Blampain v Telstra Corporation
[2020] WADC 166
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BLAMPAIN -v- TELSTRA CORPORATION [2020] WADC 166
CORAM: LEVY DCJ
HEARD: 20 JULY 2020
DELIVERED : 23 DECEMBER 2020
FILE NO/S: APP 26 of 2020
BETWEEN: RENE ALCIDE BLAMPAIN
Appellant
AND
TELSTRA CORPORATION
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE AYLING
File Number : KAL/CTC/152/2019
Catchwords:
Misleading or deceptive conduct in trade or commerce - False or misleading representations - Unconscionable conduct - Breach of contract - Hearsay - Appeal from Magistrates Court - Leave to appeal - Evidence
Legislation:
Australian Consumer Law
Evidence Act 1906 (WA)
Magistrates Court Civil Proceedings Act 2004 (WA)
Result:
Leave to appeal granted
Appeal allowed in relation to Ground 3
Nominal damages awarded in favour of the appellant
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr J Winton |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Ellery Brookman |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
BGC Construction Pty Ltd v Elvidge Pty Ltd [2005] WADC 103
Bonham Carter v Hyde Park Hotel Ltd (1948) 64 TLR 177
Butler v Bennett [2007] WADC 107
CDJ v VHA [1998] HCA 67
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Eley v Town of Victoria Park [2014] WASC 103
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
Gipp v The Queen (1988) 194 CLR 106
Hoskins v Armstrong [2008] WADC 168
Italiano v The State of Western Australia [2012] WASCA 260
Jenyns v Public Curator (Qld) [1953] HCA 2; (1953) 90 CLR 113
Johnson v Denwest Nominees Pty Ltd (t/as Cunerdin Roadhouse) [2017] WASCA 200
Lackovic v Insurance Commission of Western Australia [2006] WASCA 38
Lassock v Seidner [2013] WASC 94
Michael Kellaway International Pty Ltd v Shark Bay Airport Pty Ltd (Unreported, WASCA, Library No 970604, 13 November 1997)
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357
Patrick Jebb as trustee for the Trafalgar West Investments Trust V Superior Lawns Australia Pty Ltd [2019] WASCA 208
Regan v Gibson [2010] WADC 144
Saunders v The Public Trustee [2015] WASCA 203
Serventy v Commonwealth Bank of Australia [No 2] [2016] WASCA 223
Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389
LEVY DCJ:
This is an appeal brought by René Alcide Blampain (the appellant) following the dismissal of his claim against Telstra Corporation Limited (the respondent) by a magistrate sitting at Kalgoorlie.
The appellant was unrepresented in the proceedings below and on the appeal. At the time of the appeal he was 79 years old.[1] He is not a native English speaker. He also has hearing difficulties.
[1] Exhibit 1.
The appellant originally filed a general procedure claim against the respondent on 10 April 2019 claiming damages arising out of the respondent's alleged failure to provide him with an operational internet service. The claim was essentially brought against the respondent under four separate heads, namely:
(a)misleading or deceptive conduct in trade or commerce, in breach of s 18 of the Australian Consumer Law (ACL);
(b)false or misleading representations about the supply of services in trade or commerce, in breach of s 29 of the ACL;
(c)unconscionable conduct in connection with services in trade or commerce, in breach of s 21 of the ACL;
(d)breach of contract.
The only witnesses at the hearing before the learned Magistrate were the appellant and Katherine Elizabeth Houghton, a lawyer employed by the respondent. In addition to that evidence, various exhibits were tendered by the parties.
There are three grounds of appeal. They are (as set out in the appeal notice filed by the appellant on 5 May 2020):
1.The Magistrate did not allow adequate time for the [appellant] to review the evidence resulting from the documents subpoenaed by the [appellant].
2.The Magistrate ignored the effect on the proceedings and on the [appellant's] case of the destruction of documents by the [respondent] which resulted in an unsafe judgement [sic] in favour of the [respondent].
3.The Magistrate admitted the [respondent's] hearsay evidence after ignoring two of the [appellant's] request [sic] for subpoena of documents that would have proved the incorrectness of the [respondent's] hearsay.
In no way criticising the appellant who is not legally trained, the grounds of appeal drafted by him are difficult to understand. Much of the appellant's written and oral submissions were difficult follow.
Unsurprisingly, the lack of precision and clarity in the appellant's grounds of appeal caused counsel for the respondent on the appeal to have difficulty in responding to the issues raised by him. This appeal and the hearing below are examples of the difficulties faced by courts in this jurisdiction where one or more of the parties is unrepresented.
The appellant also requires the court's leave to proceed as the appeal was brought out of time.
Overview of the appellant's original claim brought against the respondent in the court below
The appellant claimed that, relying upon the respondent's advertising for its ADSL broadband service and after making appropriate enquiries as to its availability, he moved to a new property taking up a lease so that he could enjoy the anticipated internet service.
The appellant subsequently made arrangements for a telephone and an ADSL broadband internet service (ADSL bundle) to be connected at the new property. The appellant claimed that although the telephone service was connected to his new property, the broadband internet service was not.
The appellant claimed that, but for the respondent's representation that it could provide an internet service at his new address, he would not have moved.
The claim against the respondent was brought only in relation to the respondent's alleged failure to provide him with an internet service. The appellant claimed that he had suffered damages totaling $100,590.17, but reduced the claim to $75,000 to comply with the Magistrates Court's jurisdictional limit.[2]
[2] Appellant's Statement of General Procedure Claim filed 24 May 2019.
Overview of the respondent's defence at the hearing before the learned Magistrate
There is no dispute that the appellant entered into an agreement with the respondent for the supply of an ADSL bundle including internet service at the new property.
The respondent's position was that it provided the appellant with an internet service and therefore did not breach its contract with him to supply an internet service.
Furthermore, since it provided an internet service to him at the property, the respondent denied it breached s 18 or s 29 of the ACL. The respondent denied that it engaged in misleading or deceptive conduct, or made false or misleading representations about its ability to provide an internet service or its quality.
In relation to the appellant's claim of unconscionable conduct against the respondent, since it had taken all reasonable steps to provide him with an internet service and to assist him with the complaints that he subsequently lodged about the respondent's alleged failure to do so, the respondent denied that it had acted unconscionably.
The respondent also submitted that, in any event, the appellant suffered no loss as all charges on his account relating to both the telephone service and internet service were reversed. In addition, the respondent provided the appellant with gratuitous compensation in the sum of $1,911.80.
The respondent also called in aid various clauses contained in a 33 page document entitled 'Our Customer Terms, General Terms for Consumer Customers',[3] particularly cl 8.3(c) and cl 8.3(d) which purport to exempt the respondent from liability for any loss to the extent that it had resulted from the appellant's failure to take reasonable steps to avoid or minimise his loss.
[3] Exhibit 8.
Facts not in dispute before the learned Magistrate
On 13 February 2017, the appellant made arrangements with the respondent for a telephone and internet service (ADSL bundle) to be connected at his new property.
At the time of applying for the ADSL bundle, the appellant provided an email address (TPG email address) which he listed as his preferred contact method.
Following receipt of the application, the respondent sent a modem to the appellant's address. Instructions for the connection of the service were provided by way of an email sent to his TPG email address, including a username and password[4] for the setup of the internet service and access to the appellant's account.
[4] Appellant's evidence (cross-examination), ts. 27.
On either 13 or 14 March 2017,[5] a technician engaged on behalf of, or employed by, the respondent attended the appellant's new property for the purposes of setting up both the telephone and internet services. The appellant was provided with a telephone number being (08) XXXX X601.[6]
[5] There appeared to be some dispute as to whether the technician attended the appellant's property on 13 or 14 March 2017, however it matters little as to which of these two dates the technician attended.
