Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Acuna v Apple Pty Ltd [2022] NSWCATCD 53 Hearing dates: 17 February 2022 Date of orders: 29 April 2022 Decision date: 29 April 2022 Jurisdiction: Consumer and Commercial Division Before: D Moujalli, Senior Member Decision: The Tribunal orders that the application is dismissed. Catchwords: CONSUMER LAW – Australian consumer law – consumer guarantee to render services with due care and skill – misleading conduct – compensatory principle Legislation Cited: Australian Consumer Law (NSW) Fair Trading Act 1987 (NSW) Cases Cited: Curtis v Potter & Co Pty Ltd t/as The Africa Safari Co [2016] NSWCATAP 196 Escape Media Pty Limited v Lawler [2018] NSWCATAP 17 Haines v Bendall (1991) 172 CLR 60 Hueter v Learn To Trade Pty Limited [2018] NSWCATCD 71 Ireland v WG Riverview Pty Ltd [2019] NSWCA 307; 101 NSWLR 658 Jenkinson v Chaw [2015] NSWCATAP 127 Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 Marks v GIO Australia Holding Ltd (1988) 196 CLR 494 Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80 Weatherill v Bartlett [2017] NSWCA 175 Williams v Toyota Motor Corporation Australia Limited [2022] FCA 344 Texts Cited: Nil Category: Principal judgment Parties: Christian Acuna (Applicant) Apple Pty Ltd (Respondent) Representation: Applicant (Self-represented) J Alquisola (Respondent) File Number(s): GEN 21/44795 Publication restriction: Nil REASONS FOR DECISION Introduction 1. On 30 October 2021 the applicant, Christian Acuna, lodged an application with the Tribunal (the Application). The Application seeks an order for compensation against the respondent, Apple Pty Ltd, in respect of lost income and lost time resulting from problems experienced by the applicant with a mobile phone supplied by the respondent. 2. In the Application, the amount of the claim was stated to be $65,000. At the directions hearing on 22 November 2021, the Tribunal noted that the applicant submits to the jurisdictional limit of the Tribunal being $40,000. In any event, at the hearing on 17 February 2022, the applicant pressed a claim for $16,801.50. 3. At the hearing on 17 February 2022, the applicant represented himself. The respondent was represented Ms Alquisola, an employee of the respondent. 4. The hearing proceeded by telephone. At the hearing each party was given an opportunity to present their evidence, ask questions of the other party and make submissions. Evidence 1. In determining the Application, the Tribunal has had regard to the following: 1. The material filed by the applicant on 21 December 2020. This included a statement by the applicant dated 20 December 2021 and attachments to the statement. This was marked Exhibit A1 at the hearing on 17 February 2022. 2. The matters stated by the applicant in the Application. 3. The material filed by the respondent on 17 January 2022 which in total comprises 11 pages of documents. This was marked Exhibit R1 at the hearing on 17 February 2022. 4. The oral evidence and submissions of the parties at the hearing on 17 February 2022. 1. The findings made by the Tribunal on the basis of the above material is set out below. Review of the Evidence and Submissions of the Parties 1. The applicant's evidence is primarily contained in his statement dated 20 December 2021 which forms part of Ex A1. 2. It appears to be common ground that the respondent supplied the applicant with a new mobile phone, specifically an iPhone 13, on or about 28 October 2021. 3. The applicant gives evidence that he then attempted to upload data from his old mobile phone to his new phone. He states that he contacted the respondent for assistance with this process. He states that a "senior advisor" of the respondent advised him to "update his iMac to the latest operating system in order to access an uncorrupted copy of his previous iPhone data". 4. The applicant gives evidence that when he followed the instructions from the respondent's employee, his "iMac screen went blank". He states that this caused a "complete breakdown" of both his mobile phone and computer. The applicant contends that this problem was caused by the manner in which he had been instructed by the respondent to update his computer. Specifically, he says he was instructed by the respondent to use software known as "iOS support" to update his computer in circumstances where his computer was incompatible with iOS support. He states that his computer is a "late 2014" model which made it incompatible with the "latest iOS version". 5. As a result of the problems with his phone and computer, the applicants says that he was unable to conduct his business of providing professional consultation services as a psychotherapist as he was unable to provide remote consultations. He also says that he was unable to receive booking enquiries while he did not have the use of his phone or computer. He also claims that he had to spend a total of 26 hours and 25 minutes dealing with emails from the respondent and telephone calls with employees of the respondent for the purpose of rectifying the problems with his phone and computer. 6. The applicant says that "all data on both the iPhone and iMac" was eventually restored with the assistance of employees of the respondent. He says that his phone and computer were "inoperative" from 28 October 2021 until 7 November 2021. 7. The applicant relies on a letter from his accountant in relation to his average weekly turnover which the accountant states to be $4,515 per week. 8. He also claims that his time spent on rectifying problems with the phone and computer should be compensated at the rate of $350 per hour which is his standard charge rate for the consultation services which he provides. 