Quach v Samsung Electronics Australia Pty Ltd ACN 002 915 648 (Civil Dispute)
[2021] ACAT 36
•4 May 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
QUACH v SAMSUNG ELECTRONICS AUSTRALIA PTY LTD ACN 002 915 648 (Civil Dispute) [2021] ACAT 36
XD 631/2020
Catchwords: CIVIL DISPUTE – claim for damage to television – whether crystals formed on television – whether damage caused by subcontractor – liability of agent – evidentiary burden not met
Cases cited:Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Tribunal: Senior Member K Katavic
Date of Orders: 4 May 2021
Date of Reasons for Decision: 4 May 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 631/2020
BETWEEN:
MICHAEL QUACH
Applicant
AND:
SAMSUNG ELECTRONICS AUSTRALIA PTY LTD ACN 002 915 648
Respondent
TRIBUNAL:Senior Member K Katavic
DATE:4 May 2021
ORDER
The Tribunal orders that:
1.The application is dismissed.
………………………………..
Senior Member K Katavic
REASONS FOR DECISION
Introduction
1.The applicant purchased a Samsung QLED television in June 2018. He seeks relief against the respondent on the basis that it is liable for damage to the television because he claims it developed ‘crystals’ and then a technician arranged by the respondent inspected the television and scratched ‘crystals’ off the screen.
2.The respondent denies the applicant’s claim on the basis that the television was not damaged for two reasons. First, the television could not grow crystals as it was not made of organic material and secondly, it was not scratched or damaged by the technician.
The claim and the evidence
3.On 11 June 2020, the applicant commenced proceedings in the tribunal against the respondent seeking $7,057, interest from 20 April 2020 and the tribunal filing fee.
4.He seeks recovery of the purchase price for the television on two grounds:
(a)the respondent was required to replace the television when he reported it developed crystals on the screen; and
(b)the respondent was required to replace the television when he reported that a technician, contracted by the respondent, inspected the television and scratched the film when he scratched the crystals off the screen.
5.Tech 1, the entity that attended to inspect the applicant’s television was not a party to these proceedings.
6.The applicant relied upon the documents attached to his application, which included an invoice for the television and photographs of it. He also relied upon an email dated 27 October 2020 attaching a photo.[1]
[1] Exhibit 4
7.The parties agreed the Tribunal should have regard to documents produced under subpoena by the respondent,[2] and documents produced under subpoena by Tech 1.[3]
[2] Exhibit 1
[3] Exhibit 2
8.The applicant did not file any witness statements and instead requested the tribunal issue subpoenas to the following people to attend and give evidence at the hearing:
(a)Ms Leah Ahdar, case manager employed by the respondent.
(b)Mr Tyson Vazzoler, electrical technician employed by Tech 1.
(c)Mr Daniel Attard, director of Tech 1.
9.Each of those witnesses attended and gave oral evidence. While the applicant did not himself give any evidence at the hearing or file any witness statement as to the evidence he might give, his submissions and questioning of each of the witnesses comprised of his own asserted facts and other commentary otherwise unsupported by any sworn evidence. He was at times combative and argumentative with the witnesses.
10.The respondent relied upon the documents it produced under subpoena and a witness statement of Mr Tony Risgalla, Head DTV/AV Technician for the respondent dated 25 January 2021.[4] Mr Risgalla also gave evidence at the hearing and was questioned by the applicant.
