Gould v Binary Systems Pty Ltd T/As Astroshop (Civil Dispute) - [2016] ACAT 11

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GOULD v BINARY SYSTEMS PTY LTD T/AS ASTROSHOP

(Civil Dispute) [2016] ACAT 11

XD 1123/2015
Catchwords: CIVIL DISPUTE – Australian Consumer Law – acceptable quality – fitness for purpose – whether a reasonable consumer would regard goods as acceptable – representations about the quality of a product need to be linked to the represented purpose of the product

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 16, 17, 18

Competition and Consumer Act 2010 (Cth) sch 2 ss 11, 54, 61, 271
Consumer Guarantee Act 1993 (NZ) s 7
Fair Trading (Australian Consumer Law) Act 1992 (ACT) s 6
Trade Practices Act1974 (Cth) (repealed) s 66

Cases cited:Contact Energy Ltd v Jones [2009] 2 NZLR 830
Medtel Pty Ltd v Courtney (2003) 130 FCR 182
Rasell v Cavalier Marketing (Australia) Pty Ltd [1991] 2 Qd R 323

List of

Texts/Papers cited: Senate Economics Legislation Committee, Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 [Provisions], Report May 2010

Tribunal: President G C McCarthy

Date of Orders: 23 February 2016
Date of Reasons for Decision: 23 February 2016

AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL XD 1123/2015
BETWEEN:
ROSS GOULD
Applicant

AND:
BINARY SYSTEMS PTY LTD
TRADING AS
ASTROSHOP
Respondent

TRIBUNAL: President G C McCarthy

DATE: 23 February 2016

ORDER

The Tribunal Orders that:
1.The application is dismissed.

………………………………..
President G C McCarthy

REASONS FOR DECISION

Introduction

The applicant, Mr Ross Gould (Mr Gould), is an experienced amateur astronomer. He claims, and I accept, that he has ‘decades’ of experience using telescopes. I accept he has developed over many years a strong understanding of the varying features and qualities that different telescopes can display.
The respondent, Binary Systems Pty Ltd (Binary), carries on a small retail business selling telescopes and other equipment to amateur astronomers and perhaps others. It trades under the business name, AstroShop. Its directors are Mr Steve Massey and Ms Sandra Massey.
On or about 28 June 2014, Mr Gould purchased a Vixen VMC260L 260mm f/11.5 OTA telescope from Binary for a purchase price of $4,649 plus $120 for freight. I will refer to this telescope as the VMC telescope.
This matter concerns Mr Gould’s claim that Binary did not comply with a statutory guarantee under section 54 of the Australian Consumer Law (ACT) (the ACL)[1] because the VMC telescope was not of acceptable quality as defined in section 54(2). The ACL applies in this matter because Mr Gould ordinarily resides in the ACT.[2]
[1] The Fair Trading (Australian Consumer Law) Act 1992 (ACT), section 6(a) relevantly includes the Australian Consumer Law at schedule 2 to the Competition and Consumer Act 2010 (Cth), and section 7 permits it to be referred to as The Australian Consumer Law (ACT)
[2] Fair Trading (Australian Consumer Law) Act 1992 (ACT ) section 11(1)(c)
Mr Gould seeks orders that Binary pay him $4,649 by way of refund of the purchase price for the VMC telescope, his freight costs ($120), the Tribunal filing fee ($140) and his cost of a company search ($19). Where the amount claimed is less than $10,000, the Tribunal has jurisdiction to hear Mr Gould’s application under sections 16(i), 17 and 18 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act).

The hearing

I heard Mr Gould’s application on 18 January 2016. Mr Gould appeared in person. Mr and Ms Massey attended the hearing by telephone representing Binary.
Neither party provided a witness statement from any witness, or any oral evidence. However Mr Gould, Ms Massey and Mr Massey provided me with documents as evidence in support of the parties’ respective cases. I have read all of those documents and taken them into account when reaching my decision. Mr Gould, Ms Massey and Mr Massey also gave me further information orally during the hearing. I have taken that information into account, where relevant, for the purpose of making my decision.

