Renfors v eBay International AG - [2019] SADC 105

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
RENFORS v EBAY INTERNATIONAL AG
[2019] SADC 105
Judgment of His Honour Judge O'Sullivan
16 August 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
The applicant sold a pocket knife on eBay to a purchaser in Brazil. The purchaser complained to eBay he did not receive the pocket knife. The applicant did not use a postage method that allowed him to track the parcel to Brazil. The matter was heard as a Minor Civil Action. A Magistrate dismissed the applicant’s claim. The applicant applied for a review of the Magistrate’s decision.
Held:
1. The judgment of the Magistrate is affirmed.
2. The application for review is dismissed.
Magistrates Court Act 1991 s 38; District Court Civil Rules 2006 r 279A; Australian Securities and Investments Commission Act 2001 (Cth) Division 2; Corporations Act 2001 (Cth) Chapter 7, s 766A; Competition and Consumer Act 2010 (Cth) Schedule 2, referred to.
Harradine v District Court of South Australia [2012] SASC 96, considered.

RENFORS v EBAY INTERNATIONAL AG
[2019] SADC 105
Introduction

This is an application bought by Mr Seppo Renfors (“the applicant”) pursuant to s 38 of the Magistrates Court Act 1991 seeking that this court review a judgment entered by a Magistrate against him in minor civil action number

ELCCI-18-1375 in the Adelaide Magistrates Court.
The applicant was plaintiff in those proceedings, which involved a claim arising out of the sale of a folded pocketknife by him on eBay to a purchaser in Brazil.
eBay was the Defendant (“eBay”).
On 21 January 2019, a Magistrate entered judgment in which the applicant’s claim was dismissed.
Background
The background to the applicant’s claim in the Magistrates Court was set out in a folder of documents tendered by the applicant and marked Exhibit P1 in the Magistrates Court. The applicant tendered that folder which was received in this court as Exhibit A4. Much of the material was not in dispute, rather it was the interpretation of that material and matters arising from it that was the subject of submissions before the Magistrate.
It is not in dispute that the applicant is a long-term user of eBay’s online selling service, having been trading on eBay since 2007 under the name “Brookunga”. As part of using eBay, the applicant has a PayPal account which is linked to his eBay account. The applicant advertised for sale on eBay a World War II military/navy folding pocketknife. On 28 November 2017, a William Alvaro Bergwerk of Brazil (“Purchaser”) placed a bid for the knife. The bid was accepted and the purchaser paid for the pocketknife on 28 November 2017.
The applicant contends the knife was posted to the purchaser on 28 November 2017. The applicant did not send the knife by a process which enabled him to track the progress of the parcel.
On 11 January 2018, the purchaser lodged a claim with eBay, written in Portuguese, for a “buyer protection claim” stating “it is taking too long. I did not receive”. The applicant says that at no stage was he contacted about the alleged missing pocketknife by the Purchaser.
On 17 January 2018, the applicant received a message from eBay by email in which the applicant was advised that the Purchaser had opened a request under the “moneyback guarantee” that eBay operates.[1] The applicant was informed that the purchaser had alleged the item had not arrived. It also advised that the PayPal funds from the transaction would not be available for withdrawal until the request was resolved. However, the applicant could still use the funds to send a refund to the buyer.
[1] Exhibit A4, item 1.
It seems eBay placed a hold on the applicant’s PayPal account.
eBay also said in that email that the applicant was required to respond by

22 January 2018. The email continued:
You can resolve your buyer’s request by providing tracking information or any additional postage details. If you do not have tracking that shows delivery, please consider refunding your buyer.
Your final value fee will be credited if you send a full refund.
This transaction is covered by eBay Money Back Guarantee, so your buyer can ask us to step in beginning 22 Jan 2018 to review the case and make a decision. …
A link to the eBay Money Back Guarantee was provided.
The email also contained a link to enable the applicant to see the request as well as a photograph of the knife in question, details of the Purchaser’s eBay address, the amount paid, the eBay case number, and the date the case was opened.
