Harvey v Davis
[2014] QCATA 131
•21 May 2014
| CITATION: | Harvey v Davis [2014] QCATA 131 |
| PARTIES: | Jill Harvey (Applicant/Appellant) |
| v | |
| Susan Mary Davis (Respondent) |
| APPLICATION NUMBER: | APL219 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President |
| DELIVERED ON: | 21 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is granted. 2. The appeal is allowed. 3. The decision of 29 April 2013 is set aside. 4. Warwick minor civil dispute application no. 9/13 is dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – JURISDICTION – where respondent gifted dog to applicant on conditions – whether respondent seller a “trader” for the purposes of conferring jurisdiction on tribunal to decide the matter – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) s12(4), s 32, s 142(3)(a)(i), Sch 3 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, cited Pickering v McArthur [2005] QCA 294, applied |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
In 2009, Ms Davis gave Ms Harvey her pure bred Afghan hound. The gift came with conditions: that Ms Harvey would not breed from the dog and would not sell it on. In 2012, Ms Harvey advised Ms Davis that she intended to breed from the dog, prompting Ms Davis to ask for its return. Ms Harvey refused.
Ms Davis filed an application for minor debt, asking the tribunal to order the dog’s return. A Magistrate, sitting as a member of the tribunal, ordered the dog be returned to Ms Davis by 13 May 2013.
Ms Harvey wants to appeal that decision. She says the learned Magistrate erred in fact and law. She says she was denied a proper opportunity to put her case. She says Ms Davis is not a “trader” and, therefore, the tribunal had no jurisdiction to hear the dispute.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] The principles the appeal tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as his Honour then was) in Pickering v McArthur:
There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1] QCAT Act s 142(3)(a)(i).
[2] [2005] QCA 294 at [3].
Ms Harvey did not raise the jurisdictional issue before the learned Magistrate.
The tribunal has jurisdiction to hear a claim for a debt or liquidated demand.[3] Despite her having filed a claim for a minor debt, Ms Davis wanted her dog returned; this can not be classified as a minor debt.
[3] QCAT Act s 12(4)(a).
The tribunal also has jurisdiction to hear claims arising out of a contract between a consumer and a trader.[4] A “trader” means a person who, in trade or commerce, carries on the business of supplying goods or regularly holds herself out as ready to supply goods.[5] There is no dispute that Ms Davis supplies goods. The question is whether, in 2009, Ms Davis did so in trade or commerce.
[4] QCAT Act s 12(4)(b).
[5] See QCAT Act, Sch 3 definition of trader.
Ms Davis told the learned Magistrate that:
·She bred dogs as a hobby.[6] (She said that people who make money out of dog breeding do the wrong thing.[7])
·The arrangement with Ms Harvey was one between friends.[8]
·She told the learned Magistrate that she was “semi-retired from dog showing” so she wouldn’t be making any money from dog breeding.[9]
[6] Transcript 29 April 2013 page 1-15, lines 19, 43-46; page 1-17, line 41.
[7] Transcript 29 April 2013 page 117, lines 43-46.
[8] Transcript 29 April 2013 page 1-20, lines 24-25.
[9] Transcript 29 April 2013 page 1-31, lines 21-22.
Ms Harvey, too, told the learned Magistrate that she considered dog breeding as a hobby, albeit one from which money can be made.[10] On 29 April 2013, the Magistrate ordered that Ms Harvey return the dog to Ms Davis. When Ms Harvey did not return the hound, Ms Davis applied to reopen the proceeding.
[10] Transcript 29 April 2013 page 1-25, lines 33-36.
On 7 June, the learned Magistrate canvassed the points Ms Harvey now raises in the appeal and came to the view that the tribunal had no jurisdiction to hear the claim.[11] He could not conclude that Ms Davis was a trader.[12]
[11] Transcript 7 June 2013 page 1-4, lines 45-46.
[12] Transcript 7 June 2013 page 1-5, lines 12-15.
Certainly, on the evidence before the learned Magistrate, Ms Davis could not be classified as a trader; and therefore, the tribunal had no jurisdiction to hear the claim.
Both parties have filed submissions in this application. Some of Ms Davis’ submissions are in the nature of further evidence. She tells the appeal tribunal the price for which she sells puppies. She says that she retired from teaching in 2012 and dog breeding is now her main source of income. She tells says that she has had a kennel name for over 20 years. She says that she has a dedicated website for selling puppies, and that she has to guarantee her dogs.
The appeal tribunal will only accept additional evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, a party who intends to rely on, and adduce such evidence must satisfy three tests. Could the evidence have been obtained with reasonable diligence for use at the trial? If allowed, would the evidence be likely to have an important impact on the result of the case? Is the evidence credible?[13]
[13] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
The evidence was available to Ms Davis, who could have obtained the evidence for use at the hearing. The additional evidence relates to the present, not the position as at 2009, when this transaction took place. Thus the evidence is not relevant, and so would not have had an important impact on the case. As a result, the appeal is decided without the hearing of the additional evidence.
The tribunal had no jurisdiction to hear this dispute. Leave to appeal should be granted and the appeal allowed. The decision of 29 April 2013 is set aside, and the application made by Ms Davis for a minor debt is dismissed.
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