[6] The telephone number has been anonymised.
There was no dispute that when the technician attended the property he connected the telephone service.
Essential matter in dispute
What was in dispute and lay at the heart of the appellant's claim was whether the internet service was connected.
The respondent's defence was that the technician not only connected the internet service, but on the day he attended tested the internet connection and found that it was working. The respondent claims that the testing done that day proves that it was connected and working.
Appeal out of time - leave to appeal required
Section 40(3) of the Magistrates Court Civil Proceedings Act 2004 (WA) (MCCPA) provides that an appeal cannot be commenced more than 21 days after the date of judgment unless the court gives leave to do so. The rules are in place to preserve finality in court proceedings and promote the prompt resolution of legal disputes. Consequently, where an application to appeal out of time is brought, the court should be slow to grant leave unless justice requires it. The allowance of such applications is not automatic.[7]
[7] Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458.
The learned Magistrate's decision in the matter was delivered on 20 March 2020. Consequently, the last day for appealing the decision was 10 April 2020. The appeal to this court was not filed until 5 May 2020.
Whilst strictly speaking the appeal was filed 25 days late, it is not the case that the appellant did nothing in the intervening period.
The appellant filed an affidavit in support of his application for leave to appeal out of time.[8] That affidavit, filed on 5 May 2020, reveals the following:
1.The appellant first attempted to lodge a notice of appeal with the Court of Appeal, Supreme Court of Western Australia, on 8 April 2020. The Court of Appeal is quite obviously the wrong jurisdiction.
2.On 9 April 2020, by email, a customer service officer at the Court of Appeal informed the appellant that it did not have jurisdiction to deal with his appeal as filed.
3.On 9 April 2020, the appellant attempted to file a new notice of appeal with the Court of Appeal.
4.By email dated 14 April 2020, a customer service officer again informed the appellant that the Court of Appeal had no jurisdiction to deal with the matter.
5.Issues relating to the COVID‑19 pandemic had caused difficulties for him in relation to filing relevant documents.
[8] District Court Rules 2005 (WA) r 51(2).
The respondent accepts that the appellant did, within time, attempt to appeal. However, the respondent opposes the application for leave to appeal on the basis that whilst the initial period between 20 March 2020 and 14 April 2020 has been explained, no adequate explanation has been provided in relation to the subsequent delay in filing the appeal.
In submissions to this court, the appellant further explained that there were delays relating to the provision of the transcript of the Magistrates Court proceedings. The appellant submitted that it was necessary to obtain the transcript in order for him to properly file grounds of appeal.
The principles relating to applications for leave to appeal out of time are well settled. Generally speaking, there are 'four major factors to be considered in the exercise of the discretion which is conferred upon the court. They are, first, the length of the delay, secondly, the reasons for the delay, thirdly, whether there is an arguable case and, fourthly, the extent of any prejudice to the respondent'.[9]
[9] Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198 (Kennedy J).
The appellant has always been desirous of appealing. This is evidenced by the fact that he initially attempted to appeal, albeit to the wrong court, within the time required by the rules. In the context of this case, when the reasons for the delay are properly considered, including the fact that the appellant has always been unrepresented and the explanations provided by the appellant for the delay, the delay of 25 days is not significant. I also accept that at least in relation to ground 3, there is an arguable case on the appeal.
Whilst I accept that there is some prejudice to the respondent, when all factors are properly weighed and considered, I am satisfied that this is an appropriate case to exercise my discretion to grant leave to the appellant to appeal out of time.
Other relevant statutory provisions governing the appeal
Relevantly, a party to a case (not being a 'minor case') may appeal to the District Court against the judgment of the Magistrates Court in the case.[10]
[10] MCCPA s 40(1)(b).
The appeal must be conducted in accordance with rules of court made by the District Court[11] (District Court Rules 2005 (WA) (DCR)).
[11] MCCPA, s 40(4A).
The District Court must decide the appeal on:[12]
(a)the material and evidence that were before the Magistrates Court;[13] and
(b)any other evidence that it gives leave to be admitted.[14]
[12] MCCPA s 40(4).
[13] MCCPA s 40(4)(a).
[14] MCCPA s 40(4)(b).
Leave may only be given to admit other evidence in exceptional circumstances.[15]
[15] MCCPA s 40(5).
Rule 50(1) of the DCR provides that an appeal to the court must be by way of reconsideration of the evidence that was before the primary court unless the parties otherwise agree. Rule 50(2) of the DCR provides that at the hearing of an appeal a party must not adduce evidence that was not adduced in the primary court except with the leave of the court. Rule 50(3) provides that the court is not to grant such leave unless satisfied that there are special grounds for doing so. Rule 50(4) provides that the rule is subject to the written law that provides for the appeal to be made to the court.
Thus, it is clear from s 40(4) of the MCCPA and r 50(1) and r 50(2) of the DCR that an appeal from a decision of a magistrate to the District Court is by way of re-hearing.
The fact that the District Court may receive and admit new evidence does not mean the appeal is a hearing de novo.[16]
[16] Butler v Bennett[2007] WADC 107 [10]; Hoskins v Armstrong[2008] WADC 168 [3]; Regan v Gibson[2010] WADC 144 [7].
As the appeal is by way of a re-hearing, it is necessary for the appellant to demonstrate error in the court below.[17]
[17] Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission[2000] HCA 47; (2000) 203 CLR 194 [14].
Consequently, the powers of the District Court on an appeal are only enlivened if the appellant demonstrates that the original decision made by the magistrate the subject of the appeal was the result of some legal, factual or discretionary error.[18]
[18] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
If an error is demonstrated by the appellant, the orders that theDistrict Court may make on the appeal are set out in s 43 of the MCCPA. They include:
(7)The appeal court may -
(a)confirm, vary or set aside all or a part of the lower court's judgment;
(b)give any judgment and make any order that the Magistrates Court could have given or made;
(c)order a new hearing in, or trial of, the case to be held in the Magistrates Court;
(d)order the Magistrates Court to enter judgment in favour of a party;
(e)make an order as to the costs of the appeal and as to the costs in the Magistrates Court and, in an appeal to the Court of Appeal, as to the costs in the District Court;
(f)make any orders that are necessary as a result of other orders it has made.
It is therefore necessary to carefully examine all of the evidence that was before the learned Magistrate at the original hearing.
The events leading up to the appellant's claim against the respondent
Prior to January 2017, the appellant lived on a remote mining lease near Leinster, Western Australia. He was unsatisfied with the quality of his existing internet service. After seeing an advertisement for the respondent's ADSL Broadband service, the appellant made enquiries as to its availability in Kambalda West. Satisfied that it would be available in Kambalda West, he terminated his existing satellite broadband service and moved to a residential address at Kambalda West (the property).[19] The only reason he moved to Kambalda West was so that he could access a better internet service.
[19] The address has been anonymised.
The appellant then submitted an electronic application to the respondent for the ADSL bundle to be connected at the property.
The appellant claims that, although the telephone service was connected to his property, the broadband service never was. Despite this, he claims that the respondent demanded payment for both services, claiming that they were both working.
The respondent claims that at all relevant times both services were connected.
Events relating to the appellant's complaint that the internet service was not operating
From the appellant's oral evidence before the learned Magistrate, and in multiple documents tendered in evidence at the trial, it is clear that from a time shortly after the technician attended his property and on a number of occasions subsequently, the appellant brought to the respondent's attention his claim that he had not only followed the necessary steps required for him (as a consumer) to operate the internet service from his property, but that the internet service was not working. A history of his dealings with the respondent, taken from the appellant's evidence and the exhibits, is set out below.