The relevant facts

Mr Gould told the Tribunal that he did his own research when deciding to buy the VMC telescope. He understood from his research that the VMC telescope was a good quality telescope suitable for his purposes and for which he was willing to pay the requested purchase price. Mr Gould acknowledged that he contacted the AstroShop only because it was a business from which he could buy the VMC telescope.
Mr Gould told the Tribunal that he did not rely upon any advice from Ms Massey or Mr Massey regarding the quality of the VMC telescope or its suitability for his purposes. However, at hearing, he provided the Tribunal with a printout from AstroShop’s website as at 23 November 2015 concerning the VMC telescope. He told the Tribunal, and Ms Massey appeared to accept, that the description of the VMC telescope on the website had not changed since at least June 2014 prior to Mr Gould purchasing the telescope.
Concerning the VMC telescope, the website materially stated as follows:
PRODUCT DETAILS – ASTROSHOP
VIXEN – VMC 260L/260mm f/ 11.5 OTA
Why muck around with SCT mirror flop drama and dewing up corrector plates when you can own a superior quality Vixen. The superb Vixen large aperture Catadioptric design consists of two mirrors and two corrector lenses, one of which is a meniscus lens. A corrector lenses, in front of the secondary mirror, virtually eliminate spherical aberration and field curvature. Focus is achieved by a primary mirror movement.
If your primary goal is imaging, this OTA is an excellent optical step above the SCT/RCT and approaches the more expensive astrographs in quality. (emphasis added)
The website then set out objective details about the VMC telescope’s aperture, focal length, resolving power, visual limiting magnitude, light gathering power, diameter, visual back, finderscope, photography, focusing and weight, none of which Mr Gould disputed.
Mr Gould told the Tribunal that the statements on the website about the VMC telescope being of ‘superior quality’ and ‘superb’ were consistent with his own research, although he did not rely on those statements on the website when deciding to buy it. In short, neither Binary nor Ms Massey nor Mr Massey performed any role but to supply the VMC telescope to Mr Gould.
Mr Gould took delivery of the telescope in July 2014. Numerous emails then passed between Mr Gould and Mr Massey or Ms Massey over the following months in which Mr Gould expressed his dissatisfaction with the VMC telescope. I was told, and I accept, that the emails were but a sample of the correspondence from Mr Gould to Mr Massey or Ms Massey detailing the deficiencies with the VMC telescope as Mr Gould perceived them.
I have considered all the emails that were tendered in this case. They provide highly technical and detailed reasons on Mr Gould’s part for why, in his opinion, “it’s clear enough that my copy [the word ‘copy’ I take to mean the VMC telescope that Mr Gould purchased] of the VMC 260L is not performing at the level that Vixen’s promotional material on it would suggest.”
In another email, by way of example, Mr Gould concluded by stating:
Overall, I can only say the ‘scope is extremely disappointing because of the thermal images. A pity I hadn’t read the book earlier; I’d have saved us both a lot of angst, because I would not have bought the ‘scope, given that knowledge.
After approximately two months of email correspondence from Mr Gould detailing his dissatisfaction with the VMC telescope, on 18 September 2014 Ms Massey offered Mr Gould the opportunity to return the telescope in order for Binary to return it to the manufacturer, Vixen, in Japan for Vixen to ascertain whether it was faulty and (if so) to repair or replace the telescope as appropriate depending on the existence or nature of the fault.
Mr Gould did not take up that offer. Rather, he continued to correspond with Ms Massey and Mr Massey, and at length, about the different qualities of the VMC telescope and his further research into its use and design. His correspondence makes clear, and Mr Gould confirmed at the hearing of this matter, that his concerns about the quality of the VMC telescope were more about its fundamental design rather than any perceived fault or defect with the particular example (or copy) of the VMC telescope that he had purchased.
In an email that I was told Mr Gould sent on 10 September 2014, Mr Gould set out his concerns with the VMC telescope concluding with a paragraph as follows:
