Pesec v Neo International Pty Ltd ACN 143 580 269 Trading as Gaba Design Print Distribution Canberra (Civil Dispute) - [2020] ACAT 34

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

PESEC v NEO INTERNATIONAL PTY LTD ACN 143 580 269 TRADING AS GABA DESIGN PRINT DISTRIBUTION CANBERRA (Civil Dispute) [2020] ACAT 34
XD 1127/2019
Catchwords: CIVIL DISPUTE – applicant contracted with respondent to deliver ‘how to vote’ pamphlets to households before an election – applicant seeks refund of printing and distribution costs claiming most households did not receive flyers – whether there was a breach of contract – onus on applicant to prove breach

Tribunal: Senior Member J Lennard

Date of Orders: 12 May 2020
Date of Reasons for Decision: 12 May 2020

AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL XD 1127/2019

BETWEEN:
ANTHONY PESEC
Applicant

AND:
NEO INTERNATIONAL PTY LTD ACN 143 580 269 TRADING AS GABA DESIGN PRINT DISTRIBUTION CANBERRA
Respondent

TRIBUNAL: Senior Member J Lennard

DATE:12 May 2020

ORDER

The Tribunal orders that:

The application is dismissed.
………………………………..
Senior Member J Lennard

REASONS FOR DECISION

Material facts

The applicant was an independent ACT candidate for the Senate at the Federal election in May 2019.
The applicant had 165,000 ‘How to Vote’ flyers printed by inPress in Sydney. The total cost was $4,966.36. These flyers were delivered to the respondent’s premises in Canberra. The respondent was to deliver the flyers to suburbs in Canberra.
An associate of the applicant contacted the respondent by email on 9 May 2019. The election date was 18 May 2019. On 9 May 2019 at 4:08pm the respondent emailed an estimate for the distribution of the flyers in the amount of $12,523.50. The estimate contained the following statement: “by accepting the quote you agree to Terms & Conditions mentioned on our website”. Clause 5 of those terms and conditions is reproduced below:
Letterbox Distribution Services
This section 5 applies to the letter box distribution service forming the whole or part of the services provided by Gaba Design Print Distribution Canberra.
5.1 The Customer acknowledges and agrees that:
5.1.1 Its materials for distribution may be distributed together with, and may be bundled with, materials of other customers of Gaba Design Print Distribution Canberra, and
5.1.2 Gaba Design Print Distribution Canberra does not guarantee full distribution of all materials to all households within the agreed distribution area and accepts no liability for any failure to deliver to all households with agreed distribution areas. Factors beyond Gaba Design Print Distribution Canberra’s control such as health and safety issues, hazardous conditions, adverse weather conditions, accessibility of letterboxes, signs on the letterboxes and the independent nature of Gaba Design Print Distribution Canberra’s distribution contractors may adversely affect distribution. We confirm that the maximum achievable penetration level will be 80% excluding the ‘NO JUNK MAIL’ letterboxes.
5.1.3 At any given time, a particular agreed distribution area may not be fully covered, or covered at all, by Gaba Design Print Distribution Canberra’s distribution network. Gaba Design Print Distribution Canberra reserves the right to change the scope and size or distribution areas at any time.
5.1.4 Letterbox counts provided to clients via our website or in writing or an estimation and should not be considered as actual quantities. The company uses various agencies, including Australia Post to estimate the number of letterboxes within postcode sectors in or specific geographical areas, as the data is provided by third parties. As a result, Gaba Design Print Distribution Canberra does not guarantee the accuracy of letterbox counts.
The applicant says that his campaign team was assured that all flyers would be delivered prior to election day. There was no independent evidence to support this claim.
The applicant seeks a refund of all printing costs and all delivery costs. He says that the there is a gross breach of contract by the respondent and that the “overwhelming majority of households in Canberra did not receive the flyers”.
The applicant gave evidence that in the week leading up to election day, he was campaigning at pre polling booths and it became apparent to him “that very few people had received the flyers in their letterboxes in the days leading up to election day”. The applicant contacted the respondent on Friday, May 17, the day before the election, to relay the feedback that he was receiving from voters which indicated that the flyers had not been delivered.
The respondent replied by email at 3:41pm on 17 May 2019:
please note we have finished most of the suburbs. Few suburbs (including Chapman) are still being done. I will send you the record on Monday as distribution is going on at the moment and most of our walkers will return a GPS tracker tomorrow or Monday.
The election was held the following day and the applicant’s candidature was not successful.
The applicant gave evidence that he complained to the respondent a few days after the election. On 22 May 2019 the respondent provided to the applicant copies of GPS tracking maps. A copy of those maps was in evidence before the Tribunal. Those maps indicate that the distribution walkers delivered to suburbs across Canberra and had visited the majority of streets in those suburbs.
The applicant gave evidence that he had encountered many people at the polling booths who stated to him that they had not received his ‘How to Vote’ flyers. They also gave evidence that on 29 May 2019 he had sent an email to persons who had subscribed to his campaign asking them whether they had received the flyers and five of the 30 persons who responded had received the ‘How to Vote’ flyers.
In addition, the applicant provided a copy of a tweet dated 15 August 2019, which contained a photo showing a number - about 50 - of the applicant’s ‘How to Vote’ flyers, apparently thrown into a street and being blown around the street. There is no information as to the location of this street.
The applicant provided evidence of a tweet dated 14 June 2019 stating that election material had been delivered in that week.
The evidence provided by the applicant was largely anecdotal and at the highest establishes that some people did not receive the ‘How to Vote’ flyers.
The respondent drew attention to the terms and conditions of the contract and emphasised that they did not guarantee delivery to 100% of households.
The respondent provided evidence from the GPS trackers of their distributors, for the week prior to the election. These show that the persons distributing the flyers to their letterboxes had visited the majority of houses and suburbs in Canberra.
The respondent conducted an investigation by doorknocking various streets and suburbs and gave evidence that while some householders had not received the flyers, they were satisfied that the flyers had been delivered in accordance with the contract.
The respondent gave evidence that there were several reasons that household might not receive a flyer: No Junk Mail signs, inaccessible letterboxes, dogs, unit complexes which were either inaccessible or prohibited advertising material, and human error.
The respondent submitted that there were a number of reasons why a voter might say they had not received the flyer: they had not received it; it had been received in the household but not seen by the voter; it was received with other advertising material; it had been received but thrown into the bin without being read; it had been received but the voter was not interested in the information; the voter may not want to engage with the candidate. The respondent further argued that the Tribunal should not take a statement from a voter that they had not received or seen the flyer to indicate that it had not been delivered to the household.
The respondent gave evidence that between five and 10% of flyers were returned by the delivery walkers but notes that this is within the limits of the terms of the contract.