According to the appellant, for the modem to work properly, a light on had to turn from red to green. On either 13 or 14 March 2017, when the respondent's technician was at his property, the appellant showed him the modem light was still red. The technician responded by telling the appellant that 'he was not familiar with the modem'.[20]
[20] Hearing, ts 14.
On 22 March 2017, the appellant lodged an online complaint with the respondent relating to this issue. The respondent allocated the complaint a reference number (SR 1-109801730561) and responded to the complaint by informing the appellant by email that 'a member of [the Telstra] team will be in touch within five business days'.[21]
[21] Exhibit 5.
An entry in the respondent's activity log (exhibit 5) reveals that, as at 24 March 2017, the respondent had recorded the following information:[22]
Customer's concern: Customer is unable to connect to Internet, 'online' LED of modem remains red Actions taken.
[22] Exhibit 5.
The 'actions taken' are not detailed or explained in the activity log.
In early May 2017, the appellant made a complaint to the Telecommunications Industry Ombudsman (TIO). Part of the complaint was tendered by the appellant in a bundle of documents which became exhibit 2. The significance of this document is discussed below.
The appellant's oral evidence at trial included that he did not receive any response from the respondent until after he had lodged a complaint with the TIO. To this end, I note that following the appellant's complaint to the TIO, the respondent's activity log records that on 16 May 2017 'Amie', a complaints officer employed by the respondent, apparently attempted to speak to the appellant by telephone. The call was not answered. The reference number attributed to this entry (SR 1‑1149724039229) is different to the reference number given to the appellant's earlier complaint in relation to the lack of internet service. I infer the new reference number relates to the TIO complaint.
On 17 May 2017 'Amie' called the appellant. The appellant informed her that he only wished to discuss the complaint via letter because he was partially deaf. The appellant then hung up.[23]
[23] Exhibit 5.
The following day, 18 May 2017, the activity log records that 'Amie' once again called the appellant and spoke with him. On this occasion, according to the log, she informed the appellant that an email had been sent to him:[24]
… confirming the charges on the accouns [sic] has [sic] been removed completely that he needs to organize faults issue with fault [sic] and then discuss further billing matters with me, credits has [sic] been applied and no existing balnce [sic] will [sic].
[24] Exhibit 5.
The entry in the log also records that an email was sent.[25] There is no record of what email account the email was sent to.[26]
[25] Exhibit 5.
[26] Exhibit 5.
On 23 May 2017 the respondent sent an email to the appellant. The activity log does not record what email account the email was sent to.[27]
[27] Exhibit 5.
On 31 May 2017 a representative of the respondent rang the appellant querying why he had not responded to the respondent's earlier email. The appellant apparently requested that the proposed resolution of the matter be sent to him via letter. An email confirming this was then sent to the appellant by the respondent on 6 June 2017.[28] The activity log does not record what email account the email was sent to.[29] (The appellant's evidence was that he did not receive either the emails or letter. The issue of what address the respondent sent any correspondence to and why is discussed below.)
[28] Exhibit 5.
[29] Exhibit 5.
All of the actions recorded in the respondent's activity log between 16 May 2017 and 6 June 2017 appear to relate to reference SR 1‑1149724039229, not the original complaint initiated by the appellant in relation to the internet service, although it seems the two issues are interrelated.
The activity log also records that letters were sent to the appellant on 18 April 2017, 4 May 2017, 11 July 2017, 31 July 2017, 31 August 2017, 18 October 2017, 6 November 2017, 20 November 2017, 29 November 2017 and 20 August 2018.[30] The activity log does not record the address that each letter was sent to, or what the contents of the letter were. However, each letter is recorded (under a column headed 'Area') as 'Billing*' or, in relation to the entry on 20 August 2018, as '#Online Billing*'.
[30] Exhibit 5.
The letter apparently sent by the respondent to the appellant on 20 August 2018 followed an earlier email apparently sent to the appellant on 17 August 2018 and recorded as relating to '#Online Billing*'. The entry of 20 August 2018 also has an entry (under the heading 'Comments'):[31]
Bounce Back Reason: Non_Existent_Email_Address Action Taken: Sent_Letter … … … … … … Bounce Back Email Address: [email protected] …
[31] Exhibit 5.
Despite the fact that the respondent had apparently removed all charges on his accounts, the activity log records that between 13 July 2017 and 23 August 2017 a representative of the respondent called him on no less than 23 occasions to speak to him about his 'overdue balance'.[32] Unsurprisingly, given the history of the matter to that time, including that he had apparently been previously informed that all charges had been cancelled, the appellant hung up on the caller on a number of occasions.
[32] Exhibit 5.
Furthermore, despite apparently removing all charges from his account, on or about 25 August 2017 the respondent suspended or disconnected his telephone service for non-payment of his account.
The respondent's activity log records that on 11 October 2017 the respondent acknowledged a further complaint from the appellant.[33] I infer that this complaint related to the fact that the appellant's telephone service had been disconnected.
[33] Exhibit 5.
The appellant's evidence about 79 Goldfield Highway, Leonora
In his evidence, the appellant contended that all letters sent to him by the respondent were addressed to him at a fictitious postal address, namely 79 Goldfields Highway, Leonora (Goldfields address). Consequently, he never received the correspondence.
There was no dispute that the Goldfields address was a fictitious address. This, address, according to the appellant, had its genesis at a time when the appellant previously accessed satellite telephone services through a company called SkyMesh.
During his evidence, the learned Magistrate asked the appellant where this address came from. The appellant, in answer to the learned Magistrate's question, said he had 'no idea'[34] where this address came from. However, the appellant went on to explain his understanding about the origins of this fictitious address. He said that he understood that, as he was living on a mining lease in the 'bush', in order to have a satellite phone connection, SkyMesh required his geographical coordinates. It is clear from his evidence that he assumed that the fictitious address had been created by SkyMesh to overcome the difficulty of the appellant having no formal address. The appellant's uncontradicted evidence was that he neither created the fictitious address nor provided it to the respondent.[35]
[34] Hearing transcript, ts 17.
[35] Hearing transcript, ts 17.
The entry in the respondent's activity log for 17 August 2018 records the respondent's 'old' billing address as 79 Goldfields Highway, Leonora, and the 'new' billing address being his property at Kambalda West. In relation to this entry, Ms Houghton said in her evidence that at the time the appellant initially sought to set up his ADSL account with the respondent, the respondent initiated a computer application which drew all relevant information together from various sources. This included the fictitious Goldfields address.[36] This strongly suggests that up until 17 August 2018 all correspondence sent by the respondent to the appellant was indeed sent to the 'fictitious' Goldfields address. It also supports the appellant's evidence that he never received the earlier letters that the respondent said were sent to him.
[36] Hearing transcript, ts 62.
The appellant's other contact details
At the time the appellant moved to the property at Kambalda West, he had an existing email account with TPG.[37] That email account was linked to another address, being the address at which his partner lived. The appellant believed that this account was closed after the respondent transferred the email address to the new service he had with the respondent.[38] It is clear that at the time the appellant applied for an ADSL bundle with the respondent, he gave the following contact information:[39]
•Mobile telephone number ending '292'.
•Email address: 'TPG'.
•Home address: [property], Kambalda West.
•Delivery address: [property], Kambalda West.
[37] Address anonymised.
[38] Hearing transcript, ts 25.
[39] Exhibit 1.
The appellant accepted that he received the email sent to him by the respondent on 23 February 2017.[40]
[40] Hearing transcript, ts 27.
