Howard v Hourglass Jewellers Caloundra
[2013] QCATA 251
•19 September 2013
| CITATION: | Howard v Hourglass Jewellers Caloundra [2013] QCATA 251 |
| PARTIES: | Andrew Howard (Appellant) |
| v | |
| Hourglass Jewellers Caloundra (Respondent) |
| APPLICATION NUMBER: | APL286-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 19 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application for leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – CONSUMER AND TRADER – where the applicant contracted with the respondent to manufacture a wedding band – where the applicant was not satisfied with what the respondent produced – where the applicant claimed the wedding band was not produced in accordance with the agreed description and was not fit for purpose – where the applicant commenced proceedings in the Tribunal seeking a refund of the purchase price – where the Tribunal found the applicant was not entitled to a refund – where the applicant seeks leave to appeal that decision – whether leave to appeal should be granted Competition and Consumer Act 2010 (Cth), Schedule 2 Cachia v Grech [2009] NSWCA 232, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Howard and his wife Sharyn approached Hourglass Jewellers Caloundra about the manufacture and purchase of a Russian wedding band. They eventually paid $2,800 for the ring but were not happy with it and brought proceedings in QCAT’s Minor Civil Disputes jurisdiction for a full refund of the purchase price. (They were prepared to return the ring to the jeweller).
The matter came on for hearing before a Magistrate sitting as a QCAT Member at Maroochydore on 1 May 2013. Mr and Mrs Howard gave evidence as did Mr Seaforth Matheson, representing Hourglass Jewellers. At the conclusion of the hearing the learned Magistrate concluded that the ring supplied by Hourglass did comply with the Howards’ order, and they were not entitled to a refund.
Leave to appeal is a necessary prerequisite to an appeal because the original proceedings were in the Tribunal’s Minor Civil Disputes jurisdiction.[1] Leave will be only granted where there is a reasonably arguable case of error in the primary decision,[2] and a reasonable prospect that the applicant would obtain further substantive relief on appeal.[3] The question which is often asked in applications for leave to appeal is this: is leave necessary to correct a substantial injustice to the applicant, caused by some error?[4]
[1]QCAT Act s 142(3)(a)(i).
[2]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 at 46.
[3]Cachia v Grech [2009] NSWCA 232 at [13].
[4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 at 46.
Here, the question the learned Magistrate had to decide was whether or not the ring manufactured and sold by Hourglass complied with Mr and Mrs Howard’s order for it. The evidence, the transcript shows, focused on what Mr and Mrs Howard believed they ordered, the conversations between the parties about the details of the ring to be manufactured and supplied, and whether or not the ring satisfied that description.
The learned Magistrate ultimately concluded that the evidence of Mr and Mrs Howard did not persuade her that the ring supplied by Hourglass was not what they ordered, and dismissed their claim. In doing so the learned Magistrate, sitting and acting as a Member of this Tribunal, was called upon to weigh the evidence before her and then apply the law to the findings that she made about that evidence.
Although her reasons, as recorded in the transcript and also in her decision document on the QCAT Minor Civil Dispute file, do not directly refer the relevant statute and legal principles, it is clear she was applying the Australian Consumer Law[5] and, in particular, addressing the question arising under that statute whether, when goods were to be supplied in accordance with a description, they actually corresponded with that description.
[5]Competition and Consumer Act 2010 (Cth) Schedule 2.
In short, the learned Magistrate found that Mr and Mrs Howard’s evidence did not persuade her that Hourglass had breached the guarantee, under the legislation, that the ring would comply with the description.
The QCAT Appeal Tribunal directed that the application for leave to appeal (and the appeal, if leave is granted) would be heard and determined on the papers and required the parties to file and exchange written submissions. They have done so.
Mr Howard’s submissions refer to the Australian Consumer Law and to the implied guarantee that the ring would be fit for purpose. He says the ring does not sit comfortably on Mrs Howard’s finger, or attractively, and actually falls off so it is not ‘fit for purpose’. The fact that a ring might require adjustment was, apparently, accepted by the learned Magistrate as an ordinary event in a transaction of this kind. Mr Matheson gave evidence to that effect and, indeed, signified a willingness to make the adjustment. In light of that evidence the implied finding that a loose fit did not mean the ring did not match the agreed description of it was reasonably open, and cannot be said to have involved any error on the Magistrate’s part.
Secondly, he asserts, again, that despite lengthy discussions between them and Mr Matheson about the bandwidth, shape of the band profile and placement of diamonds, the ring does not match the description which was agreed by him, Mrs Howard, and Hourglass.
These are, with respect, exactly the issues considered and addressed by the learned Magistrate. They were explored at considerable length in the hearing and, the transcript shows, the Magistrate gave each party more than ample time to present its case, to respond to evidence and submissions from the other party, and to make submissions.
The evidence included, in particular, contemporaneous notes taken by Mr Matheson or his employee concerning discussions about the ring and notes about its form. The learned Magistrate concluded, in light of that evidence, that the Howards did receive the ring that they had ordered.[6] The notes taken in the jeweller’s office were, the learned Magistrate apparently concluded, the best available evidence of what was originally discussed; and, in so far as there were further conversations concerning details of the ring the learned Magistrate apparently preferred Mr Matheson’s evidence to that of Mr and Mrs Howard.
[6]Transcript of Proceedings (QCAT, Howard v Hourglass Jewellers Caloundra, MCD121-13, 1 May 2013) 9-10.
Nothing in the transcript, or in Mr Howard’s submissions to the Appeal Tribunal, reveal any apparent error in the manner of reasoning by which the learned Magistrate came to that conclusion, or that it was not reasonably open to her on the evidence presented by both parties.
It is not the task of the Appeal Tribunal to decide, again, where the truth might lie as between the competing versions given by the parties. That exercise has already been undertaken by the learned Magistrate after she had the opportunity to hear from and see the parties, in person, and consider all the evidence. The Appeal Tribunal can and will only interfere if some error on the part of the learned Magistrate is apparent.
Mr Howard has not persuaded me that any error was made. The findings made by the learned Magistrate were, with respect, reasonably open to her and are not discordant with the evidence, and the weight of evidence presented at the hearing. Once that conclusion is reached, there is no basis for a finding that any breach of the Australian Consumer Law occurred. For these reasons, the application for leave to appeal will be refused.
0