[4] Exhibit 3
11.The respondent produced a series of case notes related to the applicant’s television and other records related to the inspection of his television. Based on those case notes, I am satisfied as to the following sequence of events:
(a)On 4 September 2018, the applicant contacted the respondent regarding the television and the following was recorded:
WHEN THE TEMPERATURE IS COLD THER [sic] IS A CRYSTAL LIKE FIGURE ON THE SCREEN BUT CX WAS ABLE TO WIPE IT – OFFER FREE SUPPORT[5]
[5] Exhibit 1, ‘Detail Script’ document, page 1
(b)On 7 September 2018, Tech 1 issued a Customer Copy Receipt/Tax Invoice to the respondent in relation to the applicant’s television which contained the following information:
Fault:
HEALTH CHECK
WHEN THE TEMPERATURE IS COLD THER [sic] IS A CRYSTAL LIKE FIGURE ON THE SCREEN BUT CX WAS ABLE TO WIPE IT
Repair:
HEALTH CHECK AND CUSTOMER EDUCATION
Date Complete:
07/09/2018[6]
[6] Exhibit 1
(c)On 8 April 2019, the applicant again contacted the respondent regarding the television and the following was recorded:
Fault description:
-TV turning off by itself or six weeks now
Troubleshooting steps that has been done:
-turn off five times within an hour this day
-DOP: 2018.06.20
Price: $2700
-proceed to SO
-customer says that there is a carpet on the floor so the technician must remove his shoes
CPD:
I will request to the next available appointment for you, our authorised Service Centre will contact you within 24 hours to confirm your booking and discuss your fault in more detail to ensure the technician brings the correct parts with them for your appointment. What’s the best number to reach you on?
Resolution/Outcome:
-proceed to SO ticket
…
Preferred Date Given by Customer:
ASAP[7]
[7] Exhibit 1, ‘Detail Script’ document, page 7
(d)On 26 April 2019, the following entry was recorded:
FAULT DESCRIPTION: UNIT TURNS OFF BY ITSELF
…ACTIONS TAKEN/
RESOLUTION
BOOKED WITH: IHWHAT WAS USED: MANUAL INPUT, SPEAKING WITH SARAH FROM TECH 1 ELECTRONICS[8]
[8] Exhibit 1, ‘Detail Script’ document, page 1
(e)An inspection report from Tech 1 bearing Job ID W114882 records the following:
Fault:
INT TURNING OFF
Repair:
INSPECTED AND AT TIME OF INSPECTION NO FAULT FOUND. UNIT WORKED TO SPEC. NO SERDES ERRORS. CUSTOMER UNHAPPY WITH PRODUCT AND REQUESTING A RESOLUTION. SEE ATTACHED REPORT. AND COMPLIANCE. PLEASE CONTACT CUSTOEMR [sic] TO DISCUSS.[9]
[9] Exhibit 1
(f)A Customer Copy Receipt/Tax Invoice dated 8 April 2019[10] provided to the respondent by Tech 1 records:
[10] Date appears dark on top right corner of document. The job ID stated is W114882 which is the same as the inspection report referred to above. The ‘Date Completed’ is 01/01/1901
Fault:
UNIT TURNING OFF BY ITSELF
UNIT TURNS OFF RANDOMLY HAS TO BE MANUALLY TURNED BACK ONRepair:
Inspected[11]
[11] Exhibit 1
(g)On 3 May 2019, there are three entries recorded in relation to Tech 1’s inspection of the applicant’s television. The first records the following:
OUTBOUND CALL
CALLED CX
CALL RECORDIGN [sic]
3 PT ID
ADV OUTCOME FROM JR AND THERE IS NFF
CX DISAGREES AND ADV
THERE IS SCRATCHED CHRYSTALS [sic] AND PHOTOS WERE TAKEN
I HAVE REITERATED INFORMATION AND OUTCOME
BUT ADVISED THAT I WILL CLARIFY THE JOB REPORT WITH [sic] THE SERVICE CENTRE
CX UNDERSTOOD[12]
[12] Exhibit 1, ‘Detail Script’ document page 2
(h)The next entries for 3 May 2019 are emails from the respondent to Tech 1 providing an update regarding the repair request following the call described above and an email request for any job reports and photos pertaining to an assessment that was done on the unit.[13]
[13] Exhibit 1, ‘Detail Script’ document pages 2-3
(i)On 24 May 2019 there are three further entries.[14] The second entry records the following:
[14] Exhibit 1, ‘Detail Script’ document pages 3-4
INBOUND CALL
CX CALLED
3PT ID
CALLING IN REGARDS TO REVIEWING HIS CASE