Another email was sent to the appellant on 24 March 2017. By this stage, according to the respondent, his internet service was connected. The appellant denies that he received this email.[41] He also denied that he received any of the invoices sent by the respondent to him via email.[42]
[41] Hearing transcript, ts 27
[42] Hearing transcript, ts 29.
The only reasonable inference open on all the evidence is that, until 17 August 2018, the respondent sent all correspondence to the Goldfields address. Why the respondent did that, rather than send letters to the address the appellant provided on his application, was never properly explained by Ms Houghton. In her closing submissions, counsel for the respondent before the learned Magistrate conceded that the respondent did have the wrong address for the appellant at some time.[43] The available evidence supports the appellant's contention that he never received the correspondence.
[43] Counsel for the respondent's closing submissions, 5 March 2020, ts 73.
The exhibits tendered by the appellant at the hearing
The appellant tendered a number of documents (exhibits 1 and 2) during the hearing, being:
(a)The appellant's online application for the respondent's services, dated 13 February 2017 (exhibit 1).
(b)a bundle of documents (exhibit 2), tendered with the respondent's consent, including:
(i)documents referencing the appellant's contact information, including a contact email of [email protected]; a mobile telephone number ending '292' and delivery address being the Kambalda West property.[44]
(ii)Page 1 of 3 of the appellant's letter of complaint against the respondent to the TIO, dated 3/5/2017 (marked 'C1').
(iii)An email from [email protected] marked 'D'.
(iv)A copy of a letter from the appellant to the respondent dated 19 February 2019, setting out his claim for damages.
[44] Exhibit 2, documents marked 'B', 'C' and '3'.
The document marked 'C1', which was headed 'Attachment 1 to my letter of 3/5/2017 complaint against Telstra'[45] records the following:
I followed the easy instructions necessary to get the service working, as advised on the Telstra leaflet delivered with the modem (which they call 'Gateway') as, once connections are made and switched on, everything is done automatically:
1)'Please wait for the power button to turn solid green.'
2)'Please wait for the 'ONLINE' light on your Telstra Gateway to turn solid green. This could take 10 minutes.'
Step 2 has never worked and the light has remained 'solid' red all the time (many weeks since turned on). My main OS is Linux but I have a 'dual boot' laptop with Debian 7 and Windows 7 and both operating systems are unable to make the connection (in fact my laptop and desk top are trying to make the connection 24 hours a day through a 'daemon'). Windows 7 states in the trouble-shooting procedure that the modem cannot establish a connection to the Internet (the computers successfully establish the connection with the modem).
The technician came on the day of the new appointment and told me that he had to 'find a free line' at the local exchange because the house to be connected had not had tenants for a long time (unused phone line at the exchange). During all the time he was working to get the connection of [sic] the phone, the light of the modem (Gateway) has never flickered and remained solid red all the time. Expecting that it was his job to ensure that the Internet connection was working, I asked him as the light remained red but he replied that he was not familiar with the modem which let [sic] me to believe that it was not part of his job and the light was still red when he left although I subsequently found that the telephone was working. I was then under the impression that the job of the technician was only to ensure that the telephone was working.
I have also found that I cannot access my email account with Telstra from the library as I get a message: 'Please enter the password for Imap … [sic]' which I understand to be a 'generic' way of informing without saying so that the access is denied, however I do not know if this limitation was due to the library software or to Telstra and the staff at the library have no idea.
[45] Exhibit 2.
As already noted, this document was not only tendered with the consent of the respondent, but counsel for the respondent did not seek to cross‑examine the appellant on its contents. The statements made by the appellant which are set out in the document became evidence of those facts once the provisions of s 79C of the Evidence Act 1906 (WA) were complied with, namely upon its tender and once the appellant became a witness at the hearing.[46]
[46] Evidence Act s 79C(1)(a).
On their face, the statements made in the document tend to support the following:
1.The appellant had some familiarity and knowledge using computers and applications, including an understanding of their operating systems.
2.The appellant had followed the instructions provided to him for the installation of the modem.
3.That the 'POWER BUTTON' and the 'online' light on the modem needed to be green to indicate that they were properly working.
4.That neither the power button nor the online light turned green.
5.That the appellant informed the technician who attended his property that the modem (Gateway) was still showing red.
6.That the technician had informed him that he was unfamiliar with the modem.
7.The internet service was not operating.
The cross-examination of the appellant at the hearing below
The appellant was unshaken in cross-examination in relation to his contention that the internet service was never connected to his property. The appellant said he had a 'fair knowledge'[47] of setting up modems and that when the respondent's technician attended on 14 March 2017, he never set up the modem. In fact, the appellant said the technician 'never touched it'.[48]
[47] ts 26.
[48] ts 26.
Furthermore, the appellant was asked whether it was possible that when he set up the modem that he made an error. The appellant was unequivocal in disavowing that possibility.[49]
[49] ts 27.
The appellant's evidence that the technician told him that he was not familiar with the modem at his property was not objected to, nor was it contradicted by the respondent.
Much of the cross-examination of the appellant related to subsequent communications initiated by the respondent in an attempt to communicate with the appellant following his complaint to the respondent that he had no internet service. The complaint was lodged online.
The appellant denied receiving an email from the respondent sent on 24 March 2017.
In relation to a call to the appellant from the respondent on 2 May 2017, the appellant said it related to the respondent attempting to collect payment from him,[50] or the operator provided information so complicated that he was unable to understand it, so he asked that they provide the information in writing by email or post.[51] He denied simply hanging up on the respondent's representative as suggested by counsel.[52]
[50] ts 27.
[51] ts 28.
[52] ts 28.
It was also put to the appellant that he had a history of making complaints to the respondent. These were identified by counsel for the respondent as:
•In 2008 the appellant claimed that he had not received invoices from the respondent.
•In 2009, after the respondent pursued an outstanding account he had in the sum of $164.52, the appellant disputed receiving the initial invoice.
•In 2010 he complained to the respondent that a new connection had not been completed.
The appellant had no memory of these events, but accepted that it was possible he had made the complaints.[53]
[53] ts 29.
It can only be assumed from the nature of the cross-examination that this line was pursued by the respondent in an attempt to attack the appellant's credibility. If anything however, it bolstered his credibility. First, the appellant did not dispute that he may have made the complaints. Secondly, no evidence was led by the respondent to demonstrate that the appellant's complaints lacked merit or were without foundation.
The appellant's claim for damages
As already noted above, the respondent submits that the appellant suffered no loss as all charges on his account, both the telephone service and internet service, were reversed. In addition, the respondent provided the appellant with gratuitous compensation in the sum of $1,911.80.
Whilst there is no dispute that the respondent did give the appellant compensation in the sum of $1,911.80, that compensation was provided pursuant to the respondent's customer services guarantee which only related to the telephone service, not the internet service.[54]
[54] Counsel for Telstra's closing submissions, 5 March 2020, ts. 75.
The only evidence before the learned Magistrate of the appellant's claim for damages was contained in a document that forms part of exhibit 2, and is marked 'E2'. The document, the second page of a letter sent to the TIO dated 14 February 2019, sets out the claim for damages as:
(a)$26,281.20 (less $1,911.80 paid by Telstra) for the 543 days that the respondent had disconnected his telephone service (14 April 2017 - 10 October 2018) calculated at a rate of $46.40 per day.
(b)$1,750 for the 'imposition of having had to move unnecessarily [his] personal belongings and furniture 345 kilometres away'.
(c)$8,731.20 'in extra costs relating to the residential lease of the property in Kambalda'.
