Bromley v Ward
[2022] QCAT 275
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Bromley v Ward & Anor [2022] QCAT 275
PARTIES: BERNADETTE BROMLEY (applicant)
v
GREGORY WARD
CTJ JEWELLERY PTY LTD(respondent)
APPLICATION NO/S:
MCD0031-21
MATTER TYPE:
Other minor civil dispute matters
DELIVERED ON:
11 May 2022
HEARING DATES:
15 September 2021, 10 September 2021, 24 June 2021, 30 April 2021, 8 April 2021
HEARD AT:
Southport
DECISION OF:
Adjudicator Alan Walsh
ORDERS:
1. The Respondents pay the Applicant $22,033.00 for claim, $1,841.30 for interest, and $352.00 for filing fee, in total $24,226.30, no later than 4pm on 25 May 2022.
2. The Applicant return to the Respondent, CTJ Jewellery Pty Ltd, the brown diamond presently in her possession, by handing it to a current director of the company as ascertained by an ASIC search no later than 4pm on 1 June 2022.
DIRECTION
3. QCAT Registry email the Orders and these Reasons for Decision to the parties and to Solicitors of record for the Respondents.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – CONSUMER CLAIM – where company carried on business as diamond dealer and manufacturing jeweller – where company controlled by sole director and shareholder – where company contracted with customer to unset and reset diamonds in jewellery – where company by its staff and director took possession of customer’s jewellery and diamonds – where diamonds unset and packeted – where contract terminated by mutual agreement – where customer took back separately packeted rings and diamonds – whether all unset diamonds returned to customer – whether lesser quality brown diamond substituted for solitaire diamond before collection
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – where customer a consumer – where company a trader as defined in Schedule 3 of the QCAT Act – where company supplied services in trade and commerce – where Australian Consumer Law applied for consumer protection – where statutory guarantee services be rendered with due care and skill – where statutory guarantee that services reasonably fit for express or implied purpose – where statutory prohibition against misleading and deceptive conduct – whether statutory guarantee and prohibition breached – whether company liable – whether director involved – whether director liable as accessory
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – EVIDENCE – ONUS – PROOF – STANDARD OF PROOF – where onus of proof on alleging party – where civil standard proof on the balance of probability – where dishonesty or fraud implied in claim and response – where dishonesty or fraud alleged in evidence – whether Briginshaw standard of proof applies – whether fraud and dishonesty proved to reasonable satisfaction of Tribunal – whether other allegations sufficiently proved on mere balance of probabilities – whether retail diamond replacement cost the appropriate measure of compensable loss
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – TORTS – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – IN GENERAL –whether law of negligence applies – whether contractual duty of care concurrent with duty of care in tort – whether Civil Liability Act 2003 (Qld) applies – whether customer vulnerable – whether customer owed duty of care – whether company and director concurrently liable to customer for negligence
Acts Interpretation Act (Qld), s 27B
Australian Consumer Law (Qld), s 18, s 29, s 60, s 236, s 267
Civil Liability Act 2003 (Qld), s 4, s 9, s 10, s 11, s 23, s 28, Schedule 2
Competition and Consumer Act 2010 (Cth), s 139G, Schedule 2Fair Trading Act 1989 (Qld), s 16, s 19, s 20, s 50, s 50A
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 9, s 11, s 12, s 13, s 28, Schedule 3
BJB v Acting Deputy Commissioner Wright & CCC [2021] QCAT 448
Briginshaw v Briginshaw (1938) 60 CLR 336
Brookfield Multiplex v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185
Bryan v Maloney (1995) 182 CLR 609
CCP Australian Airships Ltd v Primus Telecommunications Pty Ltd [2004] VSCA 232
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
Farah Constructions Pty Ltd v Say-dee Pty Ltd (2007) 230 CLR 89
Hadley v Baxendale & Ors [1854] EWHC J70
Helyar v Civil and Development Consulting Pty Ltd (in liquidation) & Ors [2020] QCAT 465
Jackson v Cochrane [1989] 2 Qd. R 23
Jones v Dunkel (1959) 101 CLR 298
Kenxue Pty Ltd ATF The Susan Investment Trust v Westpro Finance Pty Ltd [2020] NSWSC 1146
Kimberly NZI Finance Ltd v Torero Pty Ltd (1989) ATPR (Digest) 46-054
Liao v LNG Properties Pty Ltd [2019] NSWSC 1846
Meandarra Aerial Spraying Pty Ltd & Anor v GEJ Geldard Pty Ltd [2012] QCA 315
Mousa & Anor v Vukobratich Enterprises Pty Ltd & Anor [2019] QSC 49
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66
Peng v Darley PropertiesPty Ltd (t/a L J Hooker Caboolture-Morayfield [2022] QCATA 45
Perry v Apand Pty Ltd (1999) 198 CLR 180
Presnia v Aknar (1996) 40 NSWLR 165
R v Filippa [2008] QSC 39
Wallace v Kam (2013) 250 CLR 375
Waterfront Investments Group (In liq) (2015) 105 ACSR 280
Woolcock Street Investments v CDG Pty Ltd (2004) 216 CLR 515
Wyong Shire Council v Shirt (1980) 146 CLR 40
Yorke v Lucas (1985) 61 ALR 307; [1985] HCA 65APPEARANCES & REPRESENTATION:
Applicant:
Bernadette Bromley, self-represented
Respondent:
Gregory Ward and CTJ Jewellery Pty Ltd, represented by Ms H Lilley of Counsel instructed by Lander and Rodgers and earlier represented by Mr S Trewavas of Counsel instructed by Australian Law Partners
REASONS FOR DECISION
Diamonds
This is a case about gemstone quality diamonds. In the celebrated words of fictional character James Bond 007 in a film of the same name, diamonds are forever. This perhaps is because they are the hardest naturally occurring mineral of pure carbon known to humankind,[1] often sought after for intrinsic value and sometimes, as in this case, symbolic of human love and affection.
[1]
A forensic understanding of the commodity is helpful. Internationally renowned jewellers Tiffany & Co. explain the characteristics and features of gemstone diamonds in their Guide to Diamonds:[2]
[2]About which I have informed myself by Google search and to which I may have regard independently of the parties by section 28(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The Respondents’ expert has also referred to the 4 C’s in evidence to which I will refer later.
Characteristics
Every diamond, like a human fingerprint, has certain distinguishing characteristics. The 4Cs – colour, clarity, cut and carat weight – are the globally accepted standards for assessing the quality of a diamond. Cut is determined by how a diamond’s facets interact with light, determined by symmetry, proportion and polish. Clarity is a measure of the purity and rarity of the stone, graded by the visibility of these characteristics under 10 – power magnification. A diamond is flawless if no inclusions (internal flaws) and no blemishes (external imperfections) are visible. Colour reflects the natural tint inherent in white diamonds, in nature most white diamonds have a slight tint of yellow but the closer to being “colourless” a diamond is, the rarer it is. Carat denotes the weight of a diamond, one carat denoting .20 grams.
Diamond Clarity Chart:
FL diamonds are Flawless; IF diamonds are internally Flawless; VVS1 VVS2 – VVS diamonds (1 and 2) are Very, Very Slightly Included. VS1 VS2 – VS diamonds (1 and 2) are Very Slightly Included. SI1 SI2 – SI diamonds (1 and 2) are Slightly Included; I1 I2 I3 – I diamonds (1, 2 and 3) are Imperfect. …
Does Diamond Colour Matter?
Colour is the second most important of the 4Cs because the colour grade directly affects the stone’s appearance. Diamonds with a poor colour grade can appear slightly yellow instead of the desired brilliant white. … The Tiffany Gemmological Laboratory will not accept stones exhibiting strong or excessive fluorescence, which, in natural lighting, can give diamonds a milky appearance.
