Quach v Telstra Corporation Limited ACN 051 775 556 (Appeal)

[2021] ACAT 111

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

QUACH v TELSTRA CORPORATION LIMITED ACN 051 775 556 (Appeal) [2021] ACAT 111

AA 29/2020 (XD 1364/2019)

Catchwords:               APPEAL – review of original decision – claim that respondent representative did not have authority to act for the respondent: claim rejected – claim that the Tribunal did not have jurisdiction to determine original application: claim rejected – claim that the respondent has a policy to refund 4G mobile service contract when there is no service coverage: claim rejected – claim that respondent liable to repair damaged mobile phone under warranty: claim rejected – appeal dismissed

Legislation cited:        ACT Civil and Administrative Tribunal 2008 ss 16, 17, 22

Cases cited:B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners-Units Plan 3324 [2013] ACTSC 219

Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275
Harada v Barnes & Anor [2021] ACAT 66
Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207
Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40
Oliver v Registrar, Domestic Animals Act 2000 [2021] ACAT 93
Quach v Telstra Corporation Limited [2020] ACAT 66

Tribunal:Presidential Member G McCarthy

Date of Orders:  17 November 2021

Date of Reasons for Decision:      17 November 2021

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 29/2020

BETWEEN:

MICHAEL VAN THANH QUACH

Appellant

AND:

TELSTRA CORPORATION LIMITED ACN 051 775 556

Respondent

APPEAL TRIBUNAL:       Presidential Member G McCarthy

DATE:17 November 2021

ORDER

The Tribunal orders that:

1. The application for appeal is dismissed.

   ………………………………..

Presidential Member G McCarthy

REASONS FOR DECISION

1. This appeal arose from the appellant’s purchase of a Samsung Note 8 mobile phone and access to Telstra’s 4GX mobile phone network under the respondent’s “Go Plus Mobile Plan” at a cost of $149 per month over 24 months.

2. In the original proceeding, the appellant applied for a refund of the money he paid for access to the network on the basis that he paid for access to the 4G or 4GX network but 4G mobile coverage at his home was poor. He said that the respondent told him to lock his phone to the slower 3G network in order to ensure a consistent reception. He also claimed reimbursement of the cost of repairs to his phone, that was damaged, on the basis that the respondent should have carried out the repairs under warranty.

3. The original tribunal dismissed both aspects of the appellant’s claim and published reasons for its decision.[1] The appellant appealed. On 26 October 2020, the Tribunal ordered that the appeal proceed as a review of the original decision unless the Appeal Tribunal ordered otherwise. As the Appeal Tribunal, I did not order otherwise.

   [1] Quach v Telstra Corporation Limited [2020] ACAT 66

4. The principles governing an appeal by way of ‘review’, or ‘rehearing’ as that term has been construed,[2] are well settled.[3] In short, for the appeal to succeed the appellant must establish a material error of fact or law on the part of the original decision-maker that affected the result. I turn to the appellant’s four grounds of appeal.

No authority to act

[2] Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207 at [13]-[14]; Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [36]-[37]; B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners – Units Plan 3324 [2013] ACTSC 219 at [12]

[3] See generally Harada v Barnes & Anor [2021] ACAT 66 at [8]-[10] and Oliver v Registrar, Domestic Animals Act 2000 [2021] ACAT 93 at [10]-[17]

1. The appellant submitted that Ms Chow, who appeared on behalf of the respondent at the original hearing, did not have authority to act for the respondent – notwithstanding her stating at the commencement of the hearing that she was “representing Telstra”.[4] The appellant said that he added this ground of appeal because, at a directions hearing, the tribunal member said (at that time) that the respondent had not yet filed an authority for someone to act on behalf of the respondent. That was rectified on 16 December 2019, when an authority to act was filed.

   [4] Transcript of proceedings 26 May 2020, page 2, lines 4-7

2. The appellant submitted that because the original tribunal did not have a document from the respondent authorising Ms Chow, personally, to act for it at the hearing, her submissions could not have been accepted by the tribunal. He described the situation as “a failure of due diligence”.[5]

   [5] Transcript of proceedings 21 April 2021, page 15, line 45

3. I reject the submission. The Tribunal’s practice of requiring a corporate entity to file a document (headed “authority to act for a corporation”) authorising a person to represent the corporation is an administrative measure designed to preclude a corporation from later claiming it is not bound by earlier representations said to have been made on its behalf.