Anyway, time to ask Vixen if their design is intended to mimic low-order SA at an obvious level, while still being capable of good images. From reports I’ve read, comments online recently, and notes I’ve had from a happy VMC 260 owner in Western Australia, it’s obvious these can be good telescopes. My example is thus far not living up to that.
During October and November 2014 at least, Mr Gould continued to send email correspondence to Binary complaining about the performance of his telescope.
By email sent on 17 February 2015, after corresponding with the manufacturer (Vixen) and in an endeavor to address Mr Gould’s concerns, Ms Massey again invited Mr Gould to return the VMC telescope for repair or replacement as appropriate, if a fault was found, and at no cost to him including the freight. By email sent on 23 March 2015, Ms Massey confirmed the offer. Again Mr Gould did not take up the offer.
At hearing Mr Gould agreed that the offers in September 2014, February 2015 and March 2015 were made but told the Tribunal he did not take up the offers because he was concerned that Vixen would claim the telescope was ‘fine’, when in his view it was not, and because (in his opinion) the problems were more to do with the inherent design of the VMC telescope rather than any fault with his particular example of it.
Mr and Ms Massey told the Tribunal, and I accept, that they have sold many examples of the VMC 260 telescope, and had not previously received complaints about it. They also told the Tribunal, and I accept, that after offering Mr Gould the opportunity to return the telescope to Binary for it to be sent to the manufacturer in Japan for testing of any fault, they heard nothing further from Mr Gould until June 2015 when he unilaterally returned the telescope to them.
As best I can ascertain, Binary either refused to accept delivery of the telescope when Mr Gould attempted to return it in June 2015, or returned it to Mr Gould. Binary did not refund the purchase price, and Mr Gould confirmed at hearing that he is in possession of the telescope.
At hearing Mr Gould stated he relied on section 54 of the ACL as the basis for his claim, which I understand to mean a claim that Binary breached its statutory guarantee that the VMC telescope be of acceptable quality. In his application and at hearing Mr Gould referred to and relied upon the statements on AstroShop’s website that described the telescope as ‘superior quality’ and ‘superb’, as set out in paragraph 10 above, and contended Binary was in breach of section 54 because the VMC telescope “proved not to have those qualities”.
Section 54 of the ACL states:
54Guarantee as to acceptable quality
(1)If:
(a)a person supplies, in trade or commerce, goods to a consumer; and
(b)the supply does not occur by way of sale by auction;
there is a guarantee that the goods are of acceptable quality.
(2)Goods are of acceptable quality if they are as:
(a)fit for all the purposes for which goods of that kind are commonly supplied; and
(b)acceptable in appearance and finish; and
(c)free from defects; and
(d)safe; and
(e)durable;
as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).
(3)The matters for the purposes of subsection (2) are:
(a)the nature of the goods; and
(b)the price of the goods (if relevant); and
(c)any statements made about the goods on any packaging or label on the goods; and
(d)any representation made about the goods by the supplier or manufacturer of the goods; and
(e)any other relevant circumstances relating to the supply of the goods.
(4)If:
(a)goods supplied to a consumer are not of acceptable quality; and
(b)the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer’s attention before the consumer agreed to the supply;
the goods are taken to be of acceptable quality.
(5)If:
(a)goods are displayed for sale or hire; and
(b)the goods would not be of acceptable quality if they were supplied to a consumer;
the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer’s attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent.
(6)Goods do not fail to be of acceptable quality if:
(a)the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and
(b)they are damaged by abnormal use.
(7)Goods do not fail to be of acceptable quality if:
(a)the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and
(b)the examination ought reasonably to have revealed that the goods were not of acceptable quality.
Ms Massey did not refer me to any provision of the ACL on which she relied in Binary’s defence of the application, but submitted that she and Mr Massey had ‘bent over backwards’ to assist Mr Gould with his concerns about his VMC telescope and had acted in full compliance with the ACL.