What Is Diamond Colour?
The industry standard for grading colour is to evaluate each stone against a master set and assign a letter from “D” (colourless) to “Z” (light yellow): D E F - Colourless, G H I J - Near Colourless, K L M - Faint Yellow, N O P Q R - Very Light Yellow, S T U V W X Y Z - Light Yellow.
Fancy colour diamonds have their own colour grades.
Claim
In an Application for minor civil dispute – consumer dispute filed with the Tribunal at Southport on 15 January 2021, Bernadette Bromley sues Gregory Ward, then sole director of the other Respondent CTJ Jewellery Pty Ltd (CTJ), and CTJ, which carries on business as a manufacturing jeweller, wholesaler, and retailer, for the loss of her diamonds.
Mrs Bromley wants the Tribunal to order their return. In the alternative, she claims compensation in the amount of $23,200 for twelve (12) unreturned small diamonds and the loss of her solitaire engagement diamond which she says was substituted with a lesser quality brown diamond whilst in the custody of CTJ in early 2020 for resetting in new jewellery.
Defence
Mr Ward denies the alleged diamond loss and substitution and asks the Tribunal to dismiss Mrs Bromley’s claim for the following reasons:
(a)First, he says that he is not the correct Respondent, rather, his company CTJ (alone) is.
(b)Second, he says that there is no reliable evidence of the exact quantity, type, or quality of diamonds alleged to have been taken in and not returned.
(c)Third, he says that he did not interfere with, or take, Mrs Bromley’s diamonds.
(d)Fourth, he says that Mrs Bromley signed a CTJ docket acknowledging that she and her husband received back “all (the) stones from CTJ Jewellery Pty Ltd” when they collected them in May 2020.[3]
[3]Response dated 8 April 2021, paragraph 71.
CTJ, subsequently joined as a Respondent, defends the claim on the same basis as Mr Ward. Neither they, nor their solicitors and Counsel, assert or submitted that CTJ is not a trader as defined in Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act). Implicitly, in both Mrs Bromley’s claim and in the Response of Mr Ward, and expressly in some of their evidence, each side accuses the other of bad faith, dishonesty, and fraud.
Issues
The issues are as follows:
(a)What were the terms of the contract between Mrs Bromley and CTJ?
(b)What diamonds did Mrs Bromley deliver to CTJ in February 2020?
(c)What diamonds did she receive back in May 2020?
(d)What were the diamonds in question worth?
(e)Did CTJ breach the contract with Mrs Bromley in not returning some diamonds?
(f)Did CTJ breach any statutory prohibition or guarantee/s implied by the Australian Consumer Law (Qld) (the ACL)?
(g)Dishonestly or not, was Mr Ward involved in a breach of any statutory prohibition and guarantee/s?
(h)Should Mr Ward be held personally liable to Mrs Bromley accordingly?
(i)Was Mrs Bromley a vulnerable person when contracting with CTJ?
(j)Did CTJ and/or Mr Ward owe Mrs Bromley a duty of care to keep her diamonds safely and securely whilst in CTJ’s possession?
(k)Was CTJ negligent in handling Mrs Bromley’s diamonds?
(l)Was Mr Ward negligent in failing to prescribe, implement, and ensure, the administration of, a CTJ protocol for safe custody and return of customers on hold jewellery, including Mrs Bromley’s diamonds?
(m)Compensation, in the event of liability.
Onus
Parties in civil proceedings in the Tribunal bear the onus or burden of proving their allegations on the balance of probabilities. It remains with the party making the allegation throughout,[4] except, that is, where Statute[5] or the common law[6] provides otherwise. At common law, a bailee bears the onus, sometimes called a reverse onus, to prove appropriate steps were taken to protect the security of bailed property. Where dishonesty or fraud is alleged and either challenged or not admitted, proof of the allegation on the balance of probabilities according to the Briginshaw[7] standard of reasonable satisfaction is required, which Sir Owen Dixon explained as follows:[8]
The truth is that, when the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an 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. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
[4]See BJB v Acting Deputy Commissioner Wright & CCC [2021] QCAT 448 at [18] citing R v Filippa [2008] QSC 39 at [5].
[5]For example, though not applicable in the present case, section 29(2) of the Australian Consumer Law (Qld).
[6]In the bailment context, see Jackson v Cochrane [1989] 2 Qd. R 23
[7]Briginshaw v Briginshaw (1938) 60 CLR 336.
[8] Ibid, at 361 - 362.
The High Court in Neat Holdings has more recently said that “the strength of evidence necessary to establish facts on the balance of probabilities varies according to the nature of what is to be proved.”[9] This accommodates the explanation in Briginshaw.
[9]Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66.
Counsel for Mr Ward and CTJ submitted that Mrs Bromley must prove her case on the balance of probabilities according to the Briginshaw standard. Insofar as allegations of fraud and dishonesty are concerned, that is undoubtedly correct, and it follows where they allege or imply fraud or dishonesty on Mrs Bromley’s part that Mr Ward and CTJ must likewise prove those allegations to the same standard. However, allegations of fraud or dishonesty aside, all that Mrs Bromley need establish on the bare balance of probabilities for success is the loss of her diamonds due to breach of contract and/or breach of a duty of care, whether statutory or under the common law, or a breach of consumer protections, because she has not claimed exemplary or punitive damages for fraud or dishonesty.
Because intent, fraud, or dishonesty, are not essential prerequisites for liability in any of the following instances, Mrs Bromley need only establish against Mr Ward that he was involved in conduct of CTJ which on the bare balance of probabilities contravened the following provisions of the Australian Consumer Law (Qld) (the ACL).
(a)Chapter 2 (General Protections) and the prohibition in Part 2-1, section 18, against misleading or deceptive conduct; or
(b)Chapter 3 (Specific protections) and the prohibition in Part 3-1 (Unfair practices) in Division 1, section 29 against false or misleading representations about goods or services.
Chapter 3 (Specific protections) Part 3-2 (Consumer transactions) Subdivision B (Guarantees relating to the supply of services) and the guarantee in section 60 that services will be rendered with due care and skill.
(the ACL provisions)
Put another way, intent, fraud, or dishonesty, are not essential prerequisites for establishing liability of a trader to a consumer or for establishing accessorial liability to a consumer of a person involved in a breach by a trader of sections 18 and 29 and breach of the guarantee of due care and skill under 60 of the ACL, though sometimes they may be ingredients.[10] Overreach in making unsubstantiated allegations of fraud and dishonesty, though undesirable, is not of itself fatal.
[10]Cf liability for unconscionable conduct or dealing where dishonest or fraudulent behaviour is a requirement - per Black J in Waterfront Investments Group (In liq) (2015) 105 ACSR 280 citing Farah Constructions Pty Ltd v Say-dee Pty Ltd (2007) 230 CLR 89.
Undisputed Facts
Mrs Bromley was first a retail customer of CTJ in February 2011 without incident.[11] In February 2020, she and her husband Mark Bromley returned to the CTJ shop on the Gold Coast. She handed over, to sales manager Ms Leanne Amor, various items of jewellery and diamonds belonging to her. Mrs Bromley’s rings had recently been surgically removed from her arthritically swollen fingers which is why she wanted a new ring made up using her diamonds. She instructed that the diamonds in her jewellery be unset and reset in the new ring to be designed and manufactured by CTJ. Nathan McMahon, one of two CTJ Jewellers at the time, unset the diamonds and Ms Amor, in consultation with Mr Ward also present, noted the quantity and dimension of the unset diamonds. An Indian designer, “cadded”[12] the proposed new design to incorporate Mrs Bromley’s diamonds and Ms Amor provided the illustration to Mrs Bromley for approval but the new ring never materialised because Mrs Bromley changed her mind and instructed Ms Amor not to complete the project.
[11]See exhibit GW4 to the affidavit of Gregory Ward sworn 31 August 2021.
[12]Using CAD (computer- aided design) computer software.
Together with her husband, Mrs Bromley met with Mr Ward at the CTJ shop on 12 May 2020 to retrieve her jewellery and the unset and loose diamonds. Ms Amor was absent. Mr Ward had stood her down on pandemic leave in March 2020. He produced various packets of jewellery. They signed a receipt and left the shop with the packets in Mrs Bromley’s handbag but returned in an agitated state several hours later the same afternoon after seeing another jeweller. A verbal altercation ensued. Mr Bromley, a former Victorian policeman, cautioned Mr Ward. Mrs Bromley demanded the return of twelve small diamonds and the large solitaire engagement diamond which she and her husband said were missing. After heated discussion, Mr and Mrs Bromley left the premises a second time. Mr Ward reported the altercation to the police. The next day, Mrs Bromley made a criminal complaint against Mr Ward and CTJ to the police concerning her missing diamonds. Investigations were inconclusive. The police closed the docket. [Redacted]. The innuendo is that Mr Bromley conspired with Mrs Bromley to defraud them.
Preliminary Findings
I find as follows on the undisputed facts:
(a)The contract between Mrs Bromley was one between her as consumer and CTJ as trader for the supply of goods, a new manufactured ring set with Mrs Bromley’s unset diamonds, and services involving the process of doing so in trade and commerce, though her claim relates to the services.
(b)Sections, 18, 29, and 60, read with other relevant sections of the ACL to which I will refer later, applied for Mrs Bromley’s protection.
(c)The services included identifying and un-setting Mrs Bromley’s diamonds from her jewellery and designing the new ring, as occurred, and the prospective re-setting of some of the diamonds in the elaborate new ring (or good) once manufactured, which did not occur because Mrs Bromley changed her mind and did not proceed past the design stage.
(d)Implicitly for commercial efficacy, alternatively so obvious that it goes without saying, the services to be provided included CTJ keeping the rings and diamonds safe and secure whilst in the company’s possession.
(e)CTJ was contractually obliged to return Mrs Bromley’s diamonds and jewellery in one form or another in due course as instructed by Mrs Bromley. The contract had an element of bailment[13] and the services to be rendered included the safe return of her rings and diamonds to her in due course.
[13]Delivery of goods for improvement for reward and safe return in due course.
Evidence
Careful consideration of the evidence is necessary because assessment of witness credibility is pivotal to findings on contested facts and legal liability[14] and the outcome will inevitably have reputational consequences. There is also an insurance dimension for the Respondents. In ascertaining where the truth lies, I must decide whose evidence I prefer and who may be liable. I am required to give adequate reasons for my findings. That is no straightforward exercise permitting a truncated judgment in this case.
[14]See the requirements of s. 27B of the Acts Interpretation Act 1954 (Qld).
Mrs Bromley
In oral evidence on 8 April 2021, Mrs Bromley swore to the truth[15] of the content of the Form 1 Application and attachment (the attachment) filed on 15 January 2021, in which Mrs Bromley said that Mr Bromley gave her a solitaire diamond engagement ring in 1990, for which she received a valuation for it in 1999. Exhibit RX to the attachment is the certificate of valuation of it and related jewellery dated 6 August 1999 by A.J. Walsh. F.G.A.A. DIP.D.T. RV142 of Robt. H. Parker & Sons Pty Ltd, Manufacturing Jewellers, Registered Gemmologists, Valuations, of Melbourne, certifying in his opinion the replacement value for insurance purposes of the property of Mr and Mrs Bromley in the following terms:
1.Engagement ring, claw set with 1 brilliant cut diamond, made in 18ct yellow gold: 0.80ct. - $8,975.00.
2.Eternity ring, claw set with 5 brilliant cut diamonds made in 18ct yellow gold
TOTAL WEIGHT OF DIAMONDS: 5 = 0.53ct.
COLOUR: G
CLARITY: VS - $2,570.00.
TOTAL VALUE: $11,545.00.
[15]Transcript 8 April 2021, T1-7, lines 1 to 10.
Subsequently, Mrs Bromley obtained valuations for other jewellery acquired by her from time to time. Exhibit SX to the attachment is a Valuation Certificate by John A Poirrier FGAA (Reg. No. 105) of Accord Valuation Services dated 31 March 2005 valuing the “below mentioned goods … the property of Bernadette Bromley” (described by Mrs Bromley as her family ring) for retail replacement (Valuation No. 262900) in the following terms:
Cast and hand assembled yellow and white gold diamond ring with a 2.3mm half round shank and pointed flow up shoulders each side of a curved white gold claw mount set with four 0.25ct brilliant cut diamonds colour “H” and clarity “SI”. The ring is stamped 18ct and weighs 4.9gms. - $5,125.00
Exhibit TX to the attachment is a Certificate of Authenticity dated 25 July 2017 from Michael Hill Jewellers subsequently certifying a retail price of $1,699.00 for a 10YW 1 CTDW P.B. DBL ROW CLAW RING. Mrs Bromley referred to this as her “comfort ring”.
Mr and Mrs Bromley took her engagement ring and other jewellery to several Gold Coast jewellers in early 2020, looking to have the diamonds extracted from the jewellery with some to be set in a new ring incorporating the engagement ring diamond as the centrepiece. Examination of the engagement ring diamond by several jewellers under magnification revealed a unique line on the top that extended from the centre of the engagement ring diamond to the edge, described as a “fracture” or “wisp”. Ms Amor examined Mrs Bromley’s diamond under magnification and said that it had a 5.9 mm diameter spread, that it was brilliant white, and that it had a “fracture” from the centre to the edge but no other visible flaws. Mr Ward, CTJ’s owner, present with Ms Amor at the time, discussed with Mrs Bromley having a new ring with a hinge for her swollen finger, which he measured.
Mrs Bromley instructed CTJ to commence work. She gave Ms Amor eleven loose pieces of yellow gold items of jewellery which Ms Amor photocopied, giving a copy (exhibit AX to the attachment) to Mrs Bromley. Mrs Bromley says that the photocopy “described” the items of jewellery.[16] By reference to exhibit AX, Mrs Bromley said that the items of jewellery depicted in exhibit AX comprised:
[16]The photocopy did not contain words or measurements.
(a)Heart Shaped Locket – no diamonds.
(b)Eternity Ring – 5 x 3.1mm sized Diamonds of “G’ Colour and “VS” Clarity.
(c)Gold Pendant – 3 x 3.5mm sized Diamonds of unassessed Colour/Clarity.
(d)Mums Ring – 40 x < 2mm sized Diamonds.
(e)Engagement Ring – 1 x 5.96mm sized Diamond of “G” Colour and “VS” Clarity fused with Family Ring – 4 x 4.12mm sized Diamonds of “H” Colour and “SI” Clarity.
(f)2 x Ear Studs – 64 x < 2mm sized Diamonds.
(g)Comfort Ring – 1 x 3.1mm sized Diamond, 2 x 2.9mm sized Diamonds, 1 x 2.6mm sized Diamond, 14 x 2.3mm sized Diamonds.
(h)Happy Ring – 21 x < 2mm sized Diamonds.
(i)Queens Ring – 8 x 2.7mm sized Diamonds, 44 x < 2mm sized Diamonds.
(j)Wave Ring – 38 x < 2mm sized Diamonds.