On 2 February 2018, eBay debited the applicant’s PayPal account in the amount of the purchase price in accordance with its Money Back Guarantee policy.
The conduct of the trial in the Magistrates Court
At the trial of this matter in the Magistrates Court, the applicant represented himself and eBay was represented by Ms Pace of eBay.
Exhibits
Each party tendered documents relevant to the claim. As I have noted, the applicant tendered Exhibit P1 (Exhibit A4 in this Court) which were all the applicant’s documents. The applicant also tendered his Authority List and document lists, Exhibits P2 and P3 respectively. eBay tendered Exhibit D1 – its book of documents.
Both the applicant and Ms Pace were sworn and then engaged in a discussion with the Magistrate, which amounted to submissions by each side, about the applicant’s claims. There was no real factual dispute between the parties, rather the argument revolved around submissions as to the effect of documents.
The Magistrate dismissed the claim and in so doing delivered ex tempore reasons. The Magistrate observed that much of the matters about which the applicant complained were dealt with in argument.
There is no dispute that when the applicant and the Purchaser agreed the transaction, the applicant provided his own terms and conditions as between him and the Purchaser. Those terms and conditions included provisions such as no insurance being included in the selling price and that if the Purchaser wanted to insure the goods, he must arrange his own insurance. The applicant also claimed that Australian law applied to the sale between him and the Purchaser.[2]
[2] Ex tempore Judgment of Magistrate Milazzo, 21 January 2019 [3].
As to the applicant’s terms and conditions, the applicant claimed that certain eBay terms and conditions are inconsistent with the terms and conditions of his contract with the Purchaser and that by permitting the Purchaser access to eBay’s terms and conditions, eBay effectively allows the Purchaser to circumvent the applicant’s own contractual terms. The applicant claimed that conditions of eBay’s Money Back Guarantee were unfair or unconscionable.[3]
[3] Ibid [4].
The Magistrate dismissed the applicant’s claim.
The Application for Review
In his application to review the Magistrate’s decision, the applicant seeks seven orders, in his terms described as:
1.   eBay Money Back Guarantee (eMBG) in s 10 of eBay’s User Agreement be ruled unfair terms and s 11 of eBay’s User Agreement be ruled unfair/illegal.
2.   Terms/Policies without at least links to them in the User Agreement be ruled inapplicable (Defence Additional Documents Tab 12, s 3 to s 14 inclusive excluding No 6. These cannot be known to even exist.)[4]
3.   Order terms/policies however defined not accessible via the User Agreement to not be part of the User Agreement and unenforceable. Changes to the User Agreement, including linked parts thereof be notified according to the User Agreement s 25: “We may amend this Agreement at any time by posting the amended terms on eBay.com.au. We will also notify you of any ~~material~~ (delete material) amendments through eBay Messages – opens in new window or tab (in My eBay) or directly to the email address linked to your account.” The “on eBay.com.au” is to refer to the “All General Announcements” page.
4.   Order eBay stop incorrectly charging additional GST on a fee that is inclusive of GST and to refund the incorrectly charged amounts.
5.   eBay repay Mr Renfors the $94.50 with interest it refunded the buyer.
6.   eBay be ordered to not take any monies, other than the monthly final value fees generated by the sale of goods, other than by Court Order or express written permission for a particular case from any account of Seppo Renfors, including PayPal.
7.   Costs for the Magistrate and attendance at Magistrates Court, Costs for the appeal and attendance. I’m more than 50 km from the Court.
[4]    The “Defence Additional Documents” are Exhibit D1 from the Magistrates Court.
During the course of the review, the applicant tendered a supplementary list of documents filed by the respondent,[5] a screen shot of the respondent’s GST Rules,[6] and a screenshot of the respondent’s webpage for the sale of an unrelated item showing an estimated delivery date which the applicant submitted was unrealistic.[7]
[5]    Exhibit A1.
[6]    Exhibit A2.
[7]    Exhibit A3.