9. The respondent accepts that it provided advice and assistance to the applicant for the purpose of "restoring his data backup" from his computer to his new mobile phone. It states that the mobile phone supplied to the applicant did "not have any hardware issues". It also states that if the applicant had ensured that there was back-up of his electronic data in accordance with its recommendations then "no time would be spent by the customer retrieving data". 10. It can be seen from the competing contentions put forward by the parties as set out above that there is a stark contest between the parties as to the factor or factors which caused the problems which the applicant experienced with his mobile phone and computer. The applicant attributes this to errors in the advice provided to him by the respondent. The respondent attributes this to a failure on the part of the applicant to follow its recommendations in relation to the back-up of data. 11. For reasons which are explained below, the Tribunal has not been provided with sufficient material to resolve the critical issue as to the cause of the technical difficulties experienced by the applicant with his mobile phone and computer. 12. The critical issue separating the parties, by its nature, is necessarily a technical one involving some complexity. It is difficult to see how it could be resolved adequately without expert evidence. On 22 November 2021, the Tribunal made an order that evidence was to include "expert evidence as appropriate". No expert evidence was, however, presented by the applicant. Jurisdiction 1. Section 79J of the Fair Trading Act 1987 (NSW) (FTA) gives the Tribunal jurisdiction to hear certain "consumer claims". 2. Having regard to the definitions of "consumer" and "supplier" in section 79D of the FTA and the definition of "consumer claim" in section 79E of the FTA, the Tribunal is satisfied that the Application contains a consumer claim between the applicant consumer and the respondent supplier as defined by Division 1 of Part 6A of the FTA. 3. The amount of the claim, as revised by the applicant, is below the prescribed amount stipulated by section 79S of the FTA. 4. The relevant services in respect of which the claim is made were supplied in October and November 2021. As has already been noted, the Application was made on 30 October 2021. Tribunal is satisfied that the claim was made within the appropriate period of time for the purposes of section 79L of the FTA, ie, within 3 years of the cause of action giving rise to the claim having accrued. 5. The Tribunal is therefore satisfied that the Application contains a consumer claim in respect of which the Tribunal has jurisdiction as conferred by Part 6A of the FTA. The Applicable Law 1. Sections 27 and 28 of the FTA provide for the application of the Australian Consumer Law (relevantly comprising Schedule 2 to the Competition and Consumer Act 2010 (Cth)) as in force from time to time as a law of New South Wales, its reference as the ACL (NSW) and its inclusion as part of the FTA. 2. The jurisdictional provisions relating to consumer claims under Part 6A of the FTA do not identify the specific causes of action which the Tribunal has the power to consider. However, the authorities make clear that the Tribunal has the power to consider claims based on the consumer guarantee provisions under the ACL (NSW) provided the jurisdictional requirements of the FTA in relation to consumer claims are satisfied: Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 at [60] – [108] and [187]. The Tribunal also has jurisdiction to consider a cause of action under s 18 of the ACL: Jenkinson v Chaw [2015] NSWCATAP 127. 3. Section 60 of the ACL (NSW) provides: 60 Guarantee as to due care and skill If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill 1. Sub-section 3(3) of the ACL (NSW) defines a consumer of services for the purposes of the ACL (NSW). 2. In the present circumstances, the applicant acquired both a mobile phone and services in relation to the uploading of data from his old phone to the new phone. The claim is in relation to the services which were provided by the respondent. No complaint is made in relation to the phone itself. 3. It does not appear from the evidence that the respondent allocated a specified price for the services which it provided. The respondent did not, however, contend that the "amount paid or payable for the services" exceeded $40,000 for the purposes of sub-s 3(3) of the ACL (NSW) and there is no evidence to suggest that it did. The Tribunal finds that the amount paid or payable for the services acquired by the applicant did not exceed $40,000. 4. As the amount paid or payable for the services supplied by the respondent did not exceed $40,000, the question does not arise as to whether the services can be described as "of a kind ordinarily acquired for personal, domestic or household use or consumption": see Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80 at [60]. 5. Section 18(1) of the ACL (NSW) provides: 18 Misleading or deceptive conduct (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. 1. Section 79N of the FTA sets out the orders which the Tribunal my make in determining a consumer claim wholly or partly in favour of a claimant. In terms of the relief sought by the applicant, only s 79N(a) appears to be relevant which provides that the Tribunal may make "an order that requires a respondent to pay to the claimant a specified amount of money". 