Ms Amor printed off a Tax Invoice/Receipt when Mrs Bromley handed over the jewellery. It is exhibited BX to Mrs Bromley’s statement and is dated 13 February 2020,[17] generated at 10:56 AM. It refers to the repair intake and to the customer’s instruction to unset all diamonds to create a “new design in 18 CT Yellow and White Gold with Hinge/Trade Gold Weight.” Mrs Bromley left Ms Amor with 39 diamonds of 2.3mm or greater and 207 diamonds less than 2mm in size, in total 246 diamonds, together with her jewellery. Exhibit NX is a copy of a photograph taken in November 1999 of the diamond rings worn by Mrs Bromley. She described them in evidence as: (Top) 4 x diamonds set in her family ring; 1x diamond Solitaire ring set in her engagement ring; 5 x diamonds set in her eternity ring; and (Bottom) 18 x diamonds set in her comfort ring. Exhibit OX is a copy of a photograph taken in January 2020 showing her loose diamond rings: (Top) Family ring and engagement ring as fused together; comfort ring; 3 x diamond rings set in her gold pendant; and (Bottom) eternity ring.
[17]Cf 17 February 2020 as the date of the meeting referred to by Mrs Bromley.
Mrs Bromley says that Ms Amor catalogued the extraction of the diamonds at CTJ Jewellery in the document marked exhibit CX which is a “Day Planner” page noting in Ms Amor’s handwriting the sizes and quantities of diamonds as: 5.9 x 1, 4.01 x 4, 3.5 x 3, 3.1 x 6, 2.9 x 2, 2.7 x 8, 2.6 x 1 and 2.3 x 14, total 39 diamonds. She recognised Ms Amor’s handwriting of the size and quantity of each individually sized diamond on the front of small plastic bags containing them. Ms Amor placed diamonds smaller than 2mm in diameter into unmarked smaller plastic bags and placed the Day Planner note and the marked and unmarked bags of diamonds into a larger plastic packet which she sealed and placed “in a locked drawer under the counter”. Exhibit DX to the attachment is an information table which Mrs Bromley says Ms Amor sent to her and her husband. It detailed the diameter of her engagement ring diamond as 5.96mm. See item 6 of the diamond “S” information. The table included the description of the diamonds to be incorporated in the ring, namely: 5.96 x 1, 4.12 x 2, 3.5 x 2, 3.1 x 2, 2.9 x 2, 2.7 x 2, 1.7 x 48 and 1.6 x 10. Ms Amor rang Mark Bromley on 10 March 2020 and asked for payment of $480.00 for design work. Mr Bromley paid it over the phone by debit against Mastercard.
When Mr and Mrs Bromley attended Mr Ward on 12 May 2020 to collect her jewellery, Mr Ward seemed to Mrs Bromley to be surprised and hesitated, unlocked a drawer under the counter, looked at the content for a brief moment, closed and locked the drawer, stepped back towards the register, returned to the drawer and again unlocked it, removed a plastic bag (a photocopy of which is exhibit EX), which appeared to contain some papers and Ms Amor’s “reconciliation count” and other bags, removed the papers, and placed them on the counter. Mr Ward asked if any money was owing and Mr Bromley replied that he had paid for the design work. Mr Ward picked the bags up off the counter, turned away to the register, turned back to the counter, put a Tax Invoice/Receipt in front of Mr Bromley, passed a pen to him, said “that shows your payment for the CAD (Computer Aided Design) just sign next to Customer to sign” and invited Mr Bromley to take a photograph, which he did. The photograph of the receipt is exhibit FX and shows that Mr Bromley signed it. On it was written “Client picked up rings”. Mr Ward then placed the customer copy of the Tax Invoice/Receipt in the plastic bag and removed two packaged items from it. One was an individual press sealed plastic bag with a Woolworths Select logo on it with printed words next to which was written “18K 12.18gm” and “9-10k 26.18” and inside the bag were the jewellery items belonging to Mrs Bromley from which the diamonds had been extracted. Exhibit HX is a copy of a photograph confirming this. The jewellery items that were originally photographed by Ms Amor in exhibit AX are visible. The other item removed by Mr Ward was a bundle of sealed plastic bags, held together with an elastic band, containing diamonds. Mr Ward removed the elastic band and laid the plastic bags out next to the bag of jewellery “like a croupier dealing cards” with some bags on top of others. Mrs Bromley asked him if her engagement diamond was there. Mr Ward shuffled the bags and pointed to one marked “5.9 x l”, a copy of a photograph of which is marked “IX”.
Mrs Bromley says that she and her husband could see a diamond of relatively large size to the others in the sealed plastic bags, some of which were obscured, and some that were observable had numbers written on them. None of the bags of diamonds were unsealed or opened. Mrs Bromley says that no count of the contents was conducted or offered. There were other customers lined up behind Mr and Mrs Bromley, in whose direction Mr Ward kept looking. He picked up the bags, which included five plastic press sealed bags with handwritten numbers marked on them, placed them with seven smaller unmarked bags (see exhibit KX) and placed the elastic band around the package which he then put inside a “three striped” bag which he handed to Mrs Bromley. Mr and Mrs Bromley left the shop and took the sealed bag and contents to another jeweller, Trent Giltrap of The Diamond Vault. Mr Giltrap had previously examined Mrs Bromley’s solitaire diamond engagement ring. She wanted him to take over the job of redesigning and creating a new ring. Mrs Bromley placed the three-striped plastic bag on the counter, opened it, removed the separate bags in front of Mr Giltrap, and handed the bag marked “5.9 x 1” to him to discuss the arrangement. He opened the bag and said: “sorry I think that I have some bad news for you”. He opened his loop and said: “This is not your diamond, this is quite brown, definitely not white and nowhere near your colour” and that there was a black spot on the underside of the diamond and no “wisp” line on the top. He measured it at 5.7mm and told Mrs Bromley that it was of much lesser value than her engagement ring diamond. Attention then turned to the other bags of diamonds.
Exhibit UX to the attachment to Mrs Bromley’s application is a Certificate of Valuation of Kym Hughes F.G., F.G.A.A, Dip D.T. Dip Val (NCJV Registered Valuer Reg Q151 Diploma of Applied Gemmology (Valuation) Diploma of Diamond Technology, Gemmologist) dated 25 May 2020 on behalf of Symmetry Jewellery Valuation Specialists for Mrs Bromley, valuing one loose diamond, Cut – round brilliant, Spread – 5.79 – 5.76mm, Depth – 3.49mm, Colour – K/L (brown tint), Fluorescence – strong blue, Clarity – S12, Girdle – thick bruted, Weight = 0.79cts., at $4,400.00. Exhibit QX to the attachment is a letter dated 1 August 2020 from Trent Giltrap of Diamond Vault GC addressed “To whom it may concern” stating the following:
This letter is to confirm that Mr Bromley brought his (sic) rings into the Diamond Vault for consultation of remodelling and the diamond that was brought in while mounted in the ring is not the same diamond he currently has loose. The diamond I viewed during the consultation was a minimum H colour and had a wisp running through the table of the diamond and the loose diamond he currently has does not have the same markings.
Mrs Bromley removed Ms Amor’s reconciliation note from the larger plastic bag in Mr Giltrap’s presence. After matching the other bags with the note, she discovered that several other diamonds were missing as well: 4.01 x 4, 3.1 x 6, and 2.9 x 2. She said that her engagement diamond had been “switched” and the 12 smaller diamonds were missing. Mrs Bromley said[18] that the 12 missing diamonds comprised:
(a)4 x 4.1 mm sized 0.25ct diamonds of H colour, SI clarity taken from her Family Ring (Accord 31 March 2005 – valuation $5,125.00).
(b)6 x 3.1 mm sized diamonds of G colour VS clarity of which 5 (5 = 0.53ct) were taken from her Eternity Ring (Parker and Sons 6 August 1999 – valuation $2,570.00) and 1 from her Queens Ring.