The nature of a minor civil action
Section 38 of the Magistrates Court Act 1991, details the provisions which are applicable to the trial, and any review of a minor civil action.
(1)The following provisions are applicable to the trial of a minor civil action:
(a)     the trial will take the form of an inquiry by the Court into the matters in         dispute between the parties rather than an adversarial contest between the      parties;
(b)     the Court will itself elicit by inquiry from the parties and the witnesses, and by examination of evidentiary material produced to the Court, the issues in dispute and the facts necessary to decide those issues;
(c)     the Court may itself call and examine witnesses;
(d)     the parties are not bound by written pleadings;
(e)     the Court is not bound by the rules of evidence;
(f)    the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(2)At or before the trial of a minor civil action, the Court should explore any possible avenues of achieving a negotiated settlement of the matters in dispute.
(3)     After giving judgment in a minor civil action, the Court—
(a)     should advise the unsuccessful party of his or her right to apply for review of the proceedings by the District Court; and
(b)     should give the successful party any advice or assistance as to the enforcement of the judgment that the Court considers appropriate in the circumstances; and
(c)     if there is a judgment debtor who is present, should proceed immediately to investigate his or her means of satisfying the judgment and to take any further action that appears appropriate in view of the results of that investigation.
(4)     The following provisions govern representation in minor civil actions:
(a)     representation of a party by a legal practitioner will not be permitted unless—
(i)     another party to the action is a legal practitioner; or
(ii)    all parties to the action agree; or
(iii)the Court is of the opinion that the party would be unfairly disadvantaged if not represented by a legal practitioner;
(ab)   however, the Court may, in its discretion, permit representation of a party by a legal practitioner at the hearing of an interlocutory application;
(b)     if a party to the action is a body corporate, the Court must, if the party seeks to be represented by an officer or employee who is not a legal practitioner, permit such representation;
(c)     if a person is subrogated to the rights of a party, the Court will permit that person to appear in the proceedings on behalf of that party and to be represented in the same way as if that person were a party;
(d)     the Court will permit a party, or a person subrogated to the rights of a party, to be assisted by a person who is not a legal practitioner but only if that person is not acting for fee or reward.
(5)In a minor civil action costs for getting up the case for trial, or by way of counsel fees, will not be awarded unless all parties were represented by counsel, or the Court is of opinion that there are special circumstances justifying the award of such costs.
(6)The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter.
(7)     The following provisions apply to such a review by the District Court:
(a)     subject to paragraph (ab), the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(ab) if, in the case of a review that relates to a minor civil action in respect of a transferred proceeding within the meaning of Part 3A of the South Australian Civil and Administrative Tribunal Act 2013, a party was represented by a legal practitioner at the proceeding, then the party may be represented by a legal practitioner at the review by the Court;
(b)     the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)     the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d)     in determining the matter, the Court may—
(i)     affirm the judgment; or
(ii)rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A)     substitute a judgment that the Court considers appropriate; or
(B)remit the matter to the Magistrates Court for hearing or further     hearing;
(e)     in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(8)     A decision of the District Court on a review is final and not subject to appeal.
(9)However, the District Court may reserve a question of law arising in a review for determination by the Full Court of the Supreme Court which may determine the question and make any consequential orders or directions appropriate to the circumstances of the case.
In Harradine v District Court of South Australia,[8] Blue J, detailed the legislative history of the minor civil action, and explained that the role of the court is that of an inquiry by the Magistrate rather than that of managing an adversarial contest between the parties. The clear policy of the Act is to provide an efficient and economical means by which small claims can be determined in the Magistrates Court. His Honour noted that Parliament had devised this system in consequence of the increasing costs of litigation. Accordingly, some of the protections provided by legal practice in the general jurisdiction may be “sacrificed to the necessity of relating the cost to the amount” of the claim in a minor civil action.
[8] [2012] SASC 96 [40]-[49].
The hearing of the review
At the hearing of the review, Mr Renfors appeared for himself and eBay was represented by Ms Andrews. As to each of the orders sought, the Court invited the applicant to address each of the orders he sought, to make submissions and refer to any evidence that he relied upon. In his submissions, the applicant relied on his Application for Review and other documents. Ms Andrews made submissions on behalf of eBay, relying on eBay’s written case filed 17 June 2019.[9]
[9] FDN 18.
I deal with each of the orders sought in the order that the applicant dealt with them during the review.
Order 2 – Terms/Policies without at least links to them in the User Agreement be ruled inapplicable
The applicant submits that there were terms and policies referred to in the User Agreement but which did not have links to them.
The User Agreement in question is contained in Exhibit D1 before the Magistrate behind tab 14. Clause 2 of the eBay User Agreement provides that:
Before using the eBay services, you must read and accept all of the terms in, and linked to, this User Agreement (“Agreement”) and the eBay User Privacy Notice…By accepting this User Agreement, you agree that this User Agreement and User Privacy Notice will apply whenever you use the eBay services, or when you use the tools we make available to interact with the eBay services. If you use an eBay site other than eBay.com.au, you acknowledge that you will need to accept and be bound by the terms of that site. Some eBay services may have additional or other terms that we provide to you when you use those services.
Under the eBay Money Back Guarantee, if we resolve a case in the buyer’s favour, the seller will be required to provide a full refund to the buyer, either:
- By automatic reversal of the transaction from the seller’s PayPal account, or
- As otherwise invoiced by eBay to the seller,
in accordance with the seller’s authorisation provided to us under this User Agreement.
Clause 22 of the User Agreement headed “Additional terms” provides links to various other documents including the eBay rules and policies overview and the eBay Money Back Guarantee.
The applicant’s complaint seems to be that there may be terms or policies without links to them in particular the policies titled:[10]
[10] Magistrates Court Exhibit D1, tab 12, dividers 3-14 excluding divider 6.
·Seller performance and defect removal policy;
·Seller performance policy;
·Seller protection policy;
·Seller levels and performance standards;
·Improve performance with clear terms and conditions;
·eBay Plus;
·Selling with eBay plus;
·eBay cross border trade agreement;
·Buying and printing postage labels;
·Tax policy; and
·Taxes and import charges.
It is difficult to see what the gravamen of the applicant’s complaint is on this issue. It seems to be that there are documents which eBay has available which are not electronically linked to the User Agreement.
All of the documents listed above are eBay policies. Clause 3 of the User Agreement specifically refers to eBay’s policies and there are references throughout the document to eBay’s policies, see for example cl 9.[11] There is no suggestion that eBay’s policies are not available on its site.
[11] Magistrates Court Exhibit D1, tab 14.
There is no merit in this point and I dismiss the application for this order.
Order 3 – Order terms/policies however defined not accessible via the User Agreement to not be part of the User Agreement and unenforceable.
The applicant asks the Court to mandate a change to the User Agreement effective as at 28 November 2018[12] cl 25 so that it reads:
We may amend this Agreement at any time by posting the amended terms on eBay.com.au. We will also notify you of any ~~material~~ (delete material) amendments through eBay Messages – opens in new window or tab (in My eBay) or directly to the email address linked to your account. The “on eBay.com.au” is to refer to the “All General Announcements” page.
[12] Magistrates Court Exhibit D1, tab 12, divider 1.
The proposed change is the deleted word and the description “delete material” in brackets.
The User Agreement current at the time of the transaction had the equivalent provision. There is no difference in the wording of any significance.
This Court cannot mandate a change to the terms of eBay’s User Agreement. Accordingly, there is no merit in this point and I dismiss the application for this order.
Order 4 – Order eBay stop incorrectly charging additional GST on a fee that is inclusive of GST and to refund the incorrectly charged amounts.
The point behind this submission is that the applicant alleges eBay was “double dipping” on GST. It seems that the applicant’s complaint is that GST has to be included in any price quoted as a single figure unless it is qualified as “plus GST”. The applicant referred to a periodic promotion by eBay and tendered Exhibit A2 titled “GST rules” in which he identified a promotion which promised a fee of only $1 before giving a final plus GST fee of $1.10.

The complaint therefore is that the $1 should have included the GST but did not. The applicant also referred to Magistrates Court Exhibit P1, received in this Court as Exhibit A4, document 38. Although different, the same promotion is referred to on that page.
I do not consider that there is any substance in this point. Exhibit A2 clearly demonstrates that the fee is a $1 promotion. There is nothing that specifically says that the $1 is inclusive or exclusive of GST, but the example on the page clearly demonstrates that it is exclusive of GST. Exhibit A4, document 38, specifically provides that the promotion is subject to terms and conditions. eBay’s tax policy are set out in Magistrates Court Exhibit D1, tab 12, document 13. Page 2 of 5 of that document reads as follows:
Goods and Services Tax on eBay fees
Goods and Services Tax is payable on your eBay fees if you reside or have your primary place of business in Australia or New Zealand. Regardless of the eBay website you use for listing or selling your items, if your registration details show that you are based in Australia or New Zealand, eBay will include Australian or New Zealand GST in your seller fees.
…
There is no merit in the applicant’s complaint and I dismiss the application for this order.
Order 5 – eBay repay Mr Renfors the $94.50 with interest it refunded the buyer.
The argument the applicant makes on this point is set out in paragraph 3 of the Grounds of Appeal in the Application for Review. The applicant complains that the Purchaser was refunded $94.50 on or about 2 February 2018 in circumstances where the applicant says the postage time allowance allowed for by eBay before a buyer can make a claim for non-delivery of an item, is unrealistic. He submitted that the postage period for this time of the year, close to Christmas, can be very long and that as a result there was insufficient time allowed for delivery before the claim was made by the Purchaser and assessed by eBay.
As I have noted above, eBay requested the applicant provide postage details. The applicant elected to use a postage system that did not use tracking. Had the applicant used a postage system with tracking, he could have provided those details to eBay and then there could be no doubt that the item had been delivered.
Similarly, the applicant complains that in the event that an item is returned to a seller, eBay does not track it. The seller is required to contact Australia Post to track the item being returned.
There is no merit in either of these points. Put simply, had the applicant tracked the item he would have been able to establish whether or not the item had, in fact, been delivered to the Purchaser in Brazil. I dismiss the application for this Order.
Order 6 – eBay be ordered not to take any monies, other than the monthly final value fees generated by the sale of goods, other than by Court Order or express written permission for a particular case from any account of (the applicant), including PayPal.
The applicant referred to Exhibit A4,[13] document 8. That document is simply an invitation by eBay to (in this case) the applicant to choose an automatic payment method and an opportunity to set up automatic payments.
[13] Magistrates Court Exhibit P1.
The applicant complains that the refund money was taken out of his PayPal account without authority. Exhibit A4 document 9 is a screen shot of a transaction detail which demonstrates that an amount of $94.50 had been debited from the applicant’s PayPal account.
Clause 10 of the User Agreement between the applicant and eBay and which applied to this transaction sets out the eBay Money Back Guarantee.[14] It provides that the eBay Money Back Guarantee Policy is part of the User Agreement and is incorporated by reference. It continues:
Buyers and sellers agree to comply with the policy and acknowledge that we may exercise our reasonable discretion to make a final decision on any case where a buyer and seller cannot come to agreement.
…
[14] Magistrates Court Exhibit D1, tab 12, divider 1.
Further on in the Clause, it states:
Sellers must have a payment method on file with eBay. … If we resolve a case in the buyer’s favour, eBay may notify PayPal of the relevant case and seek to remove funds from the seller’s PayPal account to reimburse the buyer for the full cost of the item, and postage. …
For this purpose, you, in the capacity of a seller:
·       authorise and instruct us and PayPal to collect or reverse variable amounts (representing payments related to covered claims) from your PayPal account to carry out a buyer reimbursement;
·       authorise and instruct us to request PayPal to collect or reverse variable amounts in other currency holdings (representing payments related to eligible claims) from your PayPal account to carry out a buyer reimbursement where you do not have sufficient funds available in the transaction currency;
·       authorise and instruct us to request PayPal to restrict your access to funds (the restriction will apply up to a sum equivalent to the cost of the item and original postage costs paid by the buyer) in your PayPal account at any point during the resolution process.
…
Under the terms of the User Agreement between the applicant and eBay current at the time of the transaction, the applicant agreed eBay had the authority to request PayPal to make the reimbursement. There is no merit in this point and I dismiss the application for this Order.
Order 7 – Costs.
I reserve the question of costs.
Order 1 – eBay Money Back Guarantee (eMBG) in s 10 of eBay’s User Agreement be ruled unfair terms and s 11 of eBay’s User Agreement be ruled unfair/illegal.
This order is linked to that in Ground of Appeal 4 of the Application for Review.
The applicant’s submission centre around the fact that different conditions apply to sellers as opposed to buyers. I see no significance or merit in that point. When agreeing to use eBay, the applicant agreed to its terms and conditions. The applicant is not required to use eBay but does so as a matter of choice.
As a further point, the applicant refers to a number of sections of the Australian Consumer Law and says the eBay User Agreement is contrary to those sections. Those sections of the Australian Consumer Law are ss 54-59, 64A(1)(a), (b), (c) and (d); 102(3); 261(b) and (c); 262(1)(b) and (c); and 263(4)(b).[15]
[15] Competition and Consumer Act 2010 (Cth), Schedule 2.
Section 54 deals with guarantees as to acceptable quality, s 55 – guarantees as to fitness for any disclosed purpose, s 56 – guarantees relating to the supply of goods by description, s 57 – guarantees relating to the supply of goods by sample or demonstration model, s 58 – guarantees as to repairs and spare parts, and s 59 – guarantees as to express warranties. The sections are of no application.
Section 64A refers to a limitation of liability for failure to comply with guarantees. This section is directed at a term of a contract for the supply by a person of goods other than goods of a kind ordinarily required for personal, domestic or household use.
The fundamental point is that the contract between the applicant and eBay is for the use of eBay’s services as a selling platform. It does not comprise a contract between buyer and seller but rather between the applicant and eBay. In my view, s 64A does not apply.
Section 102(3) sets out prescribed requirements for warranties against defects. This section has no application.
Sections 261(b) and (c) deal with how suppliers may remedy a failure to comply with a guarantee. Again, this section has no application.
Sections 262(1)(b) and (c) deal with a rejection period within which a buyer is entitled to reject goods. It has no application since there was no rejection.
Section 263(4)(b) deals with the consequences of rejecting goods. Again, this is not a case of rejecting goods. Accordingly, the section is of no application.
The applicant’s point seems to be that these sections are inconsistent with the User Agreement with eBay are such that the eBay provisions are void. With respect to the applicant, he is confusing the contract of sale he has with the Purchaser as opposed to the contract with eBay for the use of the eBay platform to offer goods for sale. The contracts are fundamentally different and the provisions to which the applicant refers have no application to the terms and conditions under which he uses the eBay platform. Of course he always has rights against the Purchaser independently of the eBay platform but that is not a matter for eBay, it is a matter between him and the Purchaser.
A further point raised by the applicant is that by directing PayPal to refund money to the buyer, eBay is providing a financial service. That is not correct when the provisions of Division 2 of the Australian Securities and Investments Commission Act 2001 (Cth) and the definition of financial services contained therein, and Chapter 7 of the Corporations Act 2001 (Cth) and the definition of financial service set out in s 766A are considered. I dismiss the application for this Order.
Conclusion
The applicant has not demonstrated any basis upon which to interfere with the Magistrate’s decision.
Accordingly, pursuant to s 38(7)(d) of the Magistrates Court Act 1991, I affirm the judgment and orders of the learned Magistrate.
Formal Orders
The formal orders of the Court are:
1The judgment of the learned Magistrate is affirmed.
2The application for review is dismissed.