2. Section 79U(1) of the FTA should also be noted which provides as follows: 79U Matters to be considered by Tribunal when making orders (1) When making any orders under this Division, the Tribunal must be satisfied that the orders will be fair and equitable to all the parties to the claim. Consideration and Decision 1. The applicant has not identified the specific cause or causes of action on which he relies to make his claim. Relief can only be granted if a cause of action is available to the applicant. The Tribunal is bound to determine claims in accordance with the general law and established legal principles: Curtis v Potter & Co Pty Ltd t/as The Africa Safari Co [2016] NSWCATAP 196 at [68]-[72]. 2. This places the Tribunal in a difficult position in that it must ascertain for itself the cause or causes of action potentially available to the applicant but, at the same time, being mindful not to deny procedural fairness to the respondent. 3. Having regard to the way the applicant presented his case and the specific allegations made against the respondent, it would appear that the availability of a claim based on s 60 and/or s 18 of the ACL (NSW) should be considered by the Tribunal. Whether the applicant can satisfy the elements of a claim based on one or both of these sections is considered in turn below. Whether there is a breach of the guarantee to render services with due care and skill – section 60 of the ACL (NSW) 1. As has been indicated above, the applicant does not complain about the quality or condition of the phone which he acquired from the respondent. His complaint is in relation to the services which the respondent provided in assisting the applicant with uploading of data from his old phone to his new phone through his computer. 2. Whether the applicant contracted with the respondent only for the provision of a phone, or additionally for the provision of services in relation to uploading information onto the phone, need not be resolved. The definition of "services" within s 60 of the ACL (NSW) was considered by the Court of Appeal in Scenic Tours Pty Ltd v Moore [2018] NSWCA 238 at [168] – [175]. The effect of the reasoning of Sackville AJA (with whom Payne JA and Barrett AJA agreed) is that "services" for the purposes of s 60 of the ACL (NSW) includes the benefits or facilities the consumer can reasonably expect the supplier to provide and is not limited to the terms of any contract between the supplier and the consumer. 3. The respondent's evidence includes literature provided by the respondent to consumers of its products in relation to storing and restoring data on devices supplied by the respondent. That literature contained various recommendations and also stated "Contact Apple Support" in the event that the consumer required more assistance. 4. The applicant gave evidence that when he contacted the respondent for assistance with uploading data onto his new phone, the assistance was readily provided and continued over a number of days with emails being sent to the applicant and various telephone attendances between the applicant and the respondent's employees. 5. The available evidence permits a finding that when the applicant acquired his new phone from the respondent, he had a reasonable expectation that the respondent would provide services to assist him with uploading data onto his new phone and that such services were in fact provided. 6. This then raises the question of whether the services were provided with due care and skill. 7. In Simmons v Broken Hill Service Station Limited Trading as Bromson Energy [2021] NSWCATCD 147 at [20]-[21], the Tribunal stated: 20 The phrase "due care and skill" in s 60 of the ACL is equivalent to the common law duty to take reasonable care: Let's Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 at [6] (Basten and Gleeson JJA); Wade v J Daniels and Associates Pty Ltd [2020] FCA 1708 at [330]. The applicable test is an objective one and all of the facts and circumstances must be considered in the context of the application of an objective standard of due care and skill: see Liu v Zaccaria trading as Precision Automotive Engineers [2017] NSWCATCD 59 at [72]. 21 At common law, failure of a duty to take reasonable care will ground an action for negligence. In has been said that "no conclusion of negligence could be arrived at until, first, the mind conceives affirmatively what should have been done": Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330 at [166] per Gummow J; Metropolitan Gas Co v Melbourne Corporation (1924) 35 CLR 186 at 194 per Isaacs ACJ. In other words, before there can be a conclusion that a respondent has failed to exercise due care and skill there must be an identification of what a reasonable person in the same position of the respondent would have done. 1. Reference ca also be made to the observations by Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [192] that an inquiry in relation to whether a person failed to exercise reasonable care "involves identifying, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk". 2. The applicant asserts that there was an "error" by the respondent that caused the "complete breakdown" of his phone and computer. The alleged error appears to have been the recommendation to update the applicant's computer with "iOS support". 