Blampain v Telstra Corporation

Case [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:

  1. 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.

  2. 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. 

  3. The appellant originally filed a general procedure claim against the respondent on 10 April 2019 claiming damages arising…

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Details
AGLC
Blampain v Telstra Corporation [2020] WADC 166
Case
[2020] WADC 166
Decision Date

CaseChat Overview and Summary

Blampain v Telstra Corporation is a case that concerns the dispute between the appellant, Blampain, and the respondent, Telstra Corporation. Blampain, a consumer, claims that although his telephone service was connected by Telstra, his internet service was not. However, Telstra insists that both services were connected and operational. The case was originally heard in the Magistrates Court and was subsequently appealed to the District Court. The appeal was by way of a re-hearing, requiring Blampain to demonstrate error in the Magistrate's decision.

The legal issues in this case primarily revolve around the sufficiency and admissibility of the evidence presented in the Magistrates Court. Specifically, Blampain argued that the evidence provided by Telstra regarding the connection of his internet service was hearsay and lacked proper documentation. Blampain also objected to the hearsay nature of the evidence provided by Telstra regarding the connection of the internet and the subsequent testing that showed no connection between Telstra's computers and his property. The court had to determine whether the Magistrate erred in admitting this evidence and whether such errors led to an unjust outcome.

The District Court, in reviewing the case, noted that Blampain had to demonstrate that the Magistrate's decision was based on legal, factual, or discretionary error. The court examined the evidence presented at the original hearing, including Blampain's claim that he had not received the internet service despite following the necessary steps. The court also considered the hearsay objection raised by Blampain regarding the evidence of internet connection and the metadata testing. Ultimately, the court found that Blampain had not sufficiently demonstrated that the Magistrate's decision was based on an error, and thus the appeal was dismissed.

In summary, the District Court upheld the decision of the Magistrate, finding no legal, factual, or discretionary error in the original judgment. The court did not find the hearsay objection to be sufficient grounds for overturning the Magistrate's decision. The appeal was dismissed, and the original decision of the Magistrates Court was confirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. 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. 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.