additional evidence. The appellant has since identified such additional evidence as he would have wished to have put on, and it could not have altered the conclusion which the Magistrate reached. There was no point in considering the further amendment of the statement of claim, because, as against the first and second respondents, the conduct alleged to have amounted to the causes of action was assumed to have occurred and further amendment would not have altered that conduct. If an amendment were allowed, it would have been by alleging different conduct, and so a different cause of action, whether based on a contravention of s 52 of the TP Act or otherwise. Moreover, the additional material now relied upon by the appellant, which is in fact replicated in perhaps a less obvious form in the material before the Magistrate in any event, goes to whether that conduct of the first respondent complained of was in trade and commerce, and was misleading or deceptive. The pleading was made, and the conduct said to amount to trade and commerce by the first respondent was pleaded. If the applicant had a different set of facts upon which he wished to allege misleading or deceptive conduct, he is not precluded from making a separate claim in respect of that conduct.
30 I turn to consider the claims against the first respondent.
31 As I mentioned above, in my view it was inappropriate for the Magistrate to determine on a summary judgment application that the TP Act could not apply to the first respondent and that, therefore, the claim must be summarily dismissed. The short answer to that submission is that s 56 of the Fair Trading Act 1987 (SA) is in relevantly the same terms. Section 56 of the Fair Trading Act refers to "a person" rather than a corporation but is otherwise in the same terms as s 52(1) of the TP Act, namely that:
A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
32 The appellant also referred in his pleading to s 51A of the TP Act. That relates to representations with respect to future matters, and in a practical sense imposes on the representor the obligation of showing that the representor did have reasonable grounds for making the representation, otherwise the representation will be taken to be misleading. That section too has its analogue in s 54(1) of the Fair Trading Act. In any event, it does not apply on the applicant’s own allegations in the statement of claim, because the conduct alleged is said to constitute representations as to an existing state of fact, and not to a future matter. In those circumstances, it was not a matter for the respondents to have any onus of proving anything, or to adduce evidence relevant to the summary dismissal application.
33 Section 4 of the Fair Trading Act provides that the Act binds the Crown in right of the State.
34 In my judgment, however, the Federal Magistrate did not fall into error in concluding that the sending of the letter of 30 August 2005 was not in trade or commerce by the first respondent. The Federal Magistrate correctly identified the scope of s 52 (and s 56 of the Fair Trading Act) by reference to the passage in the majority judgment in the High Court of Mason CJ, Deane, Dawson and Gaudron JJ in Concrete Constructions Pty Ltd v Nelson (1990) 169 CLR 594 at 604. In particular, their Honours said that:
[T]he 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.
Even if it be assumed that the first respondent, by some of its activities, engages in trade or conduct (for example, as the appellant asserts, by providing assistance with self-service copying by customers, and meeting orders for copying of photographic and other materials and charging for those services, and offering the opportunity to use computer programs to inspect overseas data bases and on line data bases, all of which was proved before the Federal Magistrate by the appellant exhibiting through affidavit materials issued by the first respondent as to the services it provided), its conduct in reversing a decision to suspend the appellant from the use of the library, and to notify him of that decision, was not itself an activity in trade or commerce. Its conduct was in fulfilment of its functions for the public benefit to provide library services under the Libraries Act 1982 (SA) and to regulate and control the access of members of the public to those services and it did so as the instrument of the State. Its activities in that regard did not have a trading or commercial character. I do not need to determine whether its other activities might arguably constitute trade or commerce on the part of the first respondent.
35 In addition, in my view, the decision of the Federal Magistrate that neither the contents of the letter nor the sending of the letter was misleading or deceptive in any relevant way to the appellant’s claims was also clearly correct. The content of the letter is not criticised by the appellant as being misleading or deceptive. His only complaint is that it was sent to the wrong address. Consequently, his only complaint is that the address on the letter was not his address.