(c)2 x 2.9 mm sized diamonds of undetermined colour and clarity taken from her Comfort Ring (Symmetry 25 September 2020 – valuation $505.00).
[18]See the last typed page of the attachment to the Application, under the heading “Brief of Actions”.
Mrs Bromley said she gathered up all the bags and contents and returned to confront Mr Ward. He said he had checked off and counted out all the diamonds before they left the store. A lengthy account of subsequent discussions appears in paragraphs 103 to 151 of the attachment, which it is not necessary to repeat here. Having left the CTJ shop a second time, Mr and Mrs Bromley then telephoned Ms Amor. She told them that the diamond from Mrs Bromley’s engagement ring was brilliant white with a fracture on top, not brown, and said that Mr Ward took possession of the engagement ring and other diamonds from Ms Amor when she was put on leave. The next day, Mrs Bromley reported her diamond loss to the police. Mr Ward sent Mr and Mrs Bromley a without prejudice letter dated 14 May 2020 (see exhibit LX). It did not contain a settlement offer but referred to an investigation and said that Mr Ward was waiting on an answer from one of his jewellers who was working there and “may of (sic) mixed yours and our stock after un-setting the stones, which you say are missing.”
In that letter to Mrs Bromley, Mr Ward said:
If there was a mistake, that is why I laid out all the packets (sic) in front of you so you could (sic) inspect, so we were all on the same page when you left, that you had inspected and were happy. I presumed (sic) we were and you signed off and left the store, that was all ok by you, you had all the rights (sic) to look at each of the stones and inspect instore before you left.
….
When we have finalized all of the avenues, looked at all the footage, we will get back to you.
….
I do remind you that your description of your G VVS with a white line across the stone makes that stone a i1 stone that is under a Si2 clarity. You have not seen the stone outside of the ring for 20 years I believe? so (sic) before accusing us maybe the person or persons who sold you the stone, may be what you call dishonest.
In June 2020, Mrs Bromley noticed a page on CTJ’s website. A copy is marked PX. Under the heading “Frequently Asked Questions”, CTJ asked “When I leave my jewellery for repair, how will I know I’m getting back the same diamond, or gemstone?” On the same page, CTJ answered the question thus:
For over 18 years CTJ has been earning the trust of our customers through outstanding service and exacting attention to detail, including a stringent protocol for accepting jewellery for repair. During our “take in” procedure, we will examine your diamond or gemstone under a 10 x loop and you’ll be invited to look also, so you can see what’s unique about your jewellery. We’ll then note any special characteristics of your diamond or gemstone right on the repair envelope and give you a copy for reference. Repairs are performed on-site so your jewellery never leaves our store. When you return to pick up your jewellery, we’ll re-examine it under a loop with you and review the notations and characteristics of your diamond or gemstone. Recognising what’s unique about your jewellery, you’ll be assured that this is the same piece you left in our care.
(the CTJ protocol)[19]
[19]My term for it.
Exhibit VX to the attachment is a letter dated 14 September 2020 from Kym Hughes (whose qualifications are also referred to in Exhibit UX) estimating, sight unseen for retail purposes, the retail replacement value of one loose round brilliant cut diamond, Diameter – 5.96mm, Colour – G, Clarity – VS, Weight = 0.80cts, at $15,000.00 to $13,000.00 (based on given specifications) with the following qualification:
The estimated value of a diamond with the above specifications would vary because of the following factors – how well the diamond is cut, if the diamond is fluorescent, if the diamond has an internationally recognised laboratory certification and if the clarity is VS1 or VS2. Because of these variables I have given a range for the value. This value is for retail replacement.
In oral evidence on 8 April 2021, Mrs Bromley said:
So we went in on that day. We would have been there a good hour if not longer. When they did look at – my diam(ond) – and especially Leanne Amor, his shop assistant, she looked at it seeing it was a very white lovely diamond and she could see a little wisp in it, is what she called it. A little wisp which is a little line that went across it which you couldn’t see with the – with the naked eye. You had to look through the loupe and they were both inspecting everything and then she took all my diamonds and she put them all on the photocopier and she photocopied them all. And – and I said, “Can I trust you with my diamonds?” And she said, “That’s what we do here. That’s what we do.” And then, as I said, we were there a long time. Mr Ward came over and measured my finger and looked at the diamonds and explained about his – yes – no.[20]
[20]Transcript 8 April 2021, T1-7, lines 28 to 38.
Mrs Bromley said that all she wanted was her 30-year engagement ring back on her finger and that: “My diamond that we chose 30 years ago. I’ve never taken it off. As you can see, I still have the dint and … that’s all I wanted.”[21] She referred to a certificate of A.J. Walsh of Robert. H. Parker & Sons Pty Ltd, dated 7 April 2021, received that morning, which she tendered in evidence. It is marked Exhibit A1. Omitting header and signature, that certificate reads as follows:
[21]Ibid, T1-34, lines 5 to 9.
THIS IS TO CERTIFY THAT THE GIVEN FIGURES FOR THE ARTICLES MENTIONED BELOW REPRESENT IN MY OPINION THE REPLACEMENT VALUE FOR EQUIVELANT OF SIMILAR PIECES FOR INSURANCE PURPOSES DEPENDING ON AVAILABILITY.
TO THE PROPERTY OF: Mr and Mrs Bromley
1.Engagement ring, claw set with one brilliant cut diamond made in 18ct yellow gold.
TOTAL DIAMOND WEIGHT: 0.80ct. Diamond: $12,800.00 Ring: $1,400.00.
2.Eternity ring, claw set with five brilliant cut diamonds made in 18 ct yellow gold
TOTAL WEIGHT OF DIAMONDS: 5 = 0.53 ct.
COLOUR/CLARITY: G/VS. Diamonds” $1,590.00 Ring: $1,550.00.
These prices are based on valuation dated 6th August 1999 to reflect current values, 0.80ct diamond based on G colour and VS clarity as would have been according to value from 1999.
TOTAL VALUE: $17,340.00.
Seventeen thousand, three hundred and forty dollars
Gold at $1,743.21 USD p/oz Exchange rate at $0.7665 USD
[It is convenient here to note Ms Duffield’s evidence about Exhibit RX attached to Mrs Bromley’s statement, the original valuation by A.J. Walsh dated 6 August 1999. She said that it and Exhibit “A1” were: “Exactly the same. Doesn’t have any description”[22] (of the diamonds) and that Mr Ward said that as with Exhibit RX: “Again, it doesn’t say anything about the size, colour, clarity of the diamond.”[23]]
[22]Ibid, T1-36, line 24.
[23]Ibid, lines 39 to 40.
Cross-examination of Mrs Bromley
Under cross examination by Counsel for the Respondents on 15 September 2021, Mrs Bromley said that:
(a)Mr Ward did not open any of the bags of diamonds when she picked them up from the store;[24]
(b)she trusted him that she was getting everything back;[25]
(c)the wisp in her engagement diamond was not visible to the naked eye but only through a loupe;[26]
(d)when she brought the diamond back, Mr Ward identified it as lightish brown without looking at it through the loupe;[27]
(e)hers was not a brown diamond;[28]
(f)Mr Ward was with Ms Amor (Leanne) when she gave the diamonds to her and they both looked at it (the engagement diamond) through the loupe;[29]
(g)twelve diamonds were missing;[30]
(h)she knew of the sizing because of other paperwork received from CTJ;[31]
(i)the bags weren’t opened on the journey between stores;[32]
(j)they were all in her bag.[33]
[24]Transcript 15 September 2021, T1-20, lines 1 to 32.
[25]Ibid, lines 35 to 42.
[26]Ibid, lines 44 to 48.
[27]T1-21, lines 1-16.
[28]Ibid, lines 20 to 24.
[29]T1-22, lines 16 to 29.
[30]T1-23, lines 3 to 10.