AS PER PREV NOTES ADV THERE WAS NFF AND UNABLE TO OFFER REMEDY
ADV THAT REQUEST HAD BEEN SNT TO ASC FOR FURTHER JOB REPORTS
BUT TO DATE NOTHING HAS COME THRU
ADV THAT WILL ASC ANND FOLLOW UP
CX UNDERSTOOD[15]
[15] Exhibit 1, ‘Detail Script’ document entry made at 14:28:55 page 4
The third entry records the following:
**OUTBOUND CALL**
CALLED ASC SPOKE WITH SCOTT WHO CLAIRFIED [sic] THAT THERE IS ONLY THE ONE JOB REPORT AND STATES NO FAULT FOUND[16]
[16] Exhibit 1, ‘Detail Script’ document entry made at 14:31:40 page 4
(j)On 4 June 2019 there are three entries recorded,[17] which record the following:
[17] one of which is a correction made for notes and replicates the first entry
Issue: missed call from VOC [redacted]
IDV: 3 point
-CX wants to speak [redacted] said that CM was suppose to call him after she spoke with ASC
-CX kept shouting and said he needs to speak to CM [redacted]
-Called VOC spoke with [redacted] explained that CX wants to speak to [redacted] who was supposed to call him
-CM asked for CX, connected call to VOC
-EOC[18]
[18] Exhibit 1, ‘Detail Script’ document entry made at 15:44:51 page 5
INBOUND CALL
SPOKE WITH MICHAEL
ADVISED CX BASED ON JR
NFF
CX NOT HAPPY
CALLED ASC
THEY HAVE CONFIRMED UNIT HAS TESTED OK
CX WAS ANGRY
AND DIDNT ACCEPT OUTCOME
ADVISED HE CAN SPEAK WITH ASC
AND SEE WHAT THEY CAN ASSIST WITH
CUSTOMER NOT HAPPY
APOLOGISED TO CX[19]
[19] Exhibit 1, ‘Detail Script’ document entry made at 16:06:39, page 6
12.Tech 1 produced limited documents in response to the subpoena. Amongst them is a Customer Copy Receipt/Tax Invoice bearing ‘Job ID: W114882’ and ‘Date: 08/04/2019’ which states:
Fault:
INT TURNING OFF
Repair:
INSPECTED AND AT TIME OF INSPECTION NO FAULT FOUND, UNIT WORKED TO SPEC, NO SERDES ERRORS, CUSTOMER UNHAPPY WITH PRODUCT AND REQUESTING A RESOLUTION, SEE ATTACHED REPORT, AND COMPLIANCE, PLEASE CONTACT CUSTOMER TO DISCUSS.
NOTE: THERE WAS SOME FORM OF WHITE CRYSTALISED SUBSTANCE ONSCREEN, CLEANED OFF AND OKAY.
Date complete: 26/04/2019[20]
[20] Exhibit 2
13.This document became the subject of much contention between the applicant and those witnesses from Tech 1.
14.Ms Adhar told the Tribunal she was the case manager involved in the recorded case notes referred to above. She did not have an independent recollection of the events and despite the applicant’s persistent questioning she deferred to what was recorded in those notes. Ms Adhar confirmed that the records produced in the case notes recorded comprised the totality of records held by the respondent and that there were no other job reports other than those which were produced by the respondent.
15.In light of Ms Adhar’s inability to independently recall the events and add anything to what was recorded in the case notes, I prefer to rely upon and accept the contemporaneous contents of the case notes. I am also satisfied that the respondent was not provided with any further job reports in relation to the television and did not receive a job report from Tech 1 as identified in paragraph [12].
16.Mr Vazzoler told the Tribunal he attended the applicant’s house with another technician from Tech 1. He had travelled to Canberra from Warilla in NSW. He says he checked the television was turning on and off correctly. He denies attending because of crystals being reported on the screen. He does not recall seeing crystals on the screen and denies scratching the television or scratching crystals off the screen. The applicant disagrees. He suggested to Mr Vazzoler that he had damaged the screen by scratching off crystals. Mr Vazzoler denied doing so. Mr Vazzoler further denied modifying his job report. He told the Tribunal his job report did not include a note regarding crystallised substance on the screen. He said he did not know who was responsible for the inclusion of that statement on the job report produced by Tech 1.
