Gemshell Pty Ltd t/as Swallow Fashion - [2018] QCATA 27

CITATION:	Gemshell Pty Ltd t/as Swallow Fashion [2018] QCATA 27
PARTIES:	Gemshell Pty Ltd t/as Swallow Fashion (Appellant)
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) Queensland Civil and Administrative Act 2009 (Qld), s 142(3)(a)(i) Attorney-General v Kehoe [2001] 2 Qd R 350 Australian Broadcasting Tribunal v Bond and Ors (1990) 94 ALR 11 Morrison v Chen [2015] QCATA 129 Pickering v McArthur [2005] QCA 294 Ryan v Worthington [2014] QCATA 277 Sinclair v Maryborough Mining Warden (1975) 132 CLR 473
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QCATA 27
Decision Date: 26 February 2018

CaseChat Overview and Summary

Gemshell Pty Ltd t/as Swallow Fashion, trading as Swallow Fashion, sought relief in the court following a dispute with a customer who had returned a garment damaged from dry cleaning. The customer, the respondent, pursued a claim for damages, which Swallow Fashion contested. The matter was initially heard and determined by a magistrate in the Civil Claims Division of the Magistrates Court of Victoria. Swallow Fashion, dissatisfied with the outcome, appealed to the Supreme Court of Victoria.

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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