[31]Ibid, lines 11 to 12.
[32]Ibid, lines 36 to 44.
[33]T1-23, lines 44 to 46 and T1-24, lines 1to 2.
Counsel for Mr Ward and CTJ did not put to Mrs Bromley that her claim was made dishonestly or that she had conspired with her husband Mark Bromley to defraud them.
Mrs Bromley’s self-re-examination
In self re-examination, Mrs Bromley referred to exhibit DX accompanying the attachment to her application showing where her diamonds were going in the new ring and another of their lists.[34] She said the crossed ones were missing, so “that’s how we knew what were missing and what sizes”.[35]
[34]T1-25, lines 9 to 20.
[35]Ibid, lines 14 to 17 and see exhibit CX, the crosses apparently written on the list by Mrs Bromley.
Additional documentary evidence tendered by Mrs Bromley
Exhibit “A5” is a letter “To Whom It May Concern” from Diamond Vault GC (Mr Trent Giltrap identified in exhibit QX referred to in Mrs Bromley’s sworn evidence) tendered by Mrs Bromley at the hearing on 30 April 2021 stating:
The Diamond Vault GC received a telephone call from Mr Greg Ward to question the clarity of the centre diamond in question in which I replied that we hadn’t gone too (sic) in depth other than it was eye clean, I was basically filled in by Mr Ward as to the situation and was asked to put something in writing as he said us jewellers need to stick together.
Mrs Bromley told the Tribunal that Mr Ward had contacted one of her witnesses, another (this) jeweller.[36] [It is convenient to note here that Mr Ward said that he did contact him yesterday[37] and – “I was asked to put something in writing [indistinct] stick together. There’s a lot of people who say a lot of things. That doesn’t mean anything, your Honour, anyway. There, I read it.”[38]]
[36]Transcript 30 April 2021, T1-20, lines 1 to 10.
[37]Ibid, line 12.
[38]Ibid, lines 33 to 35.
Ms Amor
Leanne Amor attended the hearing on 15 September 2021 by telephone under Notice to witness to attend to give evidence issued by the Tribunal at Mrs Bromley’s request and served. Under affirmation, Ms Amor said she sent an email to Mr Ward on 12 May 2020 after a call from Mrs Bromley.[39] She said the content of the email was true and correct.[40] Mrs Bromley asked Ms Amor about that email[41] and put to Ms Amor that she said the following to Mr Ward in it:
As you would know, we were doing a CAD design to fit the diamonds. You assisted me with this job and measured all the diamonds out for the CAD. I believe some of the diamonds were used to put into the bangle we made upon your request and approval, as we didn’t have them in stock at the time. I trust that you would remember doing this as we needed the bangle completed by deadline and this was the quickest way.[42]
[39]Transcript 15 September 2021, T1-63, lines 28 to 46.
[40]Ibid, lines 29 to 30.
[41]T1-71, lines 10 to 47 and T1-72 at lines 1 to 2.
[42]For the complete text, see exhibit A3 filed on 30 April 2021.
Mrs Bromley asked Ms Amor to expand on this and Ms Amor said:
Bernadette, with the bangle, it was a very similar design to the ring we had CAD-ed up for you. There were specific diamond sizes in the bangle that we needed to get the job done urgently, and I recall Nathan coming to me, saying that we didn’t have the 4.1 mil diamonds that needed to go into this bangle, and we wouldn’t have had the time to order them in, in time to have the bangle ready for pick up. So, Greg agreed to use some of your diamonds, the smaller ones, that were in your job packet to get the job finished, and he said he was going to replace the diamonds.[43]
[43]Transcript 15 September 2021, T1-71, lines 23 to 30.
Ms Amor had received an email from Mr Ward on 13 May 2020[44] which read as follows:
Hi Leanne we have had 4mm stones in stock for 6 months as we use these for earing studs. They claim there are several stones in packets that are missing …. Do you know or remember anything about those as I do not. Mark came into the store with Bernadette and I gave them everything that was in the packet and checked every packet off in front of them. Mark signed off on receiving them and off they went. …..
Mark is also an accused fraudster etc. … They were certain their 80pt was a G vvs as it had a big white line across the centre, that was both of their words. I then said a vvs stone you need a microscope to see an inclusion. I placed all the stones out in front of them and they signed off on the whole lot, they went to someone it seems who told them that their stone is not what they had.
So my question is are they accusing you of switching their 80pt diamond? Because we don’t (sic) have any reason to touch their packet and switch diamonds. All of this is not what it seems and very disturbing. …..
It is situations like these and others (sic) that we will enforce stricter guidelines in all areas of the business. With regard with (sic) work we are still monitoring the situation with Judy (sic) and formulating new guidelines for staff moving forward.
[44]See Exhibit A1, so marked and filed on 15 September 2021, the second email in the thread.
Ms Amor replied by email to Mr Ward on 14 May 2020,[45] which she said in evidence was true and correct in content.[46] It read as follows.
Hi Greg, I trust that you received my text with the Bromley’s email address. I remember we had Nathan unset all the diamonds and separate (sic) them all in individual packets. I measured some of the bigger stones and some of the smaller ones so you and I could give the measurements to the cad department. I remember you measuring the diamonds also just to make sure I got the measurements right. As we know the cad design was changed a few times and then put on hold before Covid19 as Mark was considering purchasing a bigger stone for the centre. during (sic) this time, the job packet remained in the cad box awaiting a go ahead. Mark was advised of the extra charges for the cad changes. i (sic) believe we used some of their smaller stones to put into a diamond bangle and as i (sic) recall you said you would credit them or replace them. I told Mark that we are a reputable business and would not risk our reputation in doing what they are suggesting. You have obviously done your homework on Mark all good and well and it’s not a good situation at all. Bernadette phoned me today saying that she is not allowed to enter the store, otherwise you would call the police. I told her there would be no cause for us to retain any of her diamonds. Im (sic) sure the cameras will give you the answers you need moving forward.
The job packet was in the drawer with all of its contents prior to me being stood down. I hope this helps as its as much info as I can give you.
Regards
Leanne Amor.
[45]See Exhibit A2, so marked and filed on 15 September 2021.
[46]Transcript 15 September 2021, T1-64, lines 43 to 48 and T1-65 at lines 1 to 29.
When asked what the job packet contained, Ms Amor said “it obviously had Mrs Bromley’s jewellery, it would have had a receipt from the POS system in there, a photocopy of the ring she had left behind, and CAD images they were working on would all have gone in there, the diamonds would have been obviously all separated by the jeweller upstairs and put in separate packets and that would be the contents of the job packet. And it’s a sealed plastic bag, so sealed at the top, and everything pretty much stays together wherever it moves to, whether it’s in the workshop, or it goes on Greg’s desk, or it goes in the hold box, wherever it moves it all stays together.” When asked who the jeweller was, Ms Amor answered “Nathan McMahon”. I asked Ms Amor where the CAD box was kept. She said: “we used to keep (it) near the front door of the store in one of the drawers, and then we changed it to be in the safe”. When asked when the change was made, Ms Amor said “I guess after the situation happened … between the Bromleys and Greg.” She said that she placed the job packet in the hold box at the front of the store in a drawer at Mr Ward’s request and telephoned Mr Bromley to pick it up.[47]
[47]Ibid, T1-65 at lines 31 to 45 and T1-66 at lines 1 to 22.
Cross-examination of Ms Amor
Ms Amor gave the following evidence under cross examination by Counsel for Mr Ward and CTJ.[48] She said that putting one customer’s diamonds in a different customer’s jewellery had been done before,[49] that she is not a qualified jeweller;[50] that this was not appropriate behaviour;[51] that doing so would be dishonest;[52] that such a person would be disreputable;[53] that she would not agree to do it herself;[54] that she would not do it if asked;[55] but that:
I can assure you that it was okayed by Greg to use the diamonds from Mrs Bromley’s packet for an urgent job to complete.[56]
[48]Transcript 15 September 2021, T1-73 ff.