Consideration of the claim

For the purposes of section 54(1) of the ACL, I accept:
a)Binary is a legal person that supplied, in trade or commerce, goods (namely the VMC telescope) to a consumer (namely Mr Gould);
b)the supply did not occur by way of sale by auction; and
c)Binary’s supply of the VMC telescope was subject to a guarantee that the goods (namely the VMC telescope) be of acceptable quality as defined in section 54(2) of the ACL.
Section 54(1) imposes on a supplier a guarantee of strict liability, in the sense that the supplier of goods (in this case Binary) is in breach of the statutory guarantee if the goods are not of acceptable quality, as defined in section 54(2) of the ACL, even if the supplier is not at fault.
In issue is whether Mr Gould has established on the balance of probabilities that the VMC telescope was not of acceptable quality, having regard to the matters set out in section 54(3). Neither party suggested that any of the ‘excuse’ provisions in sections 54(4) – (7) is applicable in this case.
In determining whether the VMC telescope was of acceptable quality, I need to consider whether a reasonable consumer would regard each of the five features of quality set out in section 54(2)(a) – (e) as met. Section 54(2) requires that I do so, not by reference to a particular consumer (in this case Mr Gould) but by applying an objective test. In other words, the test is not whether Mr Gould considered the VMC telescope to be of acceptable quality, per the five features, but whether “a reasonable consumer fully acquainted with the state and condition of the goods… would regard [the VMC telescope] as acceptable” in relation to each feature.[3]
[3] See Rasell v Cavalier Marketing (Australia) Pty Ltd [1991] 2 Qd R 323 at 348. In Rasell, the Court was considering section 66(2) of the former Trade Practices Act 1974 (Cth), but the principles that were implied under section 66(2) are now express under section 54(2)(a) of the ACL
The guarantee of acceptable quality, rather than merchantable qualities as defined in former section 66(2) of the Trade Practices Act1974 (Cth) (repealed), entailed an adoption of acceptable quality as defined in section 7(1) of the Consumer Guarantee Act 1993 (NZ).[4] However, when commenting on the meaning of ‘acceptable quality’ in Contact Energy Ltd v Jones,[5] the High Court of New Zealand said:
Acceptable quality is a composite and context-specific attribute. I adopt the observations of Ormond LJ speaking of merchantable quality in Cehave v Bremer Handelsgesellschaft mbH:
It is a composite quality comprising elements of description, purpose, condition and price. The relevant significance of each of these elements will vary from case to case according to the nature of the goods in question and the characteristics of the market which exists for them. This may explain why the formulations of the test of merchantable quality vary so much from case to case.
[4] Senate Economics Legislation Committee, Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 [Provisions], Report May 2010 at [4.8]
[5] [2009] 2 NZLR 830 at [95]
Referring to the first feature in section 54(2), fitness for all the purposes for which goods of that kind are commonly supplied (per section 54(2)(a)), Mr Gould contended that the telescope was not fit for the purposes (or some of the purposes) for which he bought it. His correspondence with Ms and Mr Massey detailed at great length his opinion about the deficiencies in the telescope’s performance.
In particular, Mr Gould chose and bought the VMC telescope especially for the purpose of high-power observing of double star systems. In his opinion the telescope’s performance for this purpose was ‘disappointing’.
As evidence to support his claim that the VMC telescope was not acceptable for this purpose, Mr Gould tendered a letter dated 11 December 2015 from Mr Mark Suchting who states he has “been involved in manufacture and testing of astronomical optics for around 40 years.” Ms Massey said she did not have any questions for Mr Suchting, and that it was sufficient for her purposes to make submissions about the content of the letter. She did not object to me receiving the letter, and I took it into evidence on that basis.
Mr Suchting’s letter sets out Mr Gould’s reported problems with his VMC telescope. Mr Suchting states that he directed Mr Gould to conduct some comparative tests using the VMC telescope and a Celestron 9.25 telescope, and to send the results (ie the comparative images) to Mr Suchting. In his letter, Mr Suchting then commented on the comparative images that Mr Gould provided, stating in each case that the images using the VMC telescope were poorer than those using the Celestron 9.25 telescope.
Ms Massey asked me to note that Mr Suchting’s opinions were based on results that Mr Gould had provided. She submitted that the results might have been distorted (intentionally or unintentionally) or taken under different conditions which in turn would defeat any real value in the opinions that Mr Suchting expressed about them. I acknowledge Ms Massey’s concerns, and she was right to express them. However, for the reasons that follow, I did not need to consider concerns about the integrity of the results because Mr Suchting’s opinions about the comparative images, as photographed through the two telescopes, are not directed to the question whether Binary breached section 54 of the ACL.
To address possible apprehension on Mr Gould’s part, I have no basis to conclude that Mr Gould conducted the tests in anything other than a fair and objective manner or that the images he sent to Mr Suchting were faithfully produced results of those tests.
Mr Gould’s opinion that the VMC telescope was not suitable for conducting high-power observing of double star systems may be genuinely held, but (by itself) it is not to the point. As stated in paragraph 30 above, the test for the purposes in section 54(2)(a) is objective. In Rasell, the Court said:
The definition of merchantable quality requires a determination of two matters. The first matter for determination is the identification of the “purpose or purposes for which goods of that kind are commonly bought”. The second matter for determination is whether the goods are as fit for the purpose, or purposes, so identified, as is reasonable to expect having regard to the listed criteria. This is an objective test.
Goods may have more than one normal purpose e.g. a utility motor vehicle has two obvious purposes, namely, to act as a means of transport to convey the driver from A to B and also to act as a means of transport to convey cargo from A to B. Some consumers may acquire a utility solely as a means of personal transport; others may acquire it for both purposes. In my view, as a matter of construction and as a matter of legislative intent, the section requires that all normal purposes for which goods are commonly bought be brought into consideration. Fitness is to be tested against each of those purposes and none are to be excluded.