3. The error alleged by the applicant relates to the uploading of data from his old phone to the his new phone through his computer. The allegations of error by the applicant are made in a very generalised manner. There is no clear identification of the factual matters relied upon to support the applicant's assertions. The applicant has not, for example, specifically identified: 1. what he told the respondent about the age, model and characteristics of his old phone and computer; 2. what he told the respondent about how information had been stored and backed-up on his old phone and computer; 3. the specific advice given to him by the respondent; and 4. the specific steps taken by the applicant to follow the advice given by the respondent. 1. Perhaps the most fundamental problem with the applicant's case is that the applicant has not identified at all, yet alone with any specificity, what alternative advice a reasonable person in the position of the respondent would have given to the applicant. There is no means by which the Tribunal can determine whether there was an alternative way for the applicant to upload data onto his new phone which would have been quicker or caused less inconvenience or disruption to the applicant. 2. It should be noted that the applicant states that he was eventually able to restore all of his data onto his new phone and computer with the assistance of the respondent. The real question therefore is whether this did not occur more quickly because of some want of due care and skill on the part of the respondent. Because of the problems with the applicant's evidence, it is not possible for the Tribunal to reach this conclusion. 3. Ultimately it is difficult for the Tribunal to see how it could safely conclude that there was any want of due care and skill in the absence of any evidence identifying what further or different advice the respondent could or should have given to the applicant. 4. For the above reasons, the Tribunal finds that there was no breach of s 60 of the ACL. Whether the respondent engaged in misleading conduct – section 18 of the ACL (NSW) 1. Any claim based on s 18 of the ACL (NSW) would suffer from similar problems to a claim based on s 60, as discussed above, because of the lack of specificity in the applicant's evidence. 2. The applicant has not identified with sufficient specificity the statements made to him by the respondent so as to allow an assessment to be made as to whether, in the relevant circumstances, they were misleading. 3. It is also likely that the advice provided to the applicant was more in the nature of an opinion as to the most appropriate way to upload information onto his new phone rather than a statement of fact. Whether an opinion can be said to be misleading gives rise to specific considerations recognised in the case law. 4. In Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 at [10(6) and (7)] Gordon J said: A statement of opinion will not be misleading or deceptive or likely to mislead or deceive merely because it turns out to be incorrect, misinforms or is likely to do so: Elders Trustee [1987] FCA 332; 78 ALR 193, 242 and Bateman v Slatyer (1987) 71 ALR 553, 559. An incorrect opinion does not of itself establish that the opinion was not held by the person who expressed it or that it lacked any or any adequate foundation: Global Sportsman Pty Ltd [1984] FCA 180; 2 FCR 82, 88. An expression of an opinion which is identifiable as an expression of opinion conveys no more than that the opinion is held and perhaps that there is a basis for the opinion. If that is so, an expression of opinion however erroneous misrepresents nothing: Global Sportsman Pty Ltd [1984] FCA 180; 2 FCR 82, 88. However, an opinion may convey that there is a basis for it, that it is honestly held and when it is expressed as the opinion of an expert, that it is honestly held upon rational grounds involving an application of the relevant expertise. If the evidence shows that the opinion was not held or that it lacked any or any adequate foundation, particularly if the opinion was expressed as an expert, a statement of opinion may contravene s 52 of the TPA… 1. In Ireland v WG Riverview Pty Ltd [2019] NSWCA 307; 101 NSWLR 658 at [34], Bell ACJ said: Where, however, it is established that a statement or representation is or must have been understood by its target audience as one of opinion or belief, even though presenting at one level as one of fact, liability will not be strict; rather, it will generally depend upon an assessment as to whether or not the belief or the opinion was honestly held and "perhaps" (see [24] above) whether or not the maker had a reasonable basis for the belief or opinion. Other than in cases of statements as to future matters (where the statutory presumption is engaged: see, for example, Competition and Consumer Act 2010 (Cth), Sch 2 — Australian Consumer Law, s 4), it will be for a plaintiff to establish the lack of reasonable basis for belief if misleading or deceptive conduct is to be established. 1. To the extent that any advice from the respondent involved a statement of opinion, the applicant has not established that the respondent or its employees did not honestly hold the opinion or did not have a reasonable basis or adequate foundation for the opinion. 2. Even if the applicant were able to establish that there was misleading conduct by the respondent (which for clarity I note that I am not satisfied that he has established), he has not established any loss in the relevant sense. It is well established in the case law that the loss which is compensable for a claim based on misleading conduct is the prejudice or detriment which a claimant has suffered as a result of acting in reliance on the misleading conduct. 