(d)$65,703.00 for 'mental stress and anguish' arising from:
•a period of time of having no telephone service or internet service and being 76 years old at the time; and
•having cancelled his previous satellite service and not being able to reconnect the satellite service, thus making it impracticable to return to live at the mining lease.
As already noted above, this document, upon its tender and the appellant being called as a witness in the proceedings, became evidence of the facts contained therein.[55]
[55] Evidence Act s 79(C)(1) and s 79(C)(2).
The respondent did not seek to cross-examine the appellant on the statements made in the document. Whether it is sufficient evidence to prove any proper measure of damages is another question.[56] Counsel for the respondent, in submissions made to the learned Magistrate, submitted it was not. Furthermore, the respondent's position was that, if the appellant proved that the respondent had breached its contract with him, then the only damages he would be entitled to would be the refund of the cost of the services.[57] Since all charges were reversed, the respondent submitted the appellant had suffered no loss.
[56] Bonham Carter v Hyde Park Hotel Ltd(1948) 64 TLR 177, 178 (Lord Goddard CJ); Michael Kellaway International Pty Ltd v Shark Bay Airport Pty Ltd (Unreported, WASCA, Library No 970604, 13 November 1997); BGC Construction Pty Ltd v Elvidge Pty Ltd[2005] WADC 103 [161] Commissioner Keen.
[57] Counsel for Telstra's closing submissions, 5 March 2020, ts. 76.
The evidence relied upon by the respondent in the Magistrates Court
Before detailing the evidence, I again note that the appellant was unrepresented in the proceedings below, whereas the respondent, a major corporation, was represented by counsel. Nonetheless, the respondent was permitted to adduce large swathes of ordinarily inadmissible evidence.
The respondent's only witness, Katherine Elizabeth Houghton, was employed by the respondent as 'legal counsel in the dispute resolution team as part of the legal services group'.[58] Ms Houghton claimed to be a person who had the requisite knowledge of the respondent's documents in relation to the matter and could provide evidence of the respondent's processes and procedures from an initial application, through to the closing of an account.[59] No explanation was given as to how she was qualified to give this evidence, or why she was authorised to do so.
[58] ts 35.
[59] ts 35.
Ms Houghton, despite acknowledging that she was 'not a technical person',[60] proceeded to give evidence not only about the practices and procedures employed by the respondent with respect to applications for telecommunication services, but also purported to give expert opinion evidence as to what steps were carried out by the respondent; by whom they were carried out; and what the result of the steps undertaken by the respondent were. This is illustrated by Ms Houghton's evidence in relation to exhibits 3 and 4 which were tendered through her by the respondent. Her evidence is examined below.
Exhibit 3
[60] ts 39.
Exhibit 3, a document bearing the words 'ADSL Rules', 'Test Details' and 'Tester Nigel Landers' was apparently retrieved from the respondent's systems in relation to the appellant's service. Ms Houghton gave the following evidence in relation to it (emphasis added):
Respondent's Counsel: Ms Houghton, what date was this document created?
Ms Houghton: It's listed on the top right hand corner where it says, 'Local OATS time,' 14 March 2017 at 14.16.59 - 24 hour clock.
Respondent's Counsel: And do you recognise this document?
Ms Houghton: Yes, I do. This was also a document that was retrieved from Telstra's systems in relation to [the appellant's] service when it was connected by the relevant Telstra technician, who is listed there as the tester, Nigel Landers.
Respondent's Counsel: What position does Nigel Landers hold in Telstra?
Ms Houghton: I understand he's - at that time, he was a technician. So his job was to go out and connect services for customers.
Respondent's Counsel: Now, what does the contents of this document - what would it be used for, for Telstra's purposes?
Ms Houghton: This would be used to show that the ADSL service - Internet service - was connected. So if you look at the top left hand corner, it says 'Good'. That essentially says that the connection was good. Further down - my understanding - and I'm not a technical person myself - but my understanding is that the numbers in the two columns on the left hand side show the sort of connection weights that, relevantly, in sync. The service there says that it is connected. And then if you look underneath the graft, it has the port details. And so that lists the port number that [the appellant's] service was connected to.
(emphasis added)
There is no issue that the document, as part of the respondent's business records, was admissible. No objection was made to its tender. However, when exhibit 3 is properly considered, save for the reference to the 'tester' being Nigel Landers in exhibit 3, the document does not otherwise speak for itself.
Mr Landers was not called as a witness in the proceedings. No evidence was given about what qualifications or training Mr Landers had. No admissible evidence was given that the 'tester' (Mr Landers) was the technician that attended the appellant's property on the relevant day. Ms Houghton never explained how she, as a 'legal counsel', was qualified to give the evidence she did.
The only admissible evidence of what the technician did at the appellant's property came from the appellant. The appellant's evidence, which as already noted went unchallenged, included that the person he spoke to (the technician) told him that he was not familiar with the modem at the appellant's property.
Exhibit 4
Ms Houghton's evidence in relation to Exhibit 4 was as follows (emphasis added):
Respondent's Counsel: Do you recognise this document, Ms Houghton?
Ms Houghton: Yes, I do. Again, this was a document retrieved from Telstra's system that shows the events relating to the connection of [the appellant's] service on 14 March 2017. Again, by Mr Nigel Landers.
Respondent's Counsel: … What does the contents of this - what is [sic] the contents in this document tell Telstra about this matter?
Ms Houghton: So the top line shows the phone number, which I believe is the phone number that [the appellant] used - his home telephone. And then if you go from the bottom row upwards, my understanding is that what the bottom row shows is that on 14 March 2017 at 11.57 it states that there was a 'Mobile to Cust_Contact'[61] and the status of that was 'Good'.[62] My understanding is that that would indicate that Mr Landers has contacted [the appellant] to confirm the connection of his services on that day. The second line from the bottom on the same day at 13.35 states, 'CPE_ADSL_BASIC_BROADBAND Install,'[63] and the status is 'Complete'. My understand (sic) is that meant that the service was installed at that time. The third line from the bottom at 14.16.59 then says, 'OATS test, SMSPORTAL[64]' and the status is 'Good'. And then along then it says, 'In Sync.' So this relates to the previous page that we just referred to which was tendered as Exhibit 3. So that, essentially, shows that Mr Landers tested the service that he installed and it came up as good and in sync. The fault line from the bottom - sorry, do you mind if I continue?
Respondent's Counsel: If you have more to say, yes?
Ms Houghton: Yes. Sorry. The fourth line from the bottom at 14.25, that says, '(indistinct)'. And the next line says, 'System error.[65]' My understanding of this - and this comes from an investigator at my team who was previously a technician Telstra - is that this (indistinct) test is essentially a remote test that takes place from the relevant exchange near [the appellant's] residence. And the system error indicates, essentially that the - that remote test was not working at that time. It was off line. So it doesn't necessarily show that the service wasn't working. It, essentially, shows that the remote test at that time wasn't working. And if you go up to the very top line at 19:13 which says, 'FAST-Bot'[66] and 'System error.'[67] Essentially, the same thing occurred later on that day. So another remote test from the exchange was attempted, but, again, that service was off‑line. My understanding is that this exchange would be a relatively remote area and so it may be that that remote testing service was not repaired for a time, but I don't have any further details on that. But my understanding is that that doesn't necessarily show that the services connected to [the appellant's] residence weren't working. It essentially shows that simply the remote testing service was not working. And then the second line from the top at 1628 says, 'Thanks/D 14 Given,'[68] and then, status 'OK.'[69] My understanding of that is that the technician is saying that he gave the power to the appellant giving his details if the appellant wanted to connect him that was received by [the appellant].
Respondent's Counsel:Ms Houghton, what does the information in this document provide Telstra personnel with regard to availability of ports?