4. In this case, there is no suggestion that Ms Chow was not properly representing the respondent. On appeal, Mr Kiely appearing for the respondent, said that the respondent stood by everything that Ms Chow said at the original hearing and by all the evidence she tendered.[6] For these reasons, the first ground of appeal fails.

No authority to decide

[6] Transcript of proceedings 21 April 2021, page 15, lines 35-43

1. The appellant submitted that the Tribunal is an administrative body and is subject to principles governing the application of administrative law in public office. He relied upon the High Court’s decision in Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[7] although I was not taken to any passage in that decision. The appellant submitted that because (then) Senior Member Robinson did not hold a judicial appointment she did not have power “to make common law under chapter III of the Australian Constitution”.[8] He submitted therefore that the decision of the original tribunal “cannot stand as common law”.[9]

   [7] Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40

   [8] Transcript of proceedings 21 April 2021, page 3, lines 35-38

   [9] Transcript of proceedings 21 April 2021, page 3, line 36

2. I reject the submission. The Tribunal is a subordinate body. I accept, therefore, that it cannot “make common law”. It can only make orders that it is empowered under statute to make. However, I am satisfied that the original tribunal, and Senior Member Robinson sitting as the Tribunal, had that power.

3. Section 17 of the ACT Civil and Administrative Tribunal 2008 (the ACAT Act) entitles a person (in this case the appellant) to “make a civil dispute application to the tribunal”. A ‘civil dispute application’ is defined in section 16 of the ACAT Act to mean “an application that consists of 1 or more of the following applications” as then listed in section 16(1). The list includes, under section 16(1)(i), “an application for an order under the Australian Consumer Law (ACT).” Section 22 of the ACAT Act provides that the Tribunal “has, in relation to civil dispute applications, the same jurisdiction and powers as the Magistrates Court”. In this case, the appellant applied for orders under the Australian Consumer Law (the ACL). By reason of the above-mentioned sections of the ACAT Act, Senior Member Robinson (sitting as the Tribunal) had power to hear and determine the appellant’s claim. For these reasons, the second ground of appeal fails.

Network coverage

1. On appeal, the appellant submitted that the respondent had a policy that if a customer purchased a service and the service was not available in the area where the customer wished to use the service, the lack of service was a valid reason” for why the respondent would refund the customer for the cost of the service.

2. In the appeal proceeding, to obtain evidence in support of his claim, the appellant caused the tribunal to issue a subpoena on the respondent requiring it to produce:

   (a)the recordings and/or transcripts of two telephone communications he had with the respondent, as identified by two Telstra interaction numbers;[10] and

   (b)“any part(s) of contract with Telstra in question, Telstra’s practice or policy that indicates that when a service is not working properly/unavailable, this is a valid reason for a refund.”

   [10] INT1-2656494726049 and INT1-2660063965728

3. In answer to the subpoena, the respondent produced recordings of the appellant’s conversations with a Telstra consultant on 17 and 21 September 2020, several Telstra documents to which I shall later refer and a copy of a document entitled “Welcome to your new plan, Michael!” which gives details about the Go Mobile Plus Plan to which the appellant “signed up” in September 2017.

4. The respondent did not produce a policy document that indicates that when a service is not working properly/unavailable, “this is a valid reason for a refund”. The appellant contended that when he spoke with the Telstra consultant on 17 September 2020 the consultant “informed me that Telstra has a policy that if the service is not available in the area, it’s a valid reason for a full refund”.[11] On this basis, said the appellant, the respondent had such a policy and had failed to produce it as required under the subpoena.

   [11] Transcript of proceedings 21 April 2021, page 4, lines 20-22

5. I reject the submission. The appellant’s conversation on 17 September 2020 with the Telstra consultant was about his request to disconnect an entirely different product: a 5G wi-fi dongle. The appellant relied on the consultant’s words, “basically, you are in a contract that we will cancel because of the valid reason ‘service is not working in your area’ ”. However, the words are placed in context by the consultant’s earlier words “all done with your request right now, I have submitted a request to disconnect the service with the contract.” The words stated by the Telstra consultant are in the context of a contract. The consultant does not state or suggest that Telstra has a policy of the kind suggested by the respondent. Indeed, as best I can ascertain, the word ‘policy’ is not mentioned.