It follows that in order to establish that the VMC telescope was not of acceptable quality by reference to section 54(2)(a), Mr Gould needed to establish firstly the purposes for which telescopes of that kind are commonly supplied (and, on Mr Gould’s case, that those purposes include high-powered double star observing), and then (by reference to those purposes), that a reasonable consumer would not regard the VMC telescope as acceptable.
Mr Gould made no real attempt to address either issue. His focus was entirely on the purposes for which he personally wished to use the telescope and for which he personally found it not to be acceptable. For example, there was no evidence to establish that VMC telescopes or telescopes of that kind are commonly supplied for the purpose of high-powered double star observing or – even if that were so – that a reasonable consumer fully acquainted with the state and condition of the VMC telescope would regard its performance for that purpose as not ‘acceptable’. Mr Suchting’s opinions about the comparative images from the two telescopes, by themselves, therefore do not assist in the absence of any evidence about the purposes of either telescope.
To illustrate the concern, I received in evidence a report from Mr Steven Quirk, who states he has experience in making telescope mirrors and in testing them. Mr Quirk states:
The Vixen telescope was primarily designed for wide, flat field photographic use as well as general use… in my opinion the VMC 260L was not the best or either the correct choice for [Mr Gould’s] type of observing.
Mr Quirk’s statement raises doubts as to whether the VMC telescope or telescopes of that kind were even intended for high-powered double star observing, before one gets to the question whether a reasonable consumer would regard its performance for that purpose as acceptable.
Mr Gould’s email, in which he referred to a person from Western Australia who was satisfied with the performance of his ‘copy’ of the VMC telescope, also illustrates the concern.
It is for the applicant to prove his case on the balance of probabilities. On the evidence before me I am unable to say or conclude one way or another whether the VMC telescope was commonly supplied for the purpose of high-powered double star observing, much less whether its performance for that purpose would have been acceptable from the viewpoint of a reasonable consumer.
When deciding whether a reasonable consumer would regard the goods as acceptable, in relation to each of the five features in subsection 54(2), I must have regard to the matters set out in subsection (3). However I have very little if any evidence that enables me to do so.
Mr Gould relied on the representation on the AstroShop website that the VMC telescope was ‘superb’ and of ‘superior quality’. He submitted this was not so. Ms Massey disagreed, and maintained that the VMC telescope is ‘superb’ and of ‘superior quality’.
Pursuant to section 54(3) of the ACL, I must have regard to any representation made by the supplier (ie Binary) about the telescope, but I must do so only for any of the purposes set out in section 54(2). This presents at least two difficulties for Mr Gould.
First, the words ‘superb’ and ‘superior quality’ are representations of conclusion or opinion about the telescope and about which minds might reasonably differ, rather than representations of objective fact.
In my view, for the representations to be relevant to any of the purposes set out in section 54(2), they need to be linked to a purpose. For example, relevant to this case, if a representation had been made that the VMC telescope is ‘superb’ for the purpose of high-powered double image star observing, and Mr Gould had established that VMC telescopes are a kind of telescope that is commonly supplied for that purpose, the representation might have raised the standard that a reasonable consumer might regard as acceptable for a VMC telescope for that purpose. However, that did not occur. The representation on the AstroShop website was not directed to any purpose at all.
Second, Mr Gould submitted that the VMC telescope was not ‘superb’ or of ‘superior quality’ because, in his opinion, it had significant ‘thermal problems’. Again, that may or may not be so, but it is not to the point because Binary’s representation that the VMC telescope was ‘superb’ was not linked to any features or properties of the telescope that might, directly or indirectly, bear upon whether a reasonable consumer would consider the ‘thermal problems’ as acceptable for a telescope of this kind. Indeed, I have no evidence that allows me to form a view about what a reasonable consumer would consider about the ‘thermal problems’ or the extent to which they impaired the purposes for which the VMC telescope, or telescopes of that kind, are commonly supplied.
Mr Gould submitted that the VMC telescope was expensive, which may be relevant under section 54(3)(b) when determining whether a reasonable consumer would regard the VMC telescope as being of acceptable quality. In Medtel Pty Ltd v Courtney[6], Branson J said:
What it would be reasonable to expect in terms of fitness for purpose of an inexpensive product might be quite different from what it would be reasonable to expect of an expensive product of the same kind.
[6] (2003) 130 FCR 182 at [64]
However I have no evidence as to how the price of the VMC telescope compared with the prices of other telescopes, either generally or those that are commonly supplied for the purposes for which VMC telescopes are supplied, to form a view as to whether it was expensive or cheap.
Concerning section 54(2)(b), Mr Gould did not suggest the VMC telescope was not acceptable in its appearance and finish.
Concerning section 54(2)(c), it was not possible to determine whether the VMC telescope was free from defects because Mr Gould neither identified a defect in its manufacture nor took up the offer for him to return the telescope in order for the manufacturer to ascertain whether there were defects. Matters therefore did not progress to the question that I would have needed to consider, namely whether a reasonable consumer would have regarded the telescope as acceptable notwithstanding the defect. In any event, the question whether Binary had an obligation to correct any defect never arose because Binary twice offered to rectify any defects or replace the telescope as appropriate. The offers were never taken up.
Concerning sections 54(2)(d) and (e), there was no suggestion on Mr Gould’s part that the VMC telescope was not safe or durable.

