Jennifer D Keen Pty Ltd t/as Brides of Brisbane v Barkhuizen
[2013] QCATA 224
•5 August 2013
| CITATION: | Jennifer D Keen Pty Ltd t/as Brides of Brisbane v Barkhuizen [2013] QCATA 224 |
| PARTIES: | Jennifer D Keen Pty Ltd t/as Brides of Brisbane (Appellant) |
| V | |
| Janine Sylvia Barkhuizen (Respondent) |
| APPLICATION NUMBER: | APL170 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe OAM, Senior Member |
| DELIVERED ON: | 5 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549; Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
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.
REASONS FOR DECISION
Buying a wedding dress is a very important event in a woman’s life. Ms Barkhuizen was very disappointed with her experience at Brides of Brisbane. She claimed that the dress supplied did not meet the description of the dress she ordered, so she filed a claim for return of her deposit. The tribunal agreed and ordered Brides of Brisbane pay Ms Barkhuizen $1,298.00.
Brides of Brisbane wants to appeal that decision. It says that the learned Adjudicator failed to provide natural justice. It also says that the learned Adjudicator erred in his application of the Australian Consumer Law.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Brides of Brisbane’s store manager, the person who sold the dress to Ms Barkhuizen, prepared a detailed statement for the hearing. She wrote that did not want to appear before the tribunal because she had been threatened by Ms Barkhuizen’s fiancé. She wrote that she was suffering health concerns and she was being treated by a doctor.
Brides of Brisbane points out that s 29 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) requires the tribunal to take reasonable steps to ensure that each party understands the nature of the assertions made and the implications of the assertions. Brides of Brisbane says that the learned Adjudicator failed in his duty under s 29 because he did not give Brides of Brisbane the opportunity to adjourn the hearing so that it could seek further advice about how the store manager could give evidence. Brides of Brisbane says that he should have explained the importance of the store manager’s evidence and what options were available to call her to give evidence.
As Mason J (as his Honour then was) observed in Kioa v West,[5] the requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal in question:
What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-3; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311, 319-321.
In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations …
[5] (1985) 159 CLR 550 at 584-585.
The minor civil disputes jurisdiction of the tribunal is a busy one. It must balance the obligation to provide procedural fairness with the tribunal’s obligation to deal with matters economically and quickly[6]. The tribunal has expressed the view[7] that:
The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, … the public as a whole, not merely the parties to the proceedings‟.
[6] QCAT Act s 3(b).
[7]Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 at [13].
Ms Barkhuizen points out that the tribunal website gives parties guidance about bringing witnesses to a hearing[8]:
If there is a good reason why a witness cannot come to the hearing, you should bring an affidavit sworn by the witness setting out the evidence you want the tribunal to take into account. Please note that the member or adjudicator may place a lower value on this evidence because the witness cannot be cross-examined.
[8]
Given the store manager’s detailed statement, it appears that Brides of Brisbane was aware of the tribunal’s attitude towards witness’ availability at the hearing. The store manager made it clear that she did not want to attend the hearing. Ms Keen, the director of Brides of Brisbane, told the learned Adjudicator that the store manager “could not possibly be here for me”[9]. Even if the learned Adjudicator had offered Brides of Brisbane an adjournment, the reality is that the store manager would not have appeared to give evidence.
[9] Transcript page 23, lines 47 - 48.
The learned Adjudicator did not deprive Brides of Brisbane of the opportunity to rely on the store manager’s evidence. He read the statement and observed that there was a difference between her evidence and that of Ms Barkhuizen[10]. Ms Barkhuizen and her mother gave consistent evidence about the conversations that occurred on the relevant day. The store manager gave a different version. The learned Adjudicator accepted the evidence of the Barkhuizen ladies and it is unlikely that his decision would have been any different even if the store manager had given oral evidence.
[10] Transcript page 15, lines 27 – 32.
There is a limit to the tribunal’s obligation under s 29. I am satisfied that Brides of Brisbane understood the practices and procedures of the tribunal. It knew the case it had to meet. The learned Adjudicator did not fail in his obligations under s 29. The learned Adjudicator did not deny Brides of Brisbane natural justice.
Brides of Brisbane says that the learned Adjudicator erred in finding a breach of the Australian Consumer Law. It says that Ms Barkhuizen asked for a Sonora gown and that is what she got. It says that Ms Barkhuizen did not rely on the store manager’ statements. It says that any statement by the store manager about how the gown would look was a statement about the specification of the gown, and is not part of its description.
Those submissions do not fit with the evidence the learned Adjudicator accepted. He found that Ms Barkhuizen ordered a gown by reference to the photograph of the Sonora but relying on an assurance that the skirt of the gown was the same as the gown she had tried on[11]. The relevant description is “the gown called Sonora has a skirt like the one in the shop”. The learned Adjudicator accepted that Ms Barkhuizen relied on that description. The evidence supports that finding and I can find no compelling reason to come to a different view.
[11] Transcript page 22.
Even if I accept Brides of Brisbane’s argument, it does not necessarily mean that it is not liable under the Australian Consumer Law. Section 57 deals with sales by sample. If, as it appears from the evidence, Ms Barkhuizen bought the Sonora because the store manager told her the skirt was the same as a sample she tried on in the shop, then the gown was supplied “by reference to a sample or demonstration model”[12].
[12] Australian Consumer Law s 57(1)(a).
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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