17.Mr Attard gave evidence about a discussion he had with the applicant regarding Mr Vazzoler’s service call. He also gave evidence about the contents of the job report produced by Tech 1. The applicant questioned Mr Attard about that document. Mr Attard told the Tribunal he had entered the note regarding the crystallised substance on the screen because the applicant pushed him to add reference to crystals in the report for the respondent. He said he most likely added it on 26 April 2019. He also said that was the date the callout was completed by Tech 1. He told the Tribunal that populating the document clocks in the date of completion and can only be changed if a technician edits it with a pin. He told the Tribunal the report was submitted to the respondent on 29 April 2019 but couldn’t give a time. There is no record of transmission of that report to the respondent.
18.Mr Attard was asked some questions by the respondent’s representative. He told the Tribunal the applicant had requested the amendment after the inspection of the product. He was asked whether the applicant told him that Mr Vazzoler had damaged the unit or told him there were just crystals present. Mr Attard said the applicant had not reported any damage caused by Tyson. He was then asked about procedure if a customer reports damage. He says it is usual practice to have arranged a further inspection, but no further inspection was carried out in this instance. The applicant asked Mr Attard some further questions about why a second inspection was not arranged. Mr Attard said this was because the report stated no fault found and he had added the references to crystals. He did not regard the crystals as being damage and he had no recollection of a report that the technician had damaged the television.
19.Mr Risgalla told the Tribunal that he had reviewed the respondent’s records regarding the applicant’s television. He said based on his knowledge and experience, the television could not produce crystals. He also gave evidence that the job report for Job ID: W114882 was uploaded into the respondent’s system at 10:30 AM on 29 April 2019. He confirmed that Tech 1 uploaded only one report and had produced a different report under subpoena.
Consideration
20.The applicant submitted that the evidence between the respondent and Tech 1 was inconsistent. In so far as I could understand it, he considered the job report produced by Tech 1 supported his position that crystals were present on the screen and it was scratched and damaged by Mr Vazzoler.
21.The applicant referred the Tribunal to Mason J’s judgment in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (Peko-Wallsend),[21] where he said that decisions must be made on the basis of the most current material available to the decision-maker. He submitted the Tribunal was bound by that decision. The principle in Peko-Wallsend is a principle in public law which applies to decision-making by public administrative officials. The matter before the Tribunal is a private law case and therefore the principle has no direct application. Nonetheless, I am not satisfied the evidence establishes crystals were present on the screen, or if they were that they were scratched off by Mr Vazzoler. I accept Mr Attard’s account of how the further job report came to exist and it establishes no such thing as contended by the applicant in relation to Mr Vazzoler’s inspection and conduct.
[21] (1986) 162 CLR 24 at 45
22.The applicant submitted that the respondent should be ordered to pay the cost of the television first, because crystals grew on the screen and this was subject to warranty, and secondly, because it was damaged by the employee of an entity subcontracted by the respondent to inspect the television. He submitted the respondent was vicariously liable for the actions of those engaged by the respondent. As a general principle in law, that is correct. However, I am not satisfied the evidence rises to the level impressed upon me by the applicant in order for him to succeed in this application.
23.Based on a photograph submitted by the applicant there was something present on the television screen. The Tribunal does not have any evidence before it as to what that substance was. The applicant submits crystals had formed. Mr Risgalla says it is not possible for the unit to produce crystals. Crystals may form if organic matter is introduced and left on the screen. On the balance of probabilities, I am not satisfied that whatever was on the screen justifies a warranty claim. The respondent is not required to honour a warranty claim simply because the applicant demands it should. The claim must be made out. The applicant has not done that.
24.While the applicant insisted Mr Vazzoler damaged the screen and left the television damaged, Mr Vazzoler denied the allegation. Mr Attard’s evidence was that the applicant requested him to amend the job report to refer to crystals in order to claim against the respondent. I accept the evidence of Mr Vazzoler and Mr Attard. I am not satisfied Mr Vazzoler damaged the television. I accept Mr Attard’s evidence regarding the circumstances in which the note was included on the job report referred to at paragraph [12].
25.The applicant has failed to establish any liability on the respondent’s part. The application is dismissed.
………………………………..
Senior Member K Katavic
Dates of hearing: 15 February 2021 Applicant: In person Respondent: Ms K Speechley, authorised representative
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