6. Where there is no evidence that the respondent has a policy of the kind described by the appellant, I have no reason to doubt that the respondent fully complied with the subpoena. I am satisfied that the respondent did not produce such a policy document because there was no such document to produce.

7. The appellant contended that even if there is not a document evidencing a policy that the respondent will provide a full refund if a service is not available in an area, the recording is sufficient to show that there is such a policy. The appellant contended that the respondent should pay him a full refund because of that policy.

8. I reject the submission. I begin with jurisdiction - or lack of it.

9. In an appeal by way of review of the original tribunal’s decision, the appellant must show error. The principles are well settled. In B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners-Units Plan 3324, the Supreme Court, per Burns J, said:

   In Lukatela v Birch [2008] ACTSC 99, Rares J said (at [18]) with respect to such an appeal:

   [I]n Allesch v Maunz (2000) 203 CLR 172 at 180-181 [23] per Gaudron, McHugh, Gummow and Hayne JJ, and 187 [44] per Kirby, the High Court reiterated the critical difference between an appeal by way of rehearing and a hearing de novo. Generally (in the absence of a wider statutory power) in an appeal by way of rehearing, the appellate court can only exercise its powers where, having regard to all the evidence before it, the appellant demonstrates that the order appealed from is the result of some legal, factual or discretionary error.[12] [emphasis added]

   [12] B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners-Units Plan 3324 [2013] ACTSC 219 at [17]

10. In his original civil dispute application, the appellant sought a refund of the contract price ($3,576) on the basis that the contract was “unfair” pursuant to the ACL. The original tribunal, accordingly, decided the application by reference to the provisions of the ACL.

11. There is no suggestion in the appellant’s civil dispute application of any entitlement to a refund by reference to a ‘policy’ that the respondent would provide a refund if there is no service coverage. Understandably, there is therefore no consideration of such a claim in the original tribunal’s reasons for decision. The appellant’s claim that “the decision is factually incorrect”[13] by not considering Telstra’s policy to provide a refund if there is no service coverage is, therefore, misconceived: the decision cannot be “incorrect” if the issue was never raised or considered.

    [13] Appellant’s amended application for appeal

12. Put another way, the appellant’s claim on appeal is not an allegation of error on the part of the original tribunal. It is an entirely new claim, drawn from a recording of a telephone conversation on 17 September 2020 that occurred after the original tribunal had given its decision. As stated above, in an appeal by way of a review, or rehearing, it is not the function of the Appeal Tribunal to consider a new claim.

13. Even if I were to have treated the appeal as a new application in order to consider the appellant’s submission that the respondent had a policy of the kind described, I would still not have been satisfied on the evidence that the appellant is entitled to a refund. Three factors, at least, were determinative of the issue.

14. First, the appellant’s conversation with the Telstra consultant on 17 September 2020 was in relation to a 5G wi-fi dongle.[14] The appellant contended that this detail is unimportant because “the same principle applies”.[15] I disagree. As discussed above, the words in the recording on which the appellant relied refer to “a contract”, meaning the contract to buy the 5G wi-fi dongle. The appellant did not produce any evidence regarding his contract to buy that product, meaning there is no evidence as to whether the statement made by the Telstra consultant was a representation about the contract to buy the 5G wi-fi dongle, as it would seem from the recording, or a representation about a policy, as the appellant contended. Either way, I am not persuaded that the consultant’s representation, however it should be construed, was a representation about the respondent’s 4G network coverage.

    [14] Transcript of proceedings 21 April 2021, page 21, lines 4-5; page 22, lines 22-39

    [15] Transcript of proceedings 21 April 2021, page 22, line 19

15. Second, as the respondent pointed out, the representation from the Telstra consultant occurred on 17 September 2020. It was a statement about cancellation of a contract as at that date. Such evidence does not establish anything about a policy in September 2017 when the appellant entered into the contract to access the 4G network or, if the alleged policy came into operation at a later time, that it applied to contracts executed at an earlier time.