36 The evidence points clearly to the fact that the recipient of that letter (and the pleaded allegations make the point that the recipient of that letter) recognised that the letter was sent to the appellant and not to the occupant of the premises. The fact of the letter being misaddressed did not mislead or deceive the recipient of the letter about the addressee of the letter. It is simply a case of the letter having gone to the wrong address, and the person living at that address (or perhaps at the subsequent address), without being mislead, choosing to open it and to make some communication on it before it eventually was received by the appellant.
37 The appellant himself was not mislead or deceived by the misaddressed letter.
38 In my judgment, neither s 52 of the TP Act nor s 56 of the Fair Trading Act applied to that conduct.
39 As I have noted, the second respondent did not dispute that it was arguable that it owed a duty of care to the appellant in sending out the letter of 30 August 2008. Its contentions were that there was no reasonable prospect of the appellant showing that sending the letter to the wrong address was in breach of the (assumed) duty of care, or that any breach of that duty could have caused loss and damage to the appellant as he alleges.
40 In my judgment, the Federal Magistrate’s analysis for concluding that the inadvertent sending of the letter to the wrong address could not have been in breach of the (assumed) duty of care requires further consideration. It should be assumed that the placing of the wrong address on the letter was careless. A duty of care does not exist in the abstract, it exists because of a particular factual situation – generally a relationship – between two persons and entities by reason of which conduct (or sometimes a failure to act) on the part of one of them may cause detriment to the other. Of course, that is a gross oversimplification. But the point is that the (assumed) duty of care existed because conduct of the second respondent in breach of it may have caused detriment to the appellant. On the other hand, the (assumed) duty of care only imposes on the second respondent an obligation to take reasonable care to protect the appellant from the type of harm which is reasonably foreseeable; if no harm is foreseeable by certain conduct, then there is no reason why the law should ignore liability in tort for engaging in it. Those comments are very general in nature.
41 But I think they identify why the Federal Magistrate regarded the negligence claim as having no reasonable prospect of success. And why I agree with that conclusion.
42 In sending a letter to the appellant that the record of his suspension had been corrected in its records, what foreseeable harm could result to the appellant if erroneously that letter was misaddressed? The additional context was that the appellant sought the correction of those records, and that the corrected records be publicly available on the second respondent’s website. The letter, though misaddressed, was directed to the appellant (and, as the appellant recognised, was so understood at the address or addresses where it was received). And it was accurate and conveyed information which the appellant wanted to have conveyed. It did not convey any information adverse to the appellant.
43 Consequently, if the letter was carelessly addressed (as I assume), what foreseeable harm or potential harm was there to the appellant? It was foreseeable that the misaddressed letter might be opened by the recipient, notwithstanding its addressee (the appellant) was clear or that the misaddressed letter might never find its way to the appellant. The latter did not occur. If it was opened by the recipient, it would not convey information about the appellant which was adverse to him or which was not publicly available. It is not suggested by the appellant that he did not receive the $30 to which he was entitled. The handwritten comments on the letter, in vehement and offensive terms, complain of the appellant using the wrong address and threaten that further correspondence to the appellant at that address will not be passed on. They do not use the information in the letter as indicating something adverse about the appellant. Nor could the contents of the letter do so. So the detriment to the appellant, on the evidence, was to provide the recipient with the opportunity to convey that to the appellant. There is no basis for any finding that its consequences, or potential consequences, extended beyond that.
44 In my view, the Federal Magistrate was correct in those circumstances to conclude that, whilst the (assumed) duty of care may have been breached to have caused loss to the appellant (eg if he did not receive the $30 costs payment), it was not breached merely by being misaddressed and by providing the recipient to make the comments on it which were made before it was returned to the appellant. The recipient’s actions were not those in respect of which the (assumed) duty of care existed, because it was not reasonably foreseeable that the recipient would thereby convey to the appellant the unpleasant views apparently held by the appellant which could not otherwise have been conveyed to him so as to cause him the loss he alleges. In particular, to address the allegations in the Statement of Claim, it was not reasonably foreseeable that the misaddressed letter may have damaged his relationship with the second respondent, or its other tenants or the third respondent, so as to have caused him loss and damage. The only relationship it may have affected is that with the recipient who wrote the comments on that letter, and it is clear that that relationship was not one which was relevantly worsened by the misaddressed letter.
