CITATION: | Gemshell Pty Ltd t/as Swallow Fashion [2018] QCATA 27 |
PARTIES: | Gemshell Pty Ltd t/as Swallow Fashion |
| v | |
| Jacqueline Mooney (Respondent) | |
APPLICATION NUMBER: | APL175-17 |
MATTER TYPE: | Appeals |
HEARING DATE: | 12 February 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Member Howe |
DELIVERED ON: | 26 February 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Leave to appeal granted. 2. The appeal is allowed. 3. The decision of 24 May 2017 is set aside and the matter is returned to the original tribunal for reconsideration with the hearing of additional evidence in respect of the assessment of loss or damage if deemed necessary by the tribunal. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where garment returned from dry cleaning damaged – whether appropriate expert evidence – where basis not laid for expert evidence – whether adequate reasons for decision – where inferences drawn in the absence of evidence – whether assessment of damages undertaken Australian Consumer Law (Cth), s 267(4) Attorney-General v Kehoe [2001] 2 Qd R 350 |
APPEARANCES: | |
APPLICANT: | Ken Harvey represented the Appellant |
RESPONDENT: | Jacqueline Mooney represented herself |
REASONS FOR DECISION
Swallow Fashion (Swallow) are dressmakers. They take articles of clothing on consignment for dry cleaning which is performed off premises.
Mrs Mooney asked them to dry clean her daughter’s wedding dress. It was slightly soiled, particularly at the bottom hem, but apart from that there were no visible stains.
When the dress returned from the dry cleaners to Swallow and they in turn returned it to Mrs Mooney it was found to have a large dark stain at the centre of the front and back bodice section. The lace also had pulled threads across the bodice and arms.
Mrs Mooney returned it to Swallow who sent it to dry cleaners again. It came back with additional staining.
Mrs Mooney commenced proceedings in the tribunal claiming $2,950, being half the purchase price and the price of the original costs of dry cleaning. The tribunal found in favour of Mrs Mooney and awarded her that sum.
Swallow seek leave to appeal that decision of the tribunal.
Given this is an appeal from a decision made in the tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]
[1]QCAT Act, s142(3)(a)(i).
Leave to appeal will usually only be granted where at minimum an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2]
[2]Pickering v McArthur [2005] QCA 294, [3].
The grounds of appeal are, as often the case where parties are not legally represented, rather…
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- Case
- [2018] QCATA 27
- Decision Date
CaseChat Overview and Summary
The appeal focused on several key legal issues, primarily concerning the adequacy of the evidence presented during the initial proceedings. Specifically, the court examined whether the respondent had provided appropriate expert evidence to substantiate the claim of damage. Additionally, the court scrutinized the basis upon which the magistrate had made certain inferences and the sufficiency of the reasons provided for the decision. The appeal also questioned whether the magistrate had correctly assessed the damages awarded.
In its judgment, the Supreme Court found that the magistrate's decision contained significant errors of law. The court determined that the basis for the expert evidence was insufficient, and the magistrate had drawn inferences without a proper evidentiary foundation. Furthermore, the court held that the reasons provided for the decision were inadequate, and the assessment of damages was flawed. Consequently, the appeal was allowed, and the decision of 24 May 2017 was set aside. The matter was returned to the original tribunal for reconsideration, with the possibility of additional evidence being heard if necessary.
The final orders of the court were that leave to appeal was granted, the appeal was allowed, and the decision of 24 May 2017 was set aside. The matter was returned to the original tribunal for reconsideration, with the tribunal having the discretion to hear additional evidence concerning the assessment of loss or damage if deemed necessary.
Orders
Orders of the court
1. Leave to appeal granted.
2. The appeal is allowed.
3. The decision of 24 May 2017 is set aside and the matter is returned to the original tribunal for reconsideration with the hearing of additional evidence in respect of the assessment of loss or damage if deemed necessary by the tribunal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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