Ms Houghton: It shows that - particularly, we take this together with the previous document - that at 14.16 the OATS test was done and it was said as good and in sync, and so therefore that means that the service was connected to a port that was available at that time.
(emphasis added)
[61] Reproduced from exhibit 4, not what appears in transcript of witness' evidence.
[62] Reproduced from exhibit 4, not what appears in transcript of witness' evidence.
[63] Reproduced from exhibit 4, not what appears in transcript of witness' evidence.
[64] Reproduced from exhibit 4, not what appears in transcript of witness' evidence.
[65] In fact it does not say 'System error' but rather says 'System Err' - see exhibit 4.
[66] Reproduced from exhibit 4, not what appears in transcript of witness' evidence.
[67] In fact it does not say 'System error' but rather says 'System Err' - see exhibit 4.
[68] Reproduced from exhibit 4, not what appears in transcript of witness' evidence.
[69] Reproduced from exhibit 4, not what appears in transcript of witness' evidence.
Although Ms Houghton, with reference to the documents, explained her understanding of the language of the documents and what she believed the documents reflected, at no stage did she qualify herself as being capable of providing such opinions. Indeed, at one point in her evidence she made it clear that her understanding of what occurred had come from another person in her team.
On the available evidence, although exhibit 4 was of itself admissible as part of the respondent's business records, Ms Houghton was not qualified to give the evidence she gave. Her evidence amounted to an impermissible interpretation of the contents of the documents without being qualified to do so or having any direct involvement in the technical processes she spoke to.[70]
Exhibit 5
[70] Italiano v The State of Western Australia[2012] WASCA 260.
Ms Houghton also spoke to an activity log taken from the respondent's system (exhibit 5), which purported to record interactions between the appellant and representatives or employees of the respondent from the time he made his all application on 13 February 2017 until 22 August 2017.
Ms Houghton gave evidence that there were multiple (21) times that one of the respondent's representatives attempted to call the appellant. On a number of occasions, according to the log, the appellant hung up on the respondent's representative.
Whilst the content of this document does largely speak for itself, a careful review of the relevant records reveals that all of the identified calls related to credit management or billing matters, not the complaint that the appellant made about the failure to connect his internet service. In my view, this significantly supports the appellant's evidence. The records of the calls do not support the respondent's assertion that it attempted to assist the appellant in relation to the fault he complained about.
There were however a number of records of emails and other calls involving the appellant and a representative of the respondent where the complaint was discussed, or resolutions proposed by the respondent.
Exhibit 6
Ms Houghton also spoke to exhibit 6. This document was a copy of an email from the respondent sent to the appellant at his email address [email protected] and related to the appellant's complaint against the respondent. The email contained the following information:
•That the appellant had been assessed under the respondent's customer service guarantee and considered to be eligible for a payment of $1,911.80. It invited the appellant to review the assessment and accept the money as a resolution of his complaint.
•A summary of what the respondent contended had occurred with respect to the connection of a the appellant's small broadband bundle (internet and telephone service) at his property, including that 'there were spare ports at the exchange and the technicians [sic] testing record from 14 March [sic] the Internet service was working at the time of connection'.[71]
•A summary of the appellant's complaint including that he had raised an online complaint wherein he had advised that he was 'unable to connect to the internet and the modem light was red'.[72]
•That the appellant had been billed $75 per month for the small broadband bundle provided by the respondent, plus connection charges and other fees. However, no payments were made by the appellant on the account. The respondent had waived 100% charges.
•That on 25 August 2017, after the appellant had notified the respondent that his telephone service had been disconnected, the respondent assessed the period between 29 August 2017 and 27 October 2017 as being the dates between which his service had been disconnected. The respondent had, pursuant to its customer service guarantee, assessed the appellant's circumstances and determined that he was entitled to compensation in the sum of $1,911.80 as a result of having his telephone services disconnected.
Exhibit 7
[71] Exhibit 6.
[72] Exhibit 6.
In addition to duplicating parts of documents contained in exhibit 6, exhibit 7 included an email trail between the respondent's representatives and someone at the TIO (Moses Mkusa), discussing, amongst other things:
(a)the fact that the appellant had rejected the customer service guarantee assessment and the respondent's offer to resolve the matter by payment of $1,911.80;
(b)the fact that a representative of the respondent had apparently asked the respondent's 'fault team to look for any archived fault reports'; that the respondent's archives had been checked for faults; and that there was 'no history to report'.[73]
[73] Exhibit 7, email from Joan Morgan to [email protected].
So far as the document indicated that there was no history of faults to report, I note that the learned Magistrate sought clarification as to how the document illustrated that there was no fault recorded on the service. The following exchange then occurred:[74]
[74] ts 54.
Ms Houghton: So, essentially I've been informed, well, that by way of there being no result, that means that there were no - there were, essentially, no results recorded to the query as to faults service so, essentially, the respondent's records came up as blank.
Her Honour: All right. And – so how would a fault on the service be generated?
Ms Houghton: I – I don't know exactly but I would – it would be , sort of – sorry. That's – its kind of a broad answer because there's so many different faults and different systems that it could be – it could be logged against, my understanding is that if there a fault [sic] or someone reported a fault, it would be entered into a Telstra system and , therefore, when a service is – an as well as against any specific service, so a customer (indistinct) number and , therefore, if a search is done, then that that fault would appear at some point.
Her Honour: Okay. So ----?
Ms Houghton: … So that's what would appear.
Her Honour: If in other words - so I can understand what you explain to me - that would be generated on this document if [the respondent] had confirmed there was a fault on the service or just merely that there was a complaint?
Ms Houghton: I think it's - I think it's just if - if a fault has been investigated, so - or possibly not necessarily just reported, but if a fault has been investigated or confirmed, it would appear.
(emphasis added)
The appellant later cross-examined Ms. Houghton on this issue:[75]
[75] ts 59.
Appellant:Mrs Houghton, you are (indistinct) the document and recorded by [the respondent] but, according to your testimony this morning, you seem familiar with the existence of the document but not necessarily the meaning of the document - - -
Her Honour: Okay.
Appellant: - - - - - is that correct?
Her Honour: So I note that's a statement. So - - -
Appellant: Yes.
Her Honour: What part of that statement do you wish to turn into a question Mr Blampain?
Appellant: Is that correct?
Ms Houghton: Sorry, I don't understand the question. Why you saying that I don't - I you asking me whether I have an understanding of the documents that we discussed this morning?
Appellant: Do you have an understanding of the meaning of the documents?
Ms Houghton: I believe I do, yes.
Appellant: But you expressed a few times that you don't?
First, with the greatest of respect to the learned Magistrate, her Honour's assertion that the question was 'a statement' was incorrect. It was a question, albeit Her Honour interrupted the appellant before he completed the question. Secondly, it demonstrates that the appellant was quick to note that the language used by Ms Houghton indicated that whilst she may have been familiar with the documents, she was not qualified to express the opinions that she did. This was clearly demonstrated by the fact that the witness repeatedly qualified what she was saying with the words 'my understanding'.
Nonetheless, the learned Magistrate directed the appellant to take the witness to specific documents.[76] In that context, the appellant asked Ms Houghton to explain whether, in relation to exhibit 7, the fact that the respondent's employee had recorded that the archives showed no result or was blank, meant that there was nothing at all? In answer Ms Houghton once again resorted to the language of someone unqualified to answer the question and said:[77]
Ms Houghton: That is my understanding of that document. My understanding is that if there had been a fault investigated or found in our network, then when that search had been done of Telstra's, then result would have appeared. But the blank document says to me that there was no fault investigated or found in relation to your service.
