Janos Hoey v Consumer Trader & Tenancy Tribunal
[2002] NSWSC 1023
•30 October 2002
CITATION: Janos Hoey v Consumer Trader & Tenancy Tribunal & Anor [2002] NSWSC 1023 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S): SC 11754 of 2002 HEARING DATE(S): 25 October 2002 JUDGMENT DATE: 30 October 2002 PARTIES :
Janos Hoey Pty Limited (Plaintiff)
v
Consumer Trader & Tenancy Tribunal (First Defendant)
Boambee Pastoral Company Pty Limited (Second Defendant)
JUDGMENT OF: Master Malpass
LOWER COURT
JURISDICTION :Consumer Trader & Tenancy Tribunal LOWER COURT
FILE NUMBER(S) :CO 2001/4300 LOWER COURT
JUDICIAL OFFICER :Mr David Turley, Presiding Member
COUNSEL : Mr J Wilson (Plaintiff)
N/A (First Defendant)
Mr S J Motbey (Second Defendant)SOLICITORS: Matthews Williams (Plaintiff)
I V Knight - Crown Solicitor - Submitting Appearance (First Defendant)
Carneys (Second Defendant)
CATCHWORDS: Appeal from tribunal - no transcript - deficiency of evidence to support submissions - no error of law demonstrated. LEGISLATION CITED: Fair Trading Act 1987, s 42. CASES CITED: Watson v Foxman (1995) 49 NSWLR 315 at 318. DECISION: See Paragraph 19.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMaster Malpass
Wednesday 30 October 2002
JUDGMENT11754 of 2002 Janos Hoey Pty Limited v Consumer Trader & Tenancy Tribunal & Anor
1 Master: The proceedings were commenced by Summons filed on 25 June 2002. The proceedings bring an appeal from a decision of the Consumer Trader & Tenancy Tribunal (the Tribunal). The Presiding Member was Mr David Turley. The decision was given on 28 May 2002.
2 The second defendant brought a claim in the Tribunal seeking relief in respect to loss or damage said to arise from misleading and deceptive labelling/directions on the label of a product known as Top Off Feed Rite (the Feed Rite label). The second defendant relied on s 42 of the Fair Trading Act 1987 (the Act). Feed Rite was a food supplement produced by the plaintiff. The product was used in the feeding of lambs for the purpose of fattening them. It appears that about eighty-six sheep died. An autopsy on two of them revealed that they had died of lactic acidosis caused by eating grain.
3 The hearing occupied some days. The Tribunal received both oral evidence and documentation (evidence was taken over at least two days). The plaintiff called Dr Lee (an expert) and a lay witness (Mr Bendick). The second defendant called Messrs Carroll, Street and Payten. The proceedings were not recorded and there is no transcript.
4 The Tribunal found in favour of the second defendant and ordered the plaintiff to pay the sum of $20,637.87.
5 Certain grounds of appeal have been filed. Largely, they may be said to agitate submissions as to there being no evidence to support conclusions and submissions as to failure to give any or any proper weight to matters.
6 There is but a limited avenue of appeal available to the plaintiff. It is restricted to an error of law.
7 On the hearing of this appeal, the court merely had before it some of the documentation that was placed before the Tribunal (see Exhibits A and B). Exhibit A was a bundle of documents (containing inter alia the application form, a copy of the Feed Rite label and the Reserved Decision of the Tribunal). Exhibit B was a Statement of Evidence from Dr Lee. The court does not have before it the oral evidence adduced before the Tribunal. In the circumstances, it seems to me that the plaintiff faces an insurmountable hurdle. This is a problem that was accepted by the plaintiff at an early stage during the hearing.
8 The Feed Rite label contains the following:-
- “LIMITATIONS: Do not feed to pigs, horses or other equines as this may be fatal. To be used in supplementary rations containing at least 20% of dry matter as roughage – with particle length of at least 1 cm. Example: Processed Hay or available Dry Pasture.
- DIRECTIONS: Thoroughly mix 20kg (1 bag) to each tonne (1000kg) of ration.”
At the top of the label under the word “CAUTION” the following words appear:
- “USE STRICTLY AS DIRECTED.
KEEP OUT OF REACH OF CHILDREN
FOR ANIMAL TREATMENT ONLY”
9 The Tribunal also had before it the labelling used in respect to another product (Eskalin). It appears to have been used for purposes of comparison (inter alia as providing the detail that was said to be missing from the Feed Rite label). In reaching its decision, the Tribunal did not have regard to this material.
