Claimants Seek Civil Claims Against Australia Post
Short v Australia Post (Civil Claims) [2022] VCAT 115 (31 January 2022)
Australia Post refused to make further parcel deliveries to Mr Short and Ms Libson. Mr Short and Ms Libson lodged an application with the Tribunal seeking $4,800.00 as well as an injunction. Australia Post filed and served points of defence. The Court, in deciding whether or not to dismiss the claim relied upon Australian Consumer Law and Fair Trading Act 2012 (Vic).
Facts:
On 2 February 2021, Mr Short and Ms Libson lodged an application with the Tribunal seeking $4,800.00 and an injunction in relation to Australia Post ceasing to deliver parcels to their residential address and to instead deliver parcels to the local post office for collection.
By orders made on 13 May 2021, the Tribunal noted that there was no relevant contract between Mr Short and Ms Libson and Australia Post. The Tribunal made directions for the filing and service by Mr Short and Ms Libson of an amended points of claim and filing and service by Australia Post of points of defence. On 11 June 2021, Mr Short and Ms Libson filed and served amended points of claim.
On 8 July 2021, Australia Post filed and served points of defence. On 2 December 2021, the matter came on for hearing before the Court by video conference. Mr Short renewed a procedural application for the production of various documents from Australia Post, for which he had applied in writing to VCAT on 12 May 2021.
In relation to document categories 1.1.7 and 1.1.8, Mr Ballantyne advised that all of the documents which existed in these categories had previously been provided to Mr Short and that some documents were sought by Mr Short due to an internal mis-communication by Australia Post. Those documents did not exist. Mr Short accepted this response. The Tribunal did not need to rule on Mr Short’s application for documents.
Issues:
I. Whether or not Australia Post's service was rendered with reasonable care and skill, appropriate remedy, compensation granted.
II. Whether or not the Australia Post contravened the Consumer Guarantees in the ACL.
Applicable law:
Australian Consumer Law and Fair Trading Act 2012 (Vic) (“the ACL&FT Act”) s 8 - provides that the ACL text contained in Schedule Two of the Competition and Consumer Act 2010 (the C&C Act), a Commonwealth Act, applies as a law of the State of Victoria.
Australian Consumer Law and Fair Trading Act 2012 (Vic) (“the ACL&FT Act”) s 60 - provides that 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.
Australian Consumer Law and Fair Trading Act 2012 (Vic) (“the ACL&FT Act”) s 232 - provides that a court may grant an injunction, in such terms as the court considers appropriate, if the court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:
(a) contravention of a provision of Chapter 2, 3 or 4; or
(b) attempting to contravene such a provision; or
(2) The court may grant the injunction on application by the regulator or any other person.
(3) Subsection (1) applies in relation to conduct constituted by applying or relying on, or purporting to apply or rely on, a term of a contract that has been declared under section 250 to be an unfair term as if the conduct were a contravention of a provision of Chapter 2.
Briginshaw v Briginshaw (1938) CLR 336 at 362 - provides that the seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
Analysis:
Mr Short gave evidence that in 2019, they had experienced difficulties with parcel deliveries to their home. Deliveries were not made when they were home and cards were left for pickup of parcels at the post office, parcels were left at the front door and the doorbell was not rung and parcels were thrown up the external stairs to their front door. In about October 2019, they lodged a written complaint with Australia Post about the parcel delivery issues.
Mr Short gave evidence that in about March or April 2020, they were undertaking a home renovation. Mr Short accepted that in this period, as there was no access, the driver could not deliver parcels to the front door. After the stairs to the front door were reinstated, Australia Post did not resume delivering parcels to their front door. Australia Post were not leaving cards stating that parcels were unable to be delivered and instead were sending SMS messages that parcels were able to be picked up from the local Post Office.
Mr Ballantyne gave evidence that parcels are being delivered as per Australia Post’s Terms and Conditions, as they are being delivered to the local post office to be collected. Australia Post relied upon clause (xv) of the definition of ‘delivery’ in the Dictionary contained in the Australia Post Terms and Conditions dated November 2020 (the Terms and Conditions) which states that an express post article, parcel or a parcel post satchel will be deemed to have been delivered when it is delivered in accordance with the provisions contained in this dictionary for delivery of articles lodged within Australia for carriage in Australia. Mr Ballantyne advised that they had not received any complaints from Mr Short about not receiving cards for parcels to be collected. Australia Post provided the Tribunal with a handwritten police statement but none of the people who were said to have investigated the matter were called to give evidence.
Conclusion:
The Court is not satisfied that Australia Post had a reasonable opinion that the parcels could not be delivered to the street address. The Court ordered the respondent Australia Post must pay the applicants Mr Wayne Short and Ms Veronica Libson the sum of $3,100.50. Under s115C of the Victorian Civil and Administrative Tribunal Act 1998, the respondent Australia Post must pay the applicants Mr Wayne Short and Ms Veronica Libson the application fee of $217.70. The claim is otherwise dismissed.