45 Accordingly, the Federal Magistrate did not err in deciding to summarily dismiss the negligence claim against the first respondent.
46 Curiously, the second ground of appeal complains of paras 19-20 of the reasons, saying that they were not supported by evidence. Paragraph 19 simply records the fact of the commencement of the proceedings against the second respondent on 12 April 2007 for alleged breach of the tenancy agreement and for taking steps to have him evicted. That is exactly what the appellant did allege. Paragraph 20 records that on 13 April 2007, the Residential Tenancies Tribunal dismissed the application, and the appellant was not evicted. That is incorrect only on the basis that the Tribunal decision was made on 19 April 2007. The exhibits to the appellant’s affidavits at first instance include the order of the Tribunal made on 19 April 2007 to that effect, as well as noting that the hearing took place on 13 April 2007. They also show that the date of the application of the second respondent to the Residential Tenancies Tribunal was 23 March 2007. The minor date error is insignificant.
47 The attack upon the decision of the Magistrate concerning the second respondent is otherwise partly based upon a misapprehension. That is because, contrary to the claim in the notice of appeal, the Magistrate did not decline to exercise jurisdiction in respect of the breach of contract claim against the second respondent. His Honour simply found that, on the allegations against the second respondent, it had not contravened any provision of the residential tenancy agreement by making the application to the Residential Tenancies Tribunal. It appears that the grounds of the application were not made out to the satisfaction or the Tribunal or having regard to the facts, in the exercise of its Tribunal’s discretion, the application was unsuccessful. But that is not to the point. It is a simple question of deciding whether an application under the Residential Tenancies Tribunal Act 1995 to terminate a residential tenancy could amount to a contravention of the residential tenancy itself. In my view, his Honour was correct in deciding that it could not, for the reasons he gave. I shall not repeat them.
48 It is not necessary to consider the second respondent’s further contentions that the claim should have been dismissed in any event against the second respondent because the Magistrate lacked the jurisdiction to entertain it.
49 I turn to consider the grounds of appeal concerning the third respondent.
50 It is first necessary to note that it is factually incorrect to assert, as the appellant did, that the Federal Magistrate summarily dismissed the proceedings against the third respondent without any request on the part of the third respondent to do so.
51 The ground of appeal particularly concerning the third respondent is simply that the Federal Magistrate did not properly consider the evidence, when addressing the claimed contravention of s 52 of the TP Act, or of s 56 of the Fair Trading Act to the extent to which it was necessary to invoke that alternative act. As jurisdiction was not in issue, it is not necessary to turn to that question. In either event, the conduct pleaded had to be conduct in trade or commerce. The Federal Magistrate correctly decided that the facts pleaded, as his Honour said taken at their most favourable, did not demonstrate any reasonable prospect of successfully establishing that they were engaged in by someone on behalf of the third respondent, or that they were made in trade or commerce. It was simply, as his Honour said, a dispute between neighbours who were individuals.
52 In my view, that conclusion was amply available on the material before the Magistrate.
53 For those reasons, I conclude that the appeal should be dismissed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.
Associate:
Dated: 20 October 2008
Counsel for the Appellant: The appellant appeared in person
Counsel for the First and Second Respondents: M Wait
Solicitor for the First and Second Respondents: Crown Solicitor for South Australia
Counsel for the Third Respondent: A Dal Cin
Solicitor for the Third Respondent: Minicozzi Lawyers
Date of Hearing: 8 October 2008
Date of Judgment: 20 October 2008
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