Conclusions

The onus of proof is upon the applicant in civil matters. The applicant’s claim is based upon an alleged breach of contract by the respondent. The applicant must establish, to the civil standard of proof, that is on the balance of probabilities the respondent has failed to comply with the terms of the contract.
The evidence of the applicant is largely anecdotal, but does establish:
(a)some voters had informed the applicant at both pre polling and on polling day that they had not received the ‘How to Vote’ flyer;
(b)that persons who were engaged in his election campaign had informed him in response to an email that they had not received the ‘How to Vote’ flyer;
(c)that at least one person informed him that they had received his election information after the date of the election;
(d)in August of 2019, some of the ‘How to Vote’ flyers, were photographed apparently discarded in a street;
(e)the applicant and his campaign manager gave evidence that he had polled better in areas where his campaign manager had personally delivered the ‘How to Vote’ flyers to letterboxes. I note however that they produced no independent evidence to support this, although such information would have been available from the Australian Electoral Commission.
To be entitled to a refund of the entire cost of delivery and the entire cost of printing, the applicant would have to establish a breach of the contract so severe as to deprive him of any benefit from the contract. The evidence does not support that conclusion.
The respondent has provided evidence which establishes:
(a)that the majority of households in the majority of suburbs were shown on the GPS tracking maps to have been visited by a distribution walker in the week leading up to the election;
(b)a follow-up investigation conducted by others indicated that while some householders had not received the flyers, the distribution of the flyers was widespread across Canberra suburbs.
I have also taken into account that the delivery was required to be done in the week prior to the election, that the contract was formed on 9 May 2019, and that the material for distribution was delivered to the respondent on that day. The first complaint was raised by the applicant on 17 May 2019, the day prior to the election. The contract required that delivery be completed by Friday, 17 May 2019. It is possible therefore that some voters, who were pre polling lived in suburbs where delivery was not complete on the day they voted, but may have been delivered to prior to 17 May 2019.
On the evidence before me, I cannot be satisfied, on the balance of probabilities, that the respondent failed to comply with the contract, in accordance with its terms, noting especially clause 5.
Given my conclusion above it is not necessary to deal in detail with the question of damages. However, I note that the applicant provided no submissions or evidence as to the effectiveness of distributing ‘How to Vote’ flyers. The respondent gave evidence that they would expect a 1% return rate on such advertising material.

Order

The application is dismissed.
……………………………..
Senior Member J Lennard
HEARING DETAILS

FILE NUMBER:	XD 1127 / 2019
PARTIES, APPLICANT:	Anthony Pesec
PARTIES, RESPONDENT:	Neo International Pty Ltd ACN 143 580 269 Trading as Gaba Design Print Distribution Canberra
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBERS:	Senior Member J Lennard
DATES OF HEARING:	14 January 2020