McDonald v Kenmore Podiatry Pty Ltd - [2012] QCAT 126

CITATION:

McDonald v Kenmore Podiatry Pty Ltd [2012] QCAT 126

PARTIES:	Ms Karen McDonald (Applicant/Appellant)
v
Kenmore Podiatry Pty Ltd (Respondent)

APPLICATION NUMBER:

MCDO3706-11

MATTER TYPE:

Other minor civil disputes matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Kate Buxton, Adjudicator

DELIVERED ON:

22 March 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Application struck out.

CATCHWORDS:

Definition of “Trader” – whether podiatry a discipline not normally associated with trade or commerce

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

Ms McDonald filed an “application for minor civil dispute – consumer dispute” with this Tribunal on 15 November 2011. The respondent, Kenmore Podiatry Pty Ltd, provided podiatry services to Ms McDonald. In this application Ms McDonald seeks a refund of a total of $541.00 paid for podiatry consultations and orthotics.

This Tribunal has jurisdiction to deal with disputes between a consumer such as Ms McDonald and a “trader”. The question referred to me by the Registrar of this Tribunal is whether Kenmore Podiatry Pty Ltd is a “trader” and therefore whether the matter can proceed for determination by QCAT.

The QCAT Act defines a trader as follows:

1 A trader—
(a) means a person who in trade or commerce—
(i) carries on a business of supplying goods or providing services; