Rynne v TPG Internet Pty Ltd
[2014] QCATA 60
•1 April 2014
| CITATION: | Rynne v TPG Internet Pty Ltd [2014] QCATA 060 |
| PARTIES: | Kerry Patrick Rynne (Appellant) |
| v | |
| TPG Internet Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL012 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 1 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where applicant lost access to emails – where applicant claimed air fare to Europe to compensate for lost emails – where tribunal refused claim for air fare - whether air fare a reasonable consequence of lost emails - whether grounds for leave to appeal Pickering v McArthur [2005] QCA 294 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr Rynne has been a TPG customer for some time. In 2012, he decided to upgrade his internet plan with TPG. To do that, Mr Rynne had to open a new email account. Due to some confusion, Mr Rynne lost access to some emails that were sent to his old account.
Mr Rynne claimed compensation for the loss of his emails. A major portion of his claim was $1,520 for an air fare to Germany. Mr Rynne told the tribunal that he was researching the history of a German family for a documentary that his friend was producing. He told the tribunal that he lost important emails from German museums and that he had to go to Germany to replace that information. Two Justices of the Peace, sitting in the tribunal’s minor civil disputes jurisdiction, dismissed that part of Mr Rynne’s claim.
Mr Rynne wants to appeal that decision. He says the learned Justices did not understand the nature of the email service he lost and, therefore, fell into error by deciding that he could have accessed emails from the local library. He says the learned Justices did not consider the relevant aspects of the Australian Consumer Law.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
[1][2005] QCA 294 at [3].
The learned Justices did not misunderstand the nature of Mr Rynne’s email service. They did not suggest that he could have accessed his TPG emails from the local library. They said[2] that he could have accessed his information in other ways, including a temporary email address or all sorts of other avenues.
[2]Transcript page 1-12, lines 45-47.
The essential question, which the learned Justices addressed in a shorthand way, was whether the cost of an airfare to Europe was reasonably incurred because Mr Rynne lost some emails. The learned Justices determined that it was not reasonable.
There is good reason for their decision. In his claim, Mr Rynne referred to the fact that the research was required for on-site filming of a documentary. He told the learned Justices[3] that, when he realised the email information was lost, he decided to investigate further (my emphasis) in person. The learned Justices observed that the air travel didn’t entirely relate to the lost emails[4]. Mr Rynne replied by saying[5] Yes. Because the airfare was only – the claim for the airfare is the only claim that I’m making. I haven’t made any claim for accommodation, train trips… That Mr Rynne spent more than the air fare in his research, but did not claim it, is no answer to the proposition that the air fare did not relate to the lost emails but was a consequence of his desire to do further on-the-ground research.
[3]Transcript page 1-12, lines 38-42.
[4]Transcript page 1-14, lines 5-6.
[5]Transcript page 1-14, lines 8-10.
I am satisfied that the transcript shows that Mr Rynne’s decision to fly to Europe was not motivated by his loss of emails but by his desire to engage in further research. The learned Justices were right to dismiss this portion of Mr Rynne’s claim.
Mr Rynne referred the appeals tribunal to the High Court’s decision of Australian Competition and Consumer Commission v TPG Internet Pty Ltd[6]. He says that, because the High Court found TPG had engaged in false and misleading conduct, so the learned Justices should have found. He says that, had he known he would lose emails, he would never have bought the service.
[6][2013] HCA 54.
Those submissions may be correct. Mr Rynne still has to demonstrate that his loss arose because of TPG’s false and misleading conduct. He still faces the difficulty that, as I have observed, he did not incur the airfare because of the lost emails.
There is no reasonably arguable case that the learned Justices were in error. Leave to appeal should be refused.
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