16. Third, even if the consultant’s representation were to be given some kind of application to mobile coverage contracts generally, and therefore to the appellant’s contract for 4G mobile coverage as the appellant submits, it would still need to be applied in the context of the appellant’s contract. In this respect, the document “Welcome to your new plan, Michael!” sets out the primary details of the contract. Under the heading “Things you need to know”, the document refers to the attached “Critical Information Summary” which provides an overview of the plan. The Critical Information Summary for a Go Mobile Plus Plan states the following details about coverage:

    Mobile coverage

    You can access 4GX coverage if you have a 4GX compatible device and are in a 4GX coverage area. If you’re outside 4GX areas or if you have a 4G or 3G device, you’ll receive access to our 4G or 3G coverage. Mobile coverage depends on a number of factors such as your device, location, surrounding landscape as well as the physical building you may be using your device from. To find out more about our mobile coverage and networks or how to optimise network performance visit telstra.com/coverage.

17. In summary, by reference to this clause, the respondent makes clear that 4GX or 4G coverage is not guaranteed. Whether it can be obtained effectively, poorly or not at all will depend upon many factors such as those stated in the clause. It is for the purchaser of the product, and the appellant in this case, to determine whether the product is suitable for their circumstances. I am not persuaded that an alleged policy to provide a full refund where there is no 4G coverage, about which I have no evidence, could override the written terms of the contract.

18. For these reasons, the third ground of appeal fails.

Manufacturer warranty

1. The appellant purchased his phone on 12 September 2017. He states that in April 2018 he noticed a dead pixel[16] on the left side of the screen.

   [16] See witness statement of Dr Quach dated 6 March 2020 at [14]

2. The original tribunal records in its reasons for decision that a two year manufacturer’s warranty applied with effect from date of purchase, meaning that that the phone was ‘under warranty’ when the appellant noticed the dead pixel.

3. On 6 April 2018, the appellant asked the respondent to repair the dead pixel. The original tribunal states in its reasons:

   On 20 April 2018 Telstra quoted $429 to repair the phone. This quote was based on the whole screen having to be replaced. In effect, the outer glass and the pixel screen were one piece, and Telstra’s position was that it was not able to replace one without the other, and it was in any case not required to honour the manufacturer’s warranty where there was damage to the phone.[17]

   [17] Quach v Telstra Corporation Limited [2020] ACAT 66 at [20]

4. On review, the respondent confirmed the quote. The appellant then went to an agent of the manufacturer in Sydney, which repaired the pixel screen and replaced the ‘top’ screen. The appellant said that the agent replaced the pixel screen under warranty and charged $260 to replace the top screen.

5. In the original proceeding, the appellant sought to recover $260 from the respondent on the basis that it was obliged to conduct the repairs under the warranty. The original tribunal rejected that claim on the basis that “the express terms of the warranty exclude liability where the phone is already damaged”.[18]

   [18] Quach v Telstra Corporation Limited [2020] ACAT 66 at [24]

6. On appeal, the appellant contended that the original tribunal’s decision is “incorrect” because the respondent had an obligation to repair or replace the pixel screen, under warranty, without charge. In support, the appellant said that the agent in Sydney said to him “because we actually have to change the pixel screen as well as the cover on top, they’re going to charge me [for] the cover on top, for the $260 and not charge me for the pixel screen. It would otherwise be something like $450 or so.”[19] The appellant submitted that the respondent “should have done exactly what Samsung did for me, which they failed to do.”[20]

   [19] Transcript of proceedings 21 April 2021, page 12, lines 44-47

   [20] Transcript of proceedings 21 April 2021, page 13, lines 9-10

7. I reject the submission. The respondent’s obligations regarding repair of the phone under warranty are to be determined according to the terms of the warranty. As the original tribunal pointed out, the warranty did not apply if the phone was damaged. There are many references in the contract documents to this exclusion. The original tribunal quoted from the “Telstra device Care Assessment Form: Resolution Request”.[21] I refer to the respondent’s document “Faulty Products Know Your Rights”, which states that “the manufacturer’s warranty, our policies and Consumer Guarantees don’t apply if you have damaged your device.”

   [21] Quach v Telstra Corporation Limited [2020] ACAT 66 at [17]

1. The exclusion is unfettered. Whether there was any causal connection between the damage to the top screen and the pixel screen is irrelevant. So too are the repairs carried out by someone else in Sydney or how much they charged. If the phone was damaged, which it was, the respondent’s warranty did not apply. For this reason, the original tribunal dismissed the appellant’s claim. I can see no error in that conclusion, and I agree with it. For these reasons, the fifth ground of appeal fails.

   ………………………………..

Presidential Member G McCarthy

Date(s) of hearing	21 April 2021
Applicant:	In person
Solicitor for the Respondent:	Mr B Kiely, Authorised Representative