(emphasis added)
Exhibit 8
[76] ts 60.
[77] ts 61.
The respondent also tendered a document titled:
OUR CUSTOMER TERMS
GENERAL TERMS OF CONSUMER CUSTOMERS
In particular, counsel for the respondent pointed to cl 9.3 which includes the following:
9.3(c)we are not liable for any loss to the extent that is caused by you (for example, through your negligence or breach of contract);
9.3(d)we are not liable for any loss to the extent that it results from your failure to take reasonable steps to avoid or minimise your loss;
Counsel for the respondent submitted that this was relevant in the context of the defence since the appellant failed to take any, or any reasonable steps to minimise any damages that might have arisen as a consequence of the respondent's negligence.
The respondent's attempts to ascertain whether any metadata relating to the appellant's accounts had been retained.
Ms Houghton was also asked about the respondent's internal email correspondence between Steve Kuluveovski and Adam Gelfe, both of whom were apparently employed by the respondent, relating to the appellant's request for metadata with respect to his internet service. The correspondence, which had been disclosed to the appellant, was to the effect that there was no session or usage information relating to the appellant's ADSL account for the period 1 March 2017 to 30 October 2017. The lack of information was apparently due to the fact that the data had been deleted by the respondent at the expiration of the two‑year retention period required by law.
It is of note that, following an earlier application brought by the appellant, the learned Magistrate made orders that the respondent provide the appellant with any relevant metadata relating to his ADSL account. Those orders were not made until shortly before the hearing. The respondent, following the learned Magistrate's orders, then actioned the request for the metadata. This did not occur until on or about 21 February 2020, more than two years after the last date the respondent was required by law to keep any relevant data. Ms Houghton did not explain why the respondent had not retained the metadata, given the appellant had commenced legal proceeding against the respondent in February 2019 which was within the two-year retention period.
There is no doubt that it would have been preferable for the data to have been retained by the respondent. However, unless there had been a request for it, or some other mechanism pursued by the appellant, the respondent was not under a legal obligation to retain the data beyond the two‑year retention period. Furthermore, there is simply no evidence that the respondent deliberately deleted the metadata. Given the respondent's position, the existence or otherwise of any metadata may well have conclusively resolved the issues in this case.
The General Procedure Claim filed by the appellant on 24 May 2019 was within the two-year retention period required by law. However, there is nothing on the face of the appellant's General Procedure Claim which compels a view that it was necessary for the respondent to have retained the metadata. This issue is also further examined at [188] to [200] below.
I accept that the relevant data or documents were relevant to the issues in this case. I also accept that, had the metadata or documents been available, there is a real possibility they would have settled the question of whether the appellant's internet service had been connected. Whilst it would have been preferable for the respondent to have retained the data and documents, there is simply no evidence that the respondent's destruction of the material had occurred in circumstances other than in the normal course of their data retention policies.
It was not until 21 February 2020 that the court made the order that the respondent produce any relevant information or metadata relating to the appellant's internet services. By that stage, the data and information had already been destroyed.
The absence of the evidence or information proves nothing.
Furthermore, it is clear that the learned Magistrate was aware of the issues raised by the appellant, engaged with him in relation to those issues, and impliedly found it not necessary in the circumstances to refer to them in the course of her reasons.
There is no merit in ground 2 of the appeal.
Ground 3 - 'The Magistrate admitted the [respondent's] hearsay evidence after ignoring two of the [appellant's] request [sic] for subpoena of documents that would have proved the incorrectness of the [respondent's] hearsay evidence'
At first glance, ground 3 seems to contend that the learned Magistrate erred by admitting the inadmissible hearsay evidence given by Ms Houghton, the sole witness called by the respondent at the hearing.
There is no doubt that much of Ms Houghton's evidence was inadmissible hearsay. However, on the appeal it became apparent that although the appellant did indeed take issue with some of her evidence, it was not because it constituted inadmissible hearsay evidence as understood by the common law. When the submissions made by the appellant in relation to this ground are carefully analysed, the appellant's reference to the respondent's 'hearsay evidence' relates to the Goldfields address and his contention that the learned Magistrate erred in fact by concluding that the appellant had provided the fictitious address to the respondent.
The appellant's objection to the 'hearsay evidence' at the hearing
During the hearing before the learned Magistrate, the appellant initially raised an objection to what he referred to as 'hearsay evidence' before any evidence about the Goldfields address had been led.
At the start of the trial, the learned Magistrate invited both the appellant and counsel for the respondent to outline their respective cases in opening addresses. Relevantly, counsel for the respondent set out the respondent's defence which included:[139]
(i)that on 14 March 2017, the respondent's technician attended the property and not only installed both a telephone and internet service at the address, but tested that the internet service was connected and confirmed it was;
(ii)a history of the appellant's complaint about the alleged lack of internet service, including a chronology of communications between the appellant and the respondent, and the respondent's offers to resolve the matter;
(iii)a history of the appellant's complaint to the TIO, including the findings made by the TIO in favour of the respondent and a subsequent request by the appellant for a review of those findings.
[139] Counsel for the respondent's opening address, 5 March 2020, ts 7 - ts 10.
During the course of the appellant's evidence, the learned Magistrate asked him whether he disagreed with any of the summary given by counsel for the respondent during her opening address, including the chronology of dealings between him and the respondent. The following exchange then occurred between the learned Magistrate and the appellant:[140]
[140] Appellant's evidence at the hearing, 5 March 2020, ts 16.
Appellant: Most of what the [respondent] has mentioned has become irrelevant. A lot of it is hearsay evidence which….
Magistrate: How - what do you mean by that?
Appellant: It's unsupported. There is no document supporting what the defendant has proposed.
Magistrate:Okay. Well, specifically, what are you referring to?
Appellant:The first and the main important thing is the document - is the address to which the defendant has sent all document - postal document, the address 79 goldfields Highway, Leonora - - -
Magistrate:Yes.
Appellant:- - - because that address was an address given by SkyMesh in 2007 or 2008 in agreement with Telstra when SkyMesh provided a satellite service. And that address was constructed or established between SkyMesh and Telstra without any consultation with me …
(emphasis added)
I have already noted that much of Ms Houghton's evidence, particularly in relation to what the respondent had done to connect the modem at the appellant's property to the internet, was inadmissible hearsay. Nonetheless, a review of the relevant part of the transcript of the proceedings before the learned Magistrate reveals that the appellant's objection to 'hearsay evidence' related to the issue of how and why the respondent had apparently sent correspondence to the fictitious Goldfields address.
Consequently, since Ms Houghton's evidence contained significant slabs of inadmissible hearsay, and ground 3 did not identify the 'hearsay evidence' the subject of the appeal, at the hearing of the appeal clarification was sought from the appellant in relation to this ground of appeal. The following exchange occurred:[141]
[141] Appeal ts 52 - ts 53.
LEVY DCJ:So you don't have any problem or issue in relation to what Ms Houghton said about the connection of the Internet, her evidence about what she says - - -
Appellant: I do.
LEVY DCJ:- - - other people did?
Appellant:I do. All that information may be correct but it relates only on the - the testing between the respondent exchange, the Telstra exchange, and my property. There is no testing at all showing between the exchange and the Telstra computers which would have recorded the metadata.
LEVY DCJ:You will need to explain that to me. So you're saying it related to testing between the Telstra exchange and your property - - -
Appellant:Yes.
LEVY DCJ:- - - not testing between the exchange and?
Appellant:And the Telstra computers, whatever - whatever hardware belonging to Telstra is supposed to manage the Internet activity.
LEVY DCJ:All right. And the effect of that is what?
