Bryant v Telstra Corporation Ltd [2012] NSWCA 330

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bryant v Telstra Corporation Ltd [2012] NSWCA 330 Hearing dates: 11 October 2012 Decision date: 11 October 2012 Before: Barrett JA (at [1] and [16]), Tobias AJA (at [15]) Decision: Application for leave to appeal dismissed with costs Catchwords: APPEAL - application for leave to appeal - whether arguable case - no matter of principle Legislation Cited: Trade Practices Act 1974 (Cth), s 74(1) Category: Principal judgment Parties: Joseph Patrick Bryant - Applicant Telstra Corporation Ltd - Respondent Representation: Mr T J Boyd - Applicant Mr D G Healey - Respondent Luke Clarke Solicitor - Applicant Dibbs Barker Lawyers - Respondent File Number(s): 2012/194227

Judgment 1BARRETT JA: The respondent to this application for leave to appeal (Telstra) is a supplier of telecommunications services. The applicant entered into a contract with Telstra for the provision of a mobile telephone service and, as an incident of that contract, was supplied by Telstra with a mobile telephone handset. 2The applicant had previously been a customer of a rival supplier (Optus). The contract he entered into with Telstra was on terms that the telephone number he had had when supplied by Optus would become the number of the new service he had with Telstra. 3Some time after the applicant entered into the contract with Telstra, it became clear to him that certain (but not all) persons attempting to call him on his Telstra mobile phone were not getting through to that phone. It was found in the proceedings brought by the applicant against Telstra in the District Court that that had in fact been the case during the period 9 March 2009 to 8 June 2009. 4It was also found that the calls the applicant did not receive were calls originating through the Optus network, that is, calls made by persons who were subscribers to the Optus service or some other service using the Optus network. 5Furthermore, the judge proceeded on the basis that "it was not the service provided by Telstra that did not allow incoming calls to be received from the Optus network, rather it was a problem with Optus that prevented calls from their network being received by the plaintiff's phone or phone service". 6The applicant wishes to appeal against the decision of the District Court that Telstra did not breach a warrant implied by s 74(1) of the Trade Practices Act 1974 (Cth) into the contract between the applicant and Telstra. Section 74(1), now superseded but in force at the relevant time, was in these terms: "In every contract for the supply (otherwise than by way of competitive tender) by a corporation in the course of a business of services to a consumer there is an implied warranty that the services will be rendered with due care and skill and that any materials supplied in connexion with those services will be reasonably fit for the purpose for which they are supplied." 7The applicant takes issue with the aspect of the decision that relates to the mobile phone itself, that is the physical object consisting of the handset in the nature of a radio transmitter and receiver together with its simcard. He says that the judge should have found that that physical object, being "materials supplied in connection with" the telephone service itself, was not "reasonably fit for the purpose for which" it was supplied, being, the applicant says, the purpose of obtaining access to all phone calls made to his number from services provided by all service providers. 8Findings of fact not challenged by the applicant are to the effect that the physical object was well able to make available all calls received on to the Telstra network and directed to the telephone number applicable to that handset. 9The purpose for which the handset was supplied was the purpose of allowing access to the Telstra network to make and receive telephone calls by means of that network. As to incoming calls, the purpose cannot have been more than to obtain through the handset such calls directed to its number as were actually received on to the Telstra network itself according to and in the course of the due and regular operation of the Telstra network. 10As was recognised by the judge, the handset was capable of receiving calls transmitted from all sources. He said at paragraph [56] of the judgment: "The telephone itself that was supplied and the mobile telephone service provided by Telstra was at all material times able to make and receive calls. However, that service and telephone could not receive a call that was never sent or transmitted." 11And later in the same paragraph: "[T]here is no evidence on which I could find on the balance of probabilities that either the telephone or service supplied did not allow calls to be received." 12The finding that it was some deficiency in the Optus network, not any failure in the due and regular operation of the Telstra network, that deprived the applicant of some calls made by persons dialling his number was a solid foundation for the decision that the applicant, as plaintiff in the District Court, had failed to establish that the handset supplied to him was not reasonably fit for the purpose for which it was supplied - added to which, as I have said, the handset, as a handset, was, on the judge's findings, at all times functional and capable of operating fully and effectively including during the period 9 March 2009 to 8 June 2009. 13Since no finding of fact would be challenged on appeal, the prospects of success in the appeal the applicant wishes to bring are negligible. 14The application for leave to appeal should be dismissed with costs. 15TOBIAS AJA: I agree 16BARRETT JA: The order is that the application for leave to appeal is dismissed with costs.