Schaefer v Guthrey [1999] FCA 699 (24 May 1999)

Last Updated: 23 June 1999

FEDERAL COURT OF AUSTRALIA

Schaefer v Guthrey [1999] FCA 699

Trade Practices Act 1974 (Cth)

Fair Trading Act 1987

Federal Court Rules O 52 r 18

ERIC JOSEPH SCHAEFER v LLOYD GUTHREY, CHAIRMAN, STATE HOUSING COMMISSION T/as HOMESWEST

WG 180 of 1998

FRENCH, KIEFEL AND MANSFIELD JJ

24 MAY 1999

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG180 OF 1998

BETWEEN:	ERIC JOSEPH SCHAEFER Appellant
AND:	LLOYD GUTHREY, CHAIRMAN, STATE HOUSING COMMISSION T/as HOMESWEST Respondent
JUDGES:	FRENCH, KIEFEL and MANSFIELD JJ
DATE OF ORDER:	24 MAY 1999
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG180 OF 1998

BETWEEN:	ERIC JOSEPH SCHAEFER Appellant
AND:	LLOYD GUTHREY, CHAIRMAN, STATE HOUSING COMMISSION T/as HOMESWEST Respondent

JUDGES:	FRENCH, KIEFEL and MANSFIELD JJ
DATE:	24 MAY 1999
PLACE:	PERTH

EX TEMPORE REASONS FOR JUDGMENT

FRENCH J:

1 These proceedings began, on 15 December 1997, with an application filed by Eric Joseph Schaefer as applicant, naming the Chairman of the State Housing Commission trading as Homeswest, as the respondent. Mr Schaefer is a tenant of Homeswest. The application asserted by way of complaint direct against Homeswest, the following:

"HOMESWEST, PRINTING-UP AND ISSUING, "DEMANDS FOR PAYMENT" FOR WATER CONSUMPTION, WITHOUT BEING A LICENSED, LEGALLY AUTHORIZED, WATER SUPPLY/BILLING AUTHORITY. LEAVING THEIR "DEMANDS FOR PAYMENT" WITH NO LEGAL SUPPLY, NO LEGAL TRADE. TRADE PRACTICES ACT 1974 - "OBJECTS OF THIS ACT" 2 "FAIR TRADING" ACQUISITION, SUPPLY AND RE-SUPPLY - 4c - (b) (d) (f) RE - SUPPLY (ii)."

Then under the heading "Details of Claim" it was stated:

"On the grounds stated in the accompanying affidavit or statement of claim the applicant claims:

1. HOMESWEST TO IMMEDIATELY STOP PRINTING-UP AND ISSUING THEIR OWN "DEMANDS FOR PAYMENT" FOR WATER CONSUMPTION.

2. HOMESWEST TO RETURN ALL MONIES COLLECTED THROUGH THE USE OF THEIR, PRINTED-UP AND ISSUED, WATER BILLS.

OR AS DIRECTED BY LAW."

There was additionally some interlocutory relief claimed.

2 The matter came on before Farrell JR on a motion to dismiss the application as showing no reasonable cause of action under O 20 r 2 of the Federal Court Rules and on 15 May the Judicial Registrar made an order in the following terms:

"The application is dismissed pursuant to Order 20 rule 2 of the Federal Court Rules on the grounds that the application disclosed no reasonable cause of action."

On 22 May he ordered that Mr Schaefer pay to the respondent the cost of those proceedings fixed at $1,300. Reasons for decision, edited from the transcript, were subsequently published and they adequately set out the nature of the grievance advanced by Mr Schaefer, the relevant sections of the Metropolitan Water Supply, Sewerage and Drainage Act 1909 , and the provisions of the tenancy agreement between Mr Schaefer and Homeswest.

3 The gravamen of Mr Schaefer's complaint is that Homeswest, which has sent to him, as a tenant, bills for water consumption pursuant to clause 2.5 of the tenancy agreement, is not authorised by law to do so, the relevant authority being limited to licensed water suppliers pursuant to State legislation. That is a grievance which he has pursued through the Local Court and in other forums.

4 Mr Schaefer sought review of the Judicial Registrar's decision before Tamberlin J, and on 26 November 1998 in an extempore judgment Tamberlin J said simply:

"In this matter, I have considered the submissions which have been advanced by both parties. I have paid particular attention to those advanced by Mr Schaefer in respect of this application for review under section 18AC of the Federal Court of Australia Act 1976 (Cth) of the decision of Judicial Registrar Farrell of 22 May 1998.

