Edrich v Auscomp Computers [2015] QCATA 99

CITATION: Edrich v Auscomp Computers [2015] QCATA 99 PARTIES: Michael Edrich (Applicant/Appellant) v Auscomp Computers (Respondent) APPLICATION NUMBER: APL527-14 MATTER TYPE: Appeals HEARING DATE: 15 April 2014 HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 6 July 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is granted. 2. Appeal allowed. 3. The decision of 10 September 2014 is set aside. 4. The claim is remitted to the tribunal for rehearing. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – CONSUMER/TRADER – where purchase of computer components on line – where seller assembled components into computer – where power supply unit repeatedly failed – where buyer alleged major failure – where tribunal ordered compensation – whether tribunal considered relevant sections of Australian Consumer Law - whether grounds for leave to appeal – the appeals tribunal’s powers on finding an error of law Pickering v McArthur [2005] QCA 294 Ericson v Queensland Building Services Authority [2013] QCA 391 -- 1 of 3 -- 2 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 [1] Michael Edrich wanted a gaming computer. In September 2012, he selected the parts for the computer online from Auscomp Computers, which was offering free assembly. Auscomp invoiced Mr Edrich $2,466.31 and assembled the parts into a computer. Mr Edrich took the computer home. [2] Between October 2012 and 6 May 2014, the power supply on the computer failed five times. On the fourth occasion, Mr Edrich told Auscomp, he was not prepared to accept any further attempts to repair the computer and, if it failed again, he would be seeking a refund. The fifth time the computer failed, Mr Edrich asked for a refund of the purchase price. Auscomp refused, once again fixing the power supply. Mr Edrich collected the computer, which is still working, but persisted with his claim for a refund of the purchase price on the basis that there had been a major failure of the computer. [3] Two Justices of the Peace, sitting as the tribunal in its minor civil disputes jurisdiction, did not order Auscomp refund the purchase price to Mr Edrich. Instead, they ordered that Auscomp pay him $400 compensation. [4] Mr Edrich wants to appeal that decision. He says the tribunal did not apply the Australian Consumer Law correctly. He says the tribunal did not apply the reasonable consumer test in s 260(a). He says the tribunal ordered compensation, but compensation is only available under s 259(3)(b) and his claim does not fall within the tests under s 259. He says the tribunal completely overlooked the fact that he had already rejected the computer in accordance with s 263. He says the tribunal did not assess whether the computer was repaired within a reasonable time under s 259(2)(b). [5] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 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.2 [6] It is true that the tribunal did not discuss the relevant sections of the Australian Consumer Law. That would not necessarily be grounds for leave to appeal. In the tribunal’s minor civil disputes jurisdiction, giving immediate oral decisions accords with the spirit and purpose of the QCAT Act. The appeals tribunal will not expose those decisions to criticism which fails to 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. -- 2 of 3 -- 3 acknowledge the circumstances in which they are given, or the pressure of the tribunal’s caseload. [7] However, there was a preliminary question that the tribunal did not address: what was the alleged breach of the consumer guarantee? Mr Edrich’s submissions assume that Auscomp was in breach of a consumer guarantee. Just as there was no analysis of the Australian Consumer Law to determine the remedy, the tribunal also failed to consider in any detail what guarantee may have been breached. That was an important question because, if there was no breach of an implied guarantee, Mr Edrich was not entitled to either compensation or a refund. In failing to consider this threshold issue, the tribunal erred in its disposition of this dispute. [8] The appeal tribunal’s power to substitute its own decision is regrettably, limited, as the Court of Appeal has pointed out3: Plainly, it is only if the determination of the question of law is capable of resolving the matter as a whole in the appellant’s favour that the appeal tribunal will be in a position to substitute its own decision. Section 146, as already noted, does not entail any re-hearing of the matter, whether on the evidence below or on fresh evidence. [9] Deciding the question of law will not resolve this dispute as a whole. The appeals tribunal cannot substitute its own decision because that will require findings of fact based on incomplete evidence. The tribunal must rehear the dispute. [10] I note, as Auscomp has pointed out in its submissions, that the computer in question is now 2 years and 8 months old and has been working without incident for the last 8 months. Mr Edrich has something of value and the particular facts of this case raise complex questions about the extent of his rights under the Australian Consumer Law. This is a dispute that cries out for a sensible resolution between the parties. [11] Leave to appeal is granted and the appeal allowed. The decision of 10 September 2014 is set aside and the claim is remitted to the tribunal for rehearing. 3 Ericson v Queensland Building Services Authority [2013] QCA 391 at [25] confirmed in Ericson v Queensland Building and Construction Commission [2014] QCA 297. -- 3 of 3 --