[49]T1-74, lines 15 to 18.
[50]T1-74, lines 4 to 5.
[51]Ibid, lines 25 to 29.
[52]Ibid, line 31.
[53]Ibid, lines 33 to 34.
[54]Ibid, lines 36 to 37.
[55]Ibid, lines 39 to 40.
[56]Ibid, lines 42 to 45.
In answer to a question of mine, Ms Amor said that Mr Ward okayed the use of Mrs Bromley’s diamonds in the jewellery of another customer without Mrs Bromley’s knowledge, to be replaced before pickup.[57] Upon further questioning by Counsel for CTJ and Mr Ward, Ms Amor said that she didn’t object to following Mr Ward’s instructions[58] because “when the boss tells you that something needs to be done on the effect of another job being urgently made, that’s what – that had to be done”.[59] On the other hand, Ms Amor admitted that she told the Bromleys that CTJ was a reputable company and admitted that “they came to the store upon trusting myself and me obviously giving good rapport to the business itself”.[60]
[57]T1-75, lines 1 to 9.
[58]Ibid, lines 12 to 14.
[59]Ibid, lines 15 to 18.
[60]Ibid, lines 20 to 23.
Ms Amor said that she believed that all the diamonds were in the packet to be picked up, but she actually wasn’t there doing the handover[61] and “I would have assumed (sic) that Greg would have replaced them before they were picking them up”[62] but that what she told the police was what Mrs Bromley brought in she picked up.[63] She said that the same sized diamonds could have been replaced from stock[64] and that Nathan was setting the other customer’s bangle with the small diamonds referred to in her email dated 14th May 2020.[65] She said that it did happen.[66] Ms Amor admitted that she had been in a dispute with CJT but said that it had nothing to do with the Bromley case which had no bearing on Ms Amor’s case.[67]
[61]Ibid, lines 27 to 30.
[62]Ibid, lines 33 to 35.
[63]Ibid, lines 40 to 41.
[64]T1-76, lines 1 to 4.
[65]Ibid, lines 6 to 9.
[66]Ibid, lines 21 to 23.
[67]Ibid, lines 25 to 38.
Re-examination of Ms Amor by Mrs Bromley
In re-examination by Mrs Bromley, Ms Amor said that she had never been under police investigation for stolen diamonds, jewellery, and money.[68] She said that an allegation by Ms Duffield that Ms Amor had opened and closed off accounts in her name with money in excess of $17,000 owing was not correct at all, that there never has been a police investigation and that she does not have a criminal record.[69]
[68]T1-77, lines 20 to 25.
[69]Ibid, lines 26 to 35 and lines 37 to 42.
Mr Ward
In oral evidence under affirmation on 8 April 2021, Mr Ward said that he is a salesman, not a jeweller;[70] Exhibit R2 produced to the Tribunal that day is a CAD design of the new ring for Mrs Bromley by the Indian company;[71] The items were given to the Indian company on the sheet of paper.[72]
[70]Transcript 8 April 2021, T1-26, lines 6 to 9.
[71]Ibid, T1-29, lines 19 to 24.
[72]Ibid, lines 41 to 45.
In his affidavit sworn on 31 August 2021, Mr Ward said the following. He resigned his directorship due to ill health, no other reason. He said that CTJ employed the following staff “relevant to these proceedings”: Jeweller Nathan McMahon between 2000 and 2021; Contract Jeweller Michael Mortensen from time to time over the last 18 years; Sales Assistant Jermaine Gulliver between 2003 and 2021; Leanne Amor as part time sales assistant between 2010 and 2015 and sales assistant from 2015 to 2020 when she left to New South Wales; Janet Roach as sales assistant between 2003 and 2020 and general manager from 2021; and Dianne Duffield as general manager between 2013 and 2021 who became director when he resigned.
Mr Ward said that they had a system in place for clients leaving jewellery for repair, resizing or re-modelling, involving computer data entry of their name and details, job description, quotation or estimate of cost, description of jewellery delivered for work to be performed, and a time frame for completion. The customer received a receipt and two additional copies retained went to the jeweller and the daily bundle of job reports. Jewellery delivered for remodelling would be photocopied for CTJ and the customer. Any gemstone distinguishing marks would be explained to the customer, including inclusions that might cleave or break a gemstone. Then, the jewellery would be placed in a plastic zip lockable sleeve with the receipt and instruction to the jeweller, then taken to the jeweller upstairs or placed in a sequentially marked plastic container in the fireproof two door combination lockable safe overnight when not with the jeweller.[73] Return of a customer’s jewellery involved asking the customer to inspect it and sign an acknowledgment of receipt.
[73]See paragraph 20 “if the customer’s jewellery is kept in the safe” and exhibit GW3 and GW3A; also, see paragraph 21 “if the jewellery is taken upstairs” but compare paragraph 52 in respect of customer’s goods on hold kept by CTJ in the “front drawers described by Mrs Bromley” that are never locked.
Mr Ward said that Mr and Mrs Bromley were customers in February 2011 when they asked CTJ to repair one 18carat yellow gold 5 stone diamond ring, replace claws and set a missing diamond into the ring, the same ring that Mr Ward believes is the subject of these proceedings. Therefore, the diamond claimed to have gone missing “could not be the same diamond as claimed by Mr and Mrs Bromley as we were instructed that the diamond was missing in 2011 based on our records.”
Mr Ward said that Leanne Amor dealt with Mr and Mrs Bromley mostly. They delivered “a number of items of jewellery” for remodelling and Ms Amor found a design. Ms Amor asked Mr Ward to source “some stones”, first 1 carat then a larger “stone” but Mr Bromley “could not afford the larger pieces to replace the old centre stone”. He recalls asking Ms Amor to “measure the stones etc which were removed from Mrs Bromley’s jewellery” which were then placed into individual packets which Ms Amor marked with the sizes and quantities of diamonds removed. Mr Ward said he knows this because “I recognise Leanne’s handwriting on all the packets”. He recalled the main gemstone was a diamond with an inclusion because “Leanne must of (sic) asked me to look at it” and that Ms Amor came up with a design that was then sent to a CAD designer in India. He said that Mrs Bromley did not know what size diamonds she gave to CTJ and that the only notations were on the packets and on the CAD designer’s picture marked exhibit GW5. He said that reference by the CAD designer to a 5.96mm main stone was incorrect, that it was 5.9mm as noted on the packet.
Mr Ward denied that “they” used Mrs Bromley’s diamonds in another customer’s bangle job as alleged by Ms Amor or that he said he would credit Mrs Bromley, he said that they had ample smaller diamonds at any one time and have never used a client’s gemstones in another client’s jobs and “I know the diamond bangle job as I have reviewed CTJ’s records regarding this particular job which was completed before the Bromley’s job so the diamonds could not be used as suggested by Leanne Amor”. He said that only he and general manager Dianne Duffield were present on the day Mr and Mrs Bromley attended CTJ’s premises to pick up “their goods”. He said that CTJ had been waiting on approval to go ahead with the job for a couple of months and that the front drawers depicted in a copy of a photograph marked GW7, which were never locked, “were where goods on hold were kept by CTJ.”
