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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Mansfield v Samsung Australia  QCATA 5
17 January 2020
On the papers
Leave to appeal refused.
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – where the applicant claimed the replacement cost of a mobile telephone – where there was limited evidence offered by the applicant in support of its claim – where the respondent manufacturer made an offer to refund the original purchase price subject to proof purchase – where Justices of the Peace wrongly noted the order was by consent – where the order required proof of purchase prior to refund – where the applicant was unable to provide proof of purchase – whether leave to appeal should be granted in the circumstances
Queensland Civil and Administrative Tribunal Act 2009 s 133(1)
ACI Operations P/L v Bawden  QCA 286 McDonald v Queensland Police Service  QCA 255
Pickering v McArthur  QCA 294
Spaulding v Law Institute of Victoria  VSC 632
Stead v State Government Insurance Commission (1986) 161 CLR 141
Self-represented by L Christensen
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- Mr Mansfield purchased an S6 Samsung mobile telephone on about 2 August 2016.
- He had a problem with the speaker in the telephone and complained to Samsung. Samsung replaced it with another model S6.
- Mr Mansfield decided the telephone needed to be washed and mindful that there was a warranty about the phone being water resistant he put it into water. He had problems with the phone after that and he returned it to Samsung.
- That model S6 was eventually replaced by Samsung again with another mobile, this time an upgraded S7 model, new but refurbished. Mr Mansfield decided to test the phone’s water resistance features again and again put it into water. Again, he found he had problems with the phone.
- He wanted Samsung to refund him the price of a new model S7. Samsung refused that demand on the basis he had misused the telephone.
- Mr Mansfield commenced proceedings in the tribunal to recover an amount of $1,345 as the cost of a replacement model S7 plus his filing fee of $120.50.
- The matter was heard before Justices of the Peace on 4 April 2019. At the conclusion of the hearing the Justices of the Peace ordered by consent that Samsung refund to Mr Mansfield the cost of the original phone “once given the proof of purchase of this phone” and pay him his filing fee.
- Mr Mansfield now seeks to appeal that decision. Given this is an appeal from a decision made in the tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.
- Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected. There may be other relevant considerations, but these are primary. The mere fact that there has been an error, or that an error can be detected in the judgment below, is not ordinarily by itself sufficient to justify the grant of leave to appeal.
Proposed grounds of appeal
- Mr Mansfield’s complaints about the order made appear to be twofold.
- First the remedy should have been based on the retail cost of the upgraded S7 phone last provided, not the original telephone.
- Second he did not consent to the order made by the Justices of the Peace.
- Mr Mansfield did not explain at the hearing below nor does he say in his submissions on appeal why he is entitled to be paid the retail cost of an S7 telephone when he purchased an S6.
- Mr Mansfield’s problem is that he cannot produce a receipt for the purchase of the original S6 telephone. At the hearing he was asked about that and he assured the Justices of the Peace that he definitely had a record of purchase, but could not produce it at the time. He has not been able to locate it however to date.
- At the hearing Samsung made an offer to refund him his purchase price for the original telephone. The Justices of the Peace then asked him how much he had paid for it. He said he did not know. That was surprising, given he had been in dispute with Samsung for nearly two years about the telephone.
- Mr Mansfield admitted that he had not purchased the original telephone new. He bought it second-hand off eBay. He said nothing about paying the recommended retail price for a S6 telephone at the time. Given it was second-hand and given it was purchased via the eBay site, potentially he may have paid far less. If it was not in good order when he bought it he may have paid very little.
- He also offered no evidence about the terms of warranty associated with any of the telephones, not just the original S6 telephone. He simply asserted he was entitled to a “new telephone warranty” with each new telephone provided to him and the warranties provided “new for old”.
- The Samsung representative disagreed with that claim. He said the original telephone warranty (12 months) applied from date of purchase and each new telephone they had provided to Mr Mansfield had themselves carried only a three month replacement warranty. He made it clear the new telephones did not each have an additional 12 month warranty.
- Mr Mansfield did not make clear at the hearing before the Justices of the Peace what cause of action he pursued. If based on breach of contract (warranty), he offered scant evidence about the terms of warranty, under which warranty he was claiming and how the warranty was breached. He made reference to an advertisement about the Samsung S7 telephone being water and dust resistant, but it is unclear whether that formed part of a warranty.
- Potentially, his claim could have been based on a breach of statutory guarantee as to either acceptable quality or fitness for purpose of goods under the Australian Consumer Law (ACL) brought against Samsung as the manufacturer of the goods.
- By s 272 ACL an affected person in relation to goods is entitled to recover damages from a manufacturer or any reduction in the value of the goods resulting from the failure to comply with a guarantee based on whichever is the lower, the price paid for the goods or the average retail price of the goods at the time of supply.
- A person is only an affected person in relation to goods, however, if that person is a consumer purchasing the goods in trade or commerce. Mr Mansfield offered no evidence about his purchase on eBay. The seller could have been an individual selling a personal telephone and therefore the sale was not one made in trade or commerce, which would mean the ACL guarantees did not apply.
- It appears from reading the transcript that the order made by the Justices of the Peace was only prompted by Samsung’s offer made during the hearing to refund the original purchase price. There was no admission of liability associated with that concession I note. Samsung made it clear however that the refund was subject to proof of purchase of the telephone by Mr Mansfield. That was reasonable in the circumstances.
- It is unclear why the Justices of the Peace expressed the terms of the order as consensual. A perusal of the transcript clearly shows there was no consent order agreed between the parties. The wording of the order was therefore incorrect.
- Given the weak case presented by Mr Mansfield, the outcome of the proceedings below was very favourable to him.
- After the hearing, once he realised he could not find his original receipt or otherwise prove how much he paid for the original telephone, appropriately he should have applied to the tribunal to renew the order on the basis it was not possible for the tribunal’s decision to be complied with. The Queensland Civil and Administrative Tribunal Rules 2009 (Qld) requires however that such application be made within 28 days of being given notice of the decision. That time limit has now long expired although there is a potential extension available. How the terms of the order could be amended to make it effective, given Mr Mansfield can offer no proof of his purchase, remains unclear however.
- In Stead v State Government Insurance Commission the High Court said:
…an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
10. For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
- Whilst the High Court was dealing there with an issue of breach of natural justice, I note similar futility in returning the matter to the Justices of the Peace here.
- Given the primary issue motivating Mr Mansfield to seek to appeal the decision below appears to have been his inability to prove, either his purchase of the original S6 telephone or the amount he paid for it, given those essential proofs still elude him, it is difficult to see how any other more appropriate order would be made if remitted to the Justices of the Peace for reconsideration. The only error has been the wording of the order.
- In these circumstances, I conclude the Justices of the Peace did make an error, but the error does not justify the grant of leave to appeal. Mr Mansfield has suffered no substantial injustice which calls for remediation.
Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 142(3)(a)(i).
Pickering v McArthur  QCA 294 ; McDonald v Queensland Police Service  QCA 255 .
For example, if a question of law is identified that is of general or public importance: Spaulding v Law Institute of Victoria  VSC 632 .
ACI Operations P/L v Bawden  QCA 286 per McPherson JA.
Transcript(T)1-15 Line(L) 6-10
Competition and Consumer Act 2010 (Cth) Schedule 2.
QCAT Act s 133(1).
Queensland Civil and Administrative Tribunal Rules 2009 r 89.
QCAT Act s 61.
 (1986) HCA 54; (1986) 161 CLR 141.
Ibid  – .
- Published Case Name:
Mansfield v Samsung Australia
- Shortened Case Name:
Mansfield v Samsung Australia
 QCATA 5
17 Jan 2020