3. As McHugh, Hayne and Callanan JJ explained in Marks v GIO Australia Holding Ltd (1988) 196 CLR 494 at [48]: [48] A party that is misled suffers no prejudice or disadvantage unless it is shown that that party could have acted in some other way (or refrained from acting in some way) which would have been of greater benefit or less detriment to it than the course in fact adopted. 1. This principle has been stated in many cases including Weatherill v Bartlett [2017] NSWCA 175 at [21]-[22]; Ireland v WG Riverview Pty Ltd [2019] NSWCA 307; 101 NSWLR 658 at [83]; Escape Media Pty Limited v Lawler [2018] NSWCATAP 17 at [26]-[28]. 2. Adopting the language used by the Appeal Panel in Escape Media Pty Limited v Lawler at [28], the applicant has not shown how he was "worse off" as a result of any conduct on the part of the respondent. That is because he has not shown that there was some alternative way of uploading data onto his new phone that would have been more beneficial or less disruptive or disadvantageous to him than the way in which he was advised to do so by the respondent. If there was misleading conduct, the applicant would need to show "what would probably have happened but for the contravening conduct" to establish compensable loss (see Weatherill v Bartlett at [21]). He has not done so. 3. For the above reasons, the Tribunal concludes that there was no misleading conduct on the part of the respondent. If it is wrong in this conclusion, it has not been shown that the applicant suffered any loss as a result of any misleading conduct on the part of the respondent. Some comments on the amount claimed by the applicant 1. The conclusions reached above make it strictly unnecessary to consider the applicant's calculation of his damages. Having heard the applicant's submissions on this issue, it remains appropriate to make some comments on the applicant's calculation of the loss alleged to have been suffered by him. 2. Even if the Tribunal were of the view that there had been a breach of ss 18 and/or 60 of the ACL (NSW), the applicant has not presented evidence that would allow an assessment of damages that would conform to the compensatory principle. 3. In Haines v Bendall (1991) 172 CLR 60 at 63, Mason CJ, Dawson, Toohey and Gaudron JJ said: The settled principle governing the assessment of compensatory damages, whether in actions of tort or contract, is that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed... Compensation is the cardinal concept. It is the one principle that is absolutely firm, and which must control all else... Cognate with this concept is the rule, described by Lord Reid in Parry v Cleaver [1970] AC 1 at 13, as universal, that a plaintiff cannot recover more than he or she has lost. [citations omitted] 1. The compensatory principle referred to in Haines v Bendall by reference to actions in tort and contract has also been applied to statutory causes of action such as those under the ACL: see Williams v Toyota Motor Corporation Australia Limited [2022] FCA 344 at [422]. 2. The applicant's calculation of his damages appears to contain both over-compensation and double-compensation for any loss he may have suffered if he were able to establish liability. 3. The applicant claims compensation based on notional earnings of $4,515 per week in the event that his phone and computer were operative to conduct remote consultations during the period from 28 October 2021 to 7 November 2021. There is, however, no credible evidence to support the contention that the applicant would likely have generated earnings of this amount in the event that his phone and computer were operative. There is no evidence, for example, of bookings which had been made for consultations which could not take place or which had to be re-scheduled. There is no evidence of the number of consultations which the applicant generally conducts each week and their duration. The only supporting evidence is a letter from the applicant's accountant stating that the applicant's average weekly turnover is $4,515. There is no indication as to the period on which the stated average turnover is based or the sources of the turnover. No financial statements or income tax assessments have bene provided. 4. The applicant also seeks to be compensated at a rate of $350 per hour for a total of 26 hours and 25 minutes dealing with emails from the respondent and telephone calls with employees of the respondent for the purpose of rectifying the problems with his phone and computer. He seeks a total amount of $9,1897.50 on this basis. 5. There are manifold difficulties with this aspect of the applicant's claim. 6. First, the Tribunal has not been presented with any means of assessing whether the amount of time that the applicant claims to have spent on "read, respond and action" email was a reasonable amount of time. 7. Secondly, even if it was a reasonable period of time for the applicant to spend 26 hours and 25 minutes on rectifying the problems with his phone and computer, there is no evidence to establish that the applicant could have spent this time generating income at the rate of $350 per hour in the absence of having to deal with problems with his phone and computer. 8. Thirdly, the applicant is seeking to be compensated for the alleged lost income from consultations which he says he could not conduct and also, during the same period, time spent on rectifying the problems with his phone and computer. It is difficult to see how this would not be double-compensation for any loss suffered by the applicant while his phone and computer were inoperative. Conclusion and Orders 1. For the above reasons, the Tribunal will make an order dismissing the Application. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 June 2022