Australian Post Corporation v Boon [2014] QCATA 17

CITATION: Australian Post Corporation v Boon [2014] QCATA 17 PARTIES: Australian Postal Corporation (t/a Australia Post) (Appellant) v Daniel Boon (Respondent) APPLICATION NUMBER: APL493-13 MATTER TYPE: Appeals HEARING DATE: 30 January 2014 HEARD AT: Brisbane DECISION OF: Dr Forbes, Member DELIVERED ON: 4 February 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The decision of the Tribunal herein, delivered on 16 October 2013, is set aside. 4. The action commenced as Case Number 362/13 (Southport) on 10 May 2013 is dismissed. CATCHWORDS: APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL CLAIM – whether breach of contract to deliver by Express Post – whether loss alleged a reasonably foreseeable result of breach, if any – whether error of law in application of Australia Post General Terms and Conditions – whether error in finding loss recoverable – leave to appeal granted – appeal allowed Australia Post Terms and Conditions, clause 39 Australian Postal Corporation Act 1989 (Cth), s 32 Competition and Consumer Act 2010 (Cth), Ch -- 1 of 6 -- 2 2 Part 2.3, Part IX, Sch 2, s 267 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 32 Endeavour Foundation v Weaver [2013] QCA 371, cited Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145 New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20, cited O’Donovan v Western Australian Alcohol and Drug Authority [2014] WASCA 4, cited The Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54, cited Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, cited 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 (QCAT Act). REASONS FOR DECISION [1] On 16 October 2013 the Tribunal ordered the appellant Australian Postal Corporation (“APC”) to pay the respondent Daniel Boon (“Boon”) $1,453.00, including costs,1 within 14 days. The APC seeks leave to appeal.2 [2] Boon’s claim concerned the late delivery of an Express Post package addressed to the Brazilian Consulate in Sydney. Boon posted the package at the APC’s Chevron Island office on the Gold Coast on Thursday, 29 March 2012. It contained documents in support of an application for a visa to visit Brazil. [3] APC’s Express Post service “guaranteed” delivery within the Express Post network (including Sydney) on the next business day, Friday 30 March 2012. It was not delivered until Monday 2 April 2012. [4] As a result, Boon complains, the issuing of his visa was delayed. He was obliged to postpone his flight to Brazil, and to re-book his accommodation, at an additional cost of $1,355. He claims that amount as damages for breach of contract. APC says that if any such breach occurred (which it 1 Filing fee $98. 2 Application for leave to appeal filed 12 November 2013. -- 2 of 6 -- 3 denies) the amount claimed is not recoverable, and that Boon is entitled only to a free Express Post envelope, which he has received.3 Was there a breach of contract? [5] The appellant’s Express Post service is subject to the Australian Postal Corporation Act 1989, (“the Act”) and more particularly, to the Australia Post Terms and Conditions (“APTC”), authorised by section 32(1) of the Act, which provides: Subject to any express provision of this or any other Act, the terms and conditions of a service supplied by Australia Post for a person are: (a) so far as Australia Post and the person agree on terms and conditions for the supply of the service -- the agreed terms and conditions; and (b) so far as Australia Post and the person do not agree on terms and conditions -- the terms and conditions determined by the Board [of Directors of Australia Post]4 that are applicable to the supply of the service.5 [6] There is no evidence that the parties agreed upon a variation of the APTC. The postage of this visa application was not unique. No doubt Mr Boon, like many other customers of the APC, sought and received an assurance of next-day delivery, but that amounted to no more than a repetition of the relevant APTC terms. There is no evidence that the unidentified clerk at APC’s Chevron Island office was authorised to vary those terms, and it is highly unlikely that she was the APC’s agent for that purpose. [7] The APTC’s relevantly state: 39.1 Australia Post guarantees delivery of express post articles within specified times between specified places, when the article is lodged for carriage within Australia by the specified posting times published by Australia Post ... 39.4 Delivery shall not be guaranteed by Australia Post under clause 39.1 ... where: 39.4.1 ... the [addressee’s] premises are unattended or there is no person present to whom the article can be delivered in accordance with these terms and conditions... [8] As it happens, the business hours of the Brazilian Consulate in Sydney end at 1 pm, and the official siesta then lasts until 9 am on the next business day.6 [9] An employee of the APC attempted to deliver the subject package to the Consulate on Friday 30 April 2012,7 but did not arrive until after 1 pm. No 3 Transcript of hearing, 4 September 2013 (“Transcript”) page 9, line 4. 4 Australian Postal Corporation Act 1989 (Cth), s 3 (Interpretation). 