10 A primary active ingredient in Feed Rite was Virginiamycin (the drug). It has the function of preventing lactic acidosis. To perform that function it must be mixed in thoroughly in the batch of feed so that in every mouthful of feed that the animal gets, the animal also gets a uniform dose of the drug. If that is not done, there will be what are called “hot spots” which have no drug in them. The Tribunal made a finding that the sheep died from lactic acidosis.
11 In the proceedings before the Tribunal, the second defendant alleged that because of inadequacies in the labelling they suffered the loss of the sheep. In opposing this case, the plaintiff looked to the expert evidence of Dr Lee and oral evidence of Mr Bendick. The latter has been described as a consultant to the plaintiff and gave evidence as to what was said by him inter alia to Mr Carroll (a director of the second defendant). Messrs Carroll and Payten gave evidence that was in conflict with the evidence given by Mr Bendick. The evidence concerned what had been said in relation to the use of equipment, (a mixall or an auger). The plaintiff also advanced an issue that the second defendant had not followed the directions on the label (it was said that there had not been a thorough mixing). The evidence of Dr Lee was relied on to support this contention. There was conflict between his views and the oral evidence from Messrs Carroll, Street and Payten.
12 The Tribunal found that the labelling was inadequate. It resolved the question of conflicting evidence by preferring the corroborated evidence of Messrs Carroll and Payten to that of Mr Bendick. The conflict between Dr Lee and the lay witnesses is referred to in paragraphs 16 and 17 of the decision. Minds may differ as to the finding made. In the present case it does not seem to me to matter. However, if a view needs to be expressed I prefer the view that the Tribunal was saying that it was not satisfied that there had been a failure to thoroughly mix.
13 The reasons of the Tribunal contain inter alia the following:-
- “17. The Top Off label having specified the ration formula then goes on to say ‘DIRECTIONS: Thoroughly mix 20 Kg (1 bag) to each tonne (1000Kg) of ration’. No mixing method is specified and no particular machinery is specified to achieve that purpose. In my opinion the directions recorded above are inadequate and deficient and in practice were totally unsuccessful. I might have found that one of the three witnesses failed to properly mix the supplement with the ration formula but I can not accept that all three separately failed to do so. In my opinion the very brevity of the directions given on the label is in itself deceptive and totally inadequate to properly instruct the end user or alert he or she to the very probable dangers from incorrect use.”
14 I now turn to what took place during the hearing of the appeal. Mr Wilson appeared for the plaintiff. Mr Motbey appeared for the second defendant. Both counsel handed up written submissions and supplemented those submissions orally.
15 It may be said that Mr Wilson was confronted with a difficult task. I shall expressly refer to some of the arguments that were pressed. His client challenged the finding as to inadequate labelling. He relied on what was said in Watson v Foxman (1995) 49 NSWLR 315 at 318. It was said the Tribunal merely made an assumption of compliance with the label directions and that the finding as to inadequacy of the directions was founded on that assumption. It was also said that the conflict between Dr Lee and Messrs Carroll, Street and Payten was left unresolved.
16 It seems to me that the finding as to inadequate labelling was a finding of fact and that in the circumstances of this case it could not be successfully challenged as an error of law. I do not accept the submission that the finding was founded on an assumption. There seems to be no dispute that the Tribunal determined the application on the issue litigated by the parties (that the labelling was inadequate).
17 I have read what was said in Watson. In my view, it does not assist the plaintiff in this case. Indeed, it seems to me that the submission misconceives what was observed in that case. In the present case, the finding was that the loss or damage flowed from the inadequacy of the directions. The direction to thoroughly mix was regarded as inadequate. In these circumstances, it does not seem to me that a failure to comply with the direction would have assisted the plaintiff in meeting the second defendant’s claim. Be that as it may, the Tribunal appears to have found against the plaintiff on that question. There were competing views as to the onus borne on it. If it be necessary to express a view, I prefer the view that it was borne by the plaintiff. For completeness, I should add that I do not accept that the conflict between Dr Lee and the lay witnesses was left unresolved.
18 The plaintiff bears the onus of satisfying the court that there has been error of law justifying the disturbing of the decision. In my view, that onus has not been discharged.
19 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits are returned.
5
2
1