Conclusion

For these reasons, I am not satisfied that the VMC telescope was not of acceptable quality by reference to any of the five features in section 54(2) of the ACL.
At hearing, Mr Gould asked me to consider also section 271 of the ACL, which allows an affected person (ie Mr Gould) to recover damages from the manufacturer of goods (ie Vixen) where the statutory guarantee under section 54 is not complied with. That section does not assist Mr Gould because he has brought this action against Binary not the manufacturer. I add that a claim against Vixen would not have succeeded in any event because I am not satisfied that the guarantee under section 54 was not complied with.
At hearing, Ms Massey was anxious for me to appreciate that Mr Gould did not rely on the skill or judgement of anyone at the AstroShop when he decided to buy the VMC telescope. That circumstance may have been relevant had Mr Gould contended that the VMC telescope came with a guarantee that it was fit for a particular purpose which he had made known to Binary when electing to purchase it. Such a guarantee applies under 61 of the ACL, but “does not apply if the circumstances show that the consumer did not rely on… the skill or judgment of the supplier”.
I put the issue to one side because Mr Gould properly acknowledged that he did not rely on anything said by anyone at the AstroShop regarding the VMC telescope’s fitness for any particular purpose. Quite properly, Mr Gould does not contend that Binary was in breach of any guarantee that it was fit for a particular purpose that he made known to Binary. He would have failed on that ground had he done so.
For these reasons, the application will be dismissed.
………………………………..

President G C McCarthy

HEARING DETAILS

FILE NUMBER:	1123/2015
PARTIES, APPLICANT:	Mr R Gould
PARTIES, RESPONDENT:	Binary Systems Pty Ltd
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBERS:	President G C McCarthy
DATES OF HEARING:	18 January 2016