5 APTC, clause 39 6 Email Consulate-General of Brazil, Sydney, to appellant, 30 October 2013. This item, as part of the APC’s submission filed on 9 December 2013, is new evidence. However, in the absence of an objection, I allow it. 7 Transcript page 7 lines 37ff. -- 3 of 6 -- 4 other means of delivery were available.8 The APC’s promise of next-day delivery does not imply that delivery will be before 1 pm. The next business day was Monday 2 April 2012, and it is common ground that delivery occurred on that day. [10] Apparently the postman who usually worked in the Consulate’s sector of Sydney was away, and the task of delivering Boon’s papers fell to another employee. But an attempt to make something of this fact9 is a distraction. It would be fanciful to imply that the usual Express Post rules were amended, for Boon’s benefit, by a term that delivery had to be effected by a postman fully aware of the leisurely hours of the Brazilian Consulate. And in the absence of evidence I decline to assume that the “usual” postman “would be aware of the Consulate hours and so plan his delivery”.10 Important as the matter was to Mr Boon, it is not to be expected that the Sydney GPO would share his personal concerns. [11] In my view the foregoing reasons provide a short answer to Boon’s case. The failure to deliver on Friday, 30 March 2012 is excused by clause 39.4.1 of the Australia Post Terms and Conditions. Accordingly, whatever the precise contents of Boon’s discussion with the APC employee at Chevron Island, there was no breach of contract. It follows that it is strictly unnecessary to consider the Competition and Consumer Act 2010 (Cth). No case has been made to prove an unfair contract within the ambit of Chapter 2, Part 2.3 of the latter Act. Express Post envelopes bear a note to the effect that articles are carried under the APC’s terms and conditions. Those who wish to check them are given references to a website, and to the telephone number of an inquiry office. There is no evidence of a material alteration to these details since March 2012. [12] The consequences of the Consulate’s early closing time were unfortunate for Mr Boon, but sympathy is tempered by the fact that, while he relied on a “turnaround time” of just 10 days, the Consulate required at least 15 of its “working days” to process his visa.11 It follows that, even if the Consulate had received his papers on 30 March 2012, the visa would probably not have been available by 13 April 2012, when he originally planned to leave.12 He cut it too fine, and would now have others held responsible. In the event he departed on 18 April 2012.13 If a breach, what damages? [13] If it were held that APC breached the agreement, Boon would then have to satisfy the Tribunal that his extra expenses were a reasonably foreseeable result of the putative breach.14 (Notably, the Australian Consumer Law 8 Email Consulate-General of Brazil, Sydney, to appellant, 30 October 2013. 9 Submissions of Boon filed 3 December 2013 paragraphs 3 – 7. 10 Ibid, paragraph 5. 11 Email Consulate to APC, 31 October 2013. 12 Annexure “C” to Application filed 10 May 2013. 13 Ibid, Annexure “D”. 14 Competition and Consumer Act 2010 (Cth), Sch 2, s 267(4). -- 4 of 6 -- 5 departs from the common law test in Hadley v Baxendale15 in favour of the language of tort.) [14] Boon’s initial evidence about his dealings with the Chevron Island post office was vague: “I hand delivered [it] ... with the implication being that it would be in Sydney the following morning ... which would then facilitate my being issued with a visa”.16 The word “implication” indicates that Boon had his visa application in mind (as one would expect). It does not necessarily follow that he told the post office clerk about that application, let alone his tight time frame, or the risk of extra expense (if indeed he foresaw that possibility at the time). It was not until Mr Hardin JP asked him a very leading question that an explicit claim to that effect was made: Hardin JP: Mr Boon, the – did you let the people at Chevron Island [know] the nature of the documents you were sending and the importance of their arrival time? Mr Boon: I certainly did, Mr Hardin ... they knew ... that I needed to get my passport and visa back within a certain time frame... [15] If Boon’s grateful response to the leading question is accepted at face value, several questions remain: did he tell the post office just how tight the time frame was? We do not know; there is no explicit finding that he did.17 If he did, is it more probable than not that the APC reasonably foresaw, or should have foreseen, that Boon would suffer financial loss if the delivery took two business days instead of one? There is no evidence that Boon mentioned that to APC staff as a probable or possible consequence of delay. But if he did, was it a risk that the APC could and should have tried to avert by some action on its part, considering “the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the [APC] may have [had]”?18 It does not appear that the Tribunal took this essential balancing process into account. However, it is a vital step in the process of deciding what is reasonably foreseeable. [16] Besides, was the additional expense really a “result” of the breach, if any? Probably not, in view of the difference between the significantly different “time frames” contemplated by Boon and the Consulate, respectively.19 15 (1854) 9 Ex 341 at 354; 156 ER 145 at 151; Commonwealth v Amann Aviation Pty Ltd (1992) 174 CLR 174 at [51] 16 Transcript page 2, lines 33-35. 17 Decision 16 October 2013 paragraph [2] 18 Wyong Shire Council v Shirt (1980) 146 CLR 40 at 46-47 per Mason J; New South Wales v Fahy (2007) 232 CLR 486 at [6]; Endeavour Foundation v Weaver [2013] QCA 371 at [22]; O’Donovan v Western Australian Alcohol and Drug Authority [2014] WASCA 4 at [65]. 19 See paragraph [12], above. -- 5 of 6 -- 6 Conclusion [17] Clearly Mr Boon has suffered additional expense, and (possibly worse) non-compensable anxiety and inconvenience. But sympathy cannot avoid a respectful conclusion that the Tribunal fell into legal error in finding a breach of contract. Further – if it matters – it erred in finding that that the losses claimed were a reasonably foreseeable result of the breach that they mistakenly imputed. [18] Leave to appeal must be granted, the appeal is allowed, and the decision of the primary Tribunal is set aside. There will be orders accordingly. Orders: 1 Leave to appeal is granted. 2 The appeal is allowed. 3 The decision of the Tribunal herein, delivered on 16 October 2013, is set aside. 4 The action commenced as Case Number 362/13 (Southport) on 10 May 2013 is dismissed. -- 6 of 6 --