Appellant:The effect of that was that there was no Internet connection. It's a little bit like having the switch of the house working but no electricity coming from the pole if you - - -
LEVY DCJ:I understand that but - so really are you saying there was simply no evidence before the magistrate that the Internet was connected?
Appellant:No, there has never been any evidence in the Magistrate Court that the Internet was connected, exactly.
And later, when further clarification of the ground of appeal was sought, the following exchange occurred:[142]
[142] Appeal ts 54.
LEVY DCJ:I'm following what you're saying. I am following exactly what you're saying, but the ground of appeal is that the magistrate admitted the [respondent's] hearsay evidence and after ignoring two of the claimant's requests for subpoena of documents that would approve the incorrectness of the [respondent's] hearsay evidence.
Appellant:Yes.
LEVY DCJ:So what's the incorrectness of the respondent's]hearsay evidence?
Appellant:The first one is about the fake address.
LEVY DCJ:Yes.
Appellant:And the second one is about the fact that during all the proceedings, the respondent insisted that the address - the date of the correction [sic] was 14 March 2017 when in reality, the technician had come the day before on 13 March 2017. So it was looking like the respondent was trying to ignore completely its unsuccessful attempt - - -
LEVY DCJ:Well, what's the hearsay evidence? What's the hearsay?
Appellant:The hearsay is that the technician did something on the 14th. And Ms Houghton said that the technician telephoned me on the 17th - sorry, on 14 March '17, and left a card in my mailbox, which did not happen.
LEVY DCJ:I'm simply asking you what parts of her evidence you are objecting to and why?
Appellant:I don't think she presented any evidence at all. She just, as you said, one is allowed to produce business record. All Ms Houghton was doing was talking about the business record without showing them.
From the above, the appellant's objection to 'hearsay evidence' seems to fall into two categories. First, he submitted that it relates to the evidence given by the respondent in relation to the fictitious Goldfields address.
Secondly, it relates to the respondent's evidence relating to the connection of the appellant's service to the internet, including Ms Houghton's evidence that the technician attended the appellant's address on 14 March 2017, not 13 March 2017 as suggested by the appellant.
In relation to this second category, first, whether the technician attended on 13 March or 14 March 2017 is inconsequential to the issues raised by the appellant's claim. Secondly, although framed as an objection to the respondent's 'hearsay evidence', in essence the appellant was simply asserting that the evidence was incapable of proving that the service was connected. That is an entirely different issue altogether and was not the subject of the ground of appeal.
It is the first category relating to the fictitious address that requires further consideration.
The ambiguity of ground 3 obviously caused the respondent difficulties in responding to it. In the written submissions filed in advance of the appeal, the respondent submitted that ground 3 should fail as:
1.it appeared to relate to the appellant's contention that the 'hearsay evidence' was inadmissible because it was not supported by any document;[143] or
2.that since the appellant had failed to take objection to the evidence at the trial, he should not now be permitted to raise a new argument on the appeal.[144]
[143] Appellant's Outline of Submissions dated 24 July 2020, par 74.
[144] Appellant's Outline of Submissions dated 24 July 2020, pars 77 - 79.
I have set out the true basis upon which the appellant relies upon ground 3 at [203] above. Consequently, it is only necessary to consider the argument relating to the fictitious Goldfields address.
It is not correct, as submitted by the respondent, that the appellant failed to object to the respondent's evidence about the Goldfields address, or that the appellant is now raising a new argument on the appeal.
It is clear that before Ms Houghton gave evidence, the appellant took issue with the summary given by counsel for the respondent of purported communications between himself and the respondent. I have already set out that exchange at [205] above.
Furthermore, in her evidence in relation to the activity log (exhibit 50), Ms Houghton made repeated references to letters sent by the respondent to the appellant, including letters apparently sent to the appellant on 18 May 2017[145] and 31 May 2017.[146]
[145] ts 44.
[146] ts 45.
Although Ms Houghton did not directly refer to the fictitious Goldfields address in her evidence-in-chief, given that this aspect of her evidence was obviously led with an intention to convey to the learned Magistrate that the appellant had failed to engage with the respondent or respond to letters sent to him, it is unsurprising that the appellant sought to explore the issue of to which address the letters were sent in his cross-examination of Ms Houghton.
Although Ms Houghton's evidence about the fictitious address and how the respondent had sourced it was almost entirely either inadmissible hearsay evidence or opinion evidence, it was evidence elicited by the appellant in cross-examination. Consequently, if ground 3 was in fact an argument that the learned Magistrate erroneously admitted the evidence at the hearing, that ground would be doomed to fail. However, that is not why the appellant now complains about the evidence. The real issue is that the learned Magistrate made erroneous findings of fact relating to the Goldfields address.
The respondent, in its Supplementary Submissions,[147] notes that the learned Magistrate's findings[148] with respect to the appellant's claim against the respondent for breach of contract included that the appellant had failed to engage with the respondent in its attempts to rectify any issue complained of by the appellant with respect to the internet service. Consequently, the respondent submits that the learned Magistrate's findings on this issue were fatal to the appellant's contractual claim.
[147] Supplementary Submissions, pars 33 - 34.
[148] ts 93 - ts 94.
The 'incorrectness of the [respondent's] hearsay' as articulated in the ground of appeal, is actually a reference to the appellant's contention that the learned Magistrate incorrectly concluded that he had provided the fictitious address.
Whilst the grounds of appeal bind the parties and provide the jurisdiction within which a court of appeal is authorised to act, some allowance must be made for an unrepresented litigant. Furthermore, the proper construction of ground 3 and what the appellant intended to convey by it was explored during the appeal.
The learned Magistrate's reasons relating to the Goldfields address included findings that :
(a)The appellant had provided the fictitious address when he operated his satellite service through SkyMesh;
(b)the appellant had 'concocted' the Goldfields address for the purposes of obtaining satellite services from SkyMesh;[149]
(c)when the appellant's conduct was considered, he 'was not ready and willing to engage with [the respondent]';[150] and
(d)there was no fault on the part of the respondent if any letters, including a letter of 6 June 2017, were sent to the appellant at the Goldfields address.
[149] Magistrate's reasons for decision, 20 March 2020, ts 95.
[150] Magistrate's reasons for decision, 20 March 2020, ts 94.
These findings, which were central to her Honour's decision that the respondent had not breached the contract with the appellant,[151] were not supported by the evidence and amounted to erroneous conclusions leading to the appellant's claim for breach of contract being dismissed.
[151] Magistrate's reasons for decision, 20 March 2020, ts 96.
The appellant has made out ground 3.
Has the appellant proved that the respondent breached the contract?
I have set out the relevant evidence at [46] - [116] above. This includes the documents marked 'C1' and 'E1' which form part of exhibit 2. I am satisfied on the balance of probabilities that the respondent did breach its contract by failing to provide the appellant with an internet service.
What damages did the appellant suffer?
Although the appellant has made out ground 3 and proved to the requisite degree that the respondent breached the contract, there is no evidence to support any of the heads of damages relied upon by the appellant. There is no evidence to demonstrate that the appellant did anything to mitigate his loss, or that it was not possible for the appellant to mitigate his loss.
Conclusion on damages
In the circumstances, the appellant is only entitled to nominal damages, fixed in the sum of $100.
Orders
I now make the following orders:
1.Leave to appeal granted.
2.Ground 3 on the appeal is upheld.
3.Grounds 1 and 2 dismissed.
4.Appellant awarded nominal damages in the sum of $100.
5.Either party is at liberty to apply in relation to the issue of costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DF
Associate to Judge Levy
23 DECEMBER 2020
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