Mr Ward said that “Mr Bromley had access to his packet with his stones at all times.” He said that he opened the drawer and found “their packet”, removed all the separate packets that were “made up of the different sized stones” in front of Mr and Mrs Bromley, began counting out the larger of the diamonds on the counter in front of them, and that there were several other packets with “very small stones in them”. He said that he then asked Mr and Mrs Bromley “do you want to count them” or words to that effect but could not now recall what their answer was and “… if everything is ok can you please sign to say you have retrieved all your diamonds and settings?” or words to that effect, and that he wrote on the receipt in front of them “Client picked up rings”. He then asked Mr and Mrs Bromley to “sign” and he signed off himself “as proof that they had picked up all stones and gold.” Mr Ward said that there was ample time during this whole process for the Bromleys to “look at the one large stone that was in the packet”. Exhibit GW8 is a copy of the signed receipt and “(it) clearly states “Please note CTJ store policy select carefully and inspect items before leaving the store”. Exhibit GW 8 has handwritten on it “CLIENT PICKED UP RINGS”. The full printed text on the receipt reads:
PLEASE NOTE CTJ STORE POLICY
Items purchased from CTJ have a 14-day change of mind policy to return an item for exchange only. We do not give refunds. Only store credit. 50% deposit is required for any special order or makes. Deposit will be withheld in a case of cancellation. Select carefully and inspect items before leaving store.
Mr Ward said the Mr and Mrs Bromley returned just before closing time. He recounted the verbal exchanges.[74] He said that he did not take any gold and diamonds from “Mr and Mrs Bromley’s packets” and searched all packets retained by CTJ but could not find any belonging to them. He spoke with all members of staff and they did not know of any gems or stones matching the description of those claimed to be missing. Ms Amor denied that any were missing. He said that neither he nor CTJ swap stones and had no reason to steal stones. He said he’d have no reason to destroy a reputation over 20 years over something like this. He referred to Exhibit GW 10, a screenshot of pricing, and said that a stone with a fracture matching their description would cost approximately US$890 to US$1300. He disputed the Bromley valuer’s valuation and said “I deal in GIA certified diamonds constantly as this is my business and I have knowledge of diamonds with fractures.[75]
[74]Affidavit of Gregory Roy Ward sworn 31 August 2021, paragraphs 64 to 88.
[75]Ibid, paragraphs 89 to 96.
Mr Ward referred to the other customer’s bangle and explained why it could not be the case that Mrs Bromley’s diamonds were set in it.[76] Referring to exhibit GW14, he referred to Ms Amor’s statement that Mrs Bromley’s job packet was in the drawer prior to her taking leave on 30 March 2020.[77] He said that bangle was picked up on 7 March 2020 and that it was therefore impossible for Mrs Bromley’s stones to have been in the packet as of 30 March 2020[78] as Ms Amor said in her email to him dated 14 May 2020 (Exhibited GW14). He said that Ms Amor herself took “the same size stones in a pair of diamond studs on 14 February 2020 which she did on her personal account with CTJ” and refers to exhibit GW16, and that she owes CTJ “in excess of $17,000 in stock and free labour and materials supplied to her by CTJ”.[79] He referred to Ms Amor having unsuccessfully claimed 12 weeks workers compensation after “leaving unexpectedly to travel to New South Wales where she now resides.”[80] He also said Ms Amor made a “false” claim in Linkedin that she was a diamond merchant and store manager at CTJ “from 2008 to present”, whereas that was never the case.[81]
[76]Ibid, paragraphs 100 to 109 and see photocopies of the bangle – exhibit GW13, undated.
[77]Ibid, paragraph 106.
[78]Ibid, paragraph 113; and see paragraph 6 of the letter from CTJ’s solicitors dated 26 March 2021 exhibited GW17 to Mr Ward’s affidavit.
[79]Ibid, paragraphs 110 to 112.
[80]Ibid, paragraph 113.
[81]Ibid, paragraphs 114 to 115.
Mrs Bromley was a vulnerable person because she had no means of knowing, nor the right to be informed of, nor any control over, CTJ’s internal procedures for the security of customers’ jewellery and diamonds, and because the (mis) representation that CTJ and Mr Ward could be trusted with them was, unbeknown to her at the time, illusory. The contractual term that Mrs Bromley’s rings and diamonds would be kept safe and secure was also illusory because, as Mr Ward knew, the on-hold procedures did not achieve or ensure that. The statutory guarantee under section 60 of the ACL that CTJ’s services would be performed with due care and skill guaranteed that they would not be performed negligently, therefore the provisions of the Civil Liability Act (2003) (Qld) apply. Applying the “calculus”[168] of those provisions, I find as follows.
(a)Mr Ward, as sole director, and his company CTJ, owed Mrs Bromley a duty of care in tort to not perform the services negligently. The services were performed negligently in the respects I have identified. As sole director, he was responsible for the prescription, administration, and supervision, of effective security procedures for the protection of customers jewellery and diamonds. That duty was non delegable insofar as liability for lax procedures is concerned.
(b)The risk of loss of Mrs Bromley’s diamonds was foreseeable, not insignificant, and one against which a reasonable person would have taken precautions, having regard to the likelihood of harm absent the precautions, the seriousness of the harm that occurred, the negligeable burden of taking the precautions because goods on hold could routinely be kept in the jeweller’s safe, and the social utility of the activity (the storage of customers’ valuables awaiting reconstruction) that created the risk of harm in circumstances where consumer protection is paramount.
(c)The obvious risk to the consumer, Mrs Bromley in this case, of the lax and unsafe practice of keeping a customer’s valuable jewellery in an unlocked on hold drawer on the CTJ shop floor accessible to anyone, which was unreasonable in the circumstances, the simple and effective other course open to CTJ and Mr Ward at no additional cost to the company being to keep on hold goods of customers in the jeweller’s safe, an existing facility, and following the CTJ protocol and procedures revised by Mr Ward only after Mrs Bromley’s loss to prevent similar occurrences in future.
(d)The breach of duty by CTJ and its sole controller, Mr Ward, was a necessary occurrence of the harm, that is – it caused the harm by facilitating easy, unaccountable, untraceable theft, absent which the loss would probably have not occurred, alternatively, in the consumer protection context, the scope of liability of the breaching persons (Ward and CTJ) makes it appropriate to extend that liability to them for the harm caused.
[168]See Meandarra supra, at [25] per Fraser JA.
Mr Ward and CTJ are liable for their breach of the duty of care owed to Mrs Bromley for those reasons.
I find that the amount of $4,400.00 as the value of the brown diamond substituted for Mrs Bromley’s large solitaire engagement diamond that she collected from Mr Ward of CTJ on 12 May 2020 is not to be brought to account in reduction of CTJ’s liability to Mrs Bromley because it is property belonging to an unidentified person. Mrs Bromley must return it to CTJ. I cannot order Mr Ward and CTJ to return her diamonds because it is unclear who possesses them and an order for return of property may only be made where the person in possession is a party to the proceeding.
I decline Mrs Bromley’s request that I direct the Principal Registrar to refer a copy of the papers and this decision to the Commissioner of the Queensland Police Service for investigation. As I explained, the Tribunal in its minor civil dispute jurisdiction has no disciplinary role in respect of perceived shortcomings of a police investigation. The Tribunal has no criminal jurisdiction whatsoever to identify and punish miscreants. Mrs Bromley is however at liberty herself to refer a copy of the papers in her possession, together with this decision, which will also be published online by the Supreme Court Library on the QCAT case law database, if so advised.
Orders
I order as follows.
(1) The Respondents pay the Applicant $22,033.00 for claim, $1,841.30 for interest, and $352.00 for filing fee, in total $24,226.30, no later than 4 pm on 25 May 2022.
(2) The Applicant return to the Respondent, CTJ Jewellery Pty Ltd, the brown diamond presently in her possession, by handing it to a current director of the company as ascertained by an ASIC search no later than 4 pm on 1 June 2022.
DIRECTION
(3) QCAT Registry email and mail the Orders and these Reasons for Decision to the parties and to Solicitors of record for the Respondents.
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