I am satisfied that the application as brought by Mr Schaefer does not disclose any reasonable cause of action and I am not, therefore, persuaded that there has been any reviewable error committed by the judicial registrar in the reasons for decision, which were under contest this afternoon. Accordingly I dismiss the application for review."

5 In a notice of appeal filed on 10 December 1998 Mr Schaefer appealed from the judgment of Tamberlin J on the following stated ground:

"2. THIS APPEAL IS SOUGHT ON THE GROUNDS THAT, NEITHER THE RESPONDENT, NOR JUSTICE TAMBERLIN PRESENTED ANY, APPARENT, NEW RELEVANT REASONS AT THE "REVIEW", AS TO WHY FEDERAL COURT CASE NO. WAG 155 of 1997 SHOULD NOT PROCEED TO "TRIAL", AS APPLIED FOR."

That was the ground advanced by Mr Schaefer. The orders he sought were the "repeal" of the summary dismissal order by Tamberlin J and to allow his case in this Court to proceed to trial. The respondent, however, has moved to have the appeal dismissed as incompetent pursuant to O 52 r 18 of the Federal Court Rules.

6 A preliminary point taken by the respondent is that this is a case in which the judgment appealed from is interlocutory in character and therefore Mr Schaefer would require leave to appeal against that decision. There was authority referred to by counsel for the respondent to support that characterisation, although the matter is obviously not without controversy and, speaking for myself, I must say it would be a difficult proposition for the users of the Court to understand that a decision which dismisses their application should be treated as anything other than final for these purposes.

7 However, this is a matter on which it is not necessary to express a concluded view at this time because whether or not the decision appealed from is interlocutory and whether or not leave is required, the appeal is, in my opinion, incompetent. It is incompetent in the sense that the notice of appeal does not set out any ground which invokes the appellate jurisdiction of this Court or presents any intelligible basis for its invocation. It is sufficient simply to refer to the terms of the ground of appeal to make that plain.

8 As was pointed out to Mr Schaefer in the course of argument, an appeal from a judgment of a single judge in the ordinary course is an appeal which deals with the matter on the material that was before the judge and which seeks to identify some error of law or fact on the part of the judge. It is not, as Mr Schaefer seemed to suggest at one stage, a more thorough and in-depth investigation into the matter of his application. The nature of the appeal process does seem to have been misconceived. It may not be necessary to say so, but I must say that I have no doubt that, in any event, the decision made by Tamberlin J was correct and that the decision of the Judicial Registrar was correct.

9 Mr Schaefer has endeavoured to invoke the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 as the basis for his application against Homeswest. He has invoked those Acts in a way which does not identify any breach of them by Homeswest which would give rise to a cause of action. In particular, he seems to rely very heavily on the general meaning of the word "trade". He contends that because Homeswest is engaged in a trading activity, unauthorised action on its part in issuing water consumption notices or bills is caught up by the definition of trade and somehow constitutes a breach of the Act. That, of course, does not follow. One has only to state the argument to make it plain.

10 I have no doubt of Mr Schaefer's sincerity in pursuing this complaint, which he has pursued through a number of jurisdictions, but the basis upon which he pursues it here is misconceived. There is no basis disclosed in anything that he has written or said for the existence of a cause of action under the Trade Practices Act or the Fair Trading Act. He relies upon a characterisation of the water consumption notices as a bill of exchange, which again as I pointed out to him in the course of argument, is misconceived. For those reasons, in my opinion, there was never any cause of action. The notice of appeal itself is misconceived and the appeal should be dismissed as incompetent.

Kiefel J

11 I agree. The notice of appeal does not identify any error. The decision of Tamberlin J is, in any event, clearly correct.

Mansfield J

12 I also agree with the reasons for decision given by the Learned Presiding Judge.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment herein of the Honourable Justices French, Kiefel and Mansfield.

Associate:

Dated: 24 May 1999

	Mr E.J. Schaefer appeared in person
Counsel for the Respondent:	Mr N.C. Monahan
Solicitor for the Respondent:	Crown Solicitor for the State of Western Australia
Date of Hearing:	24 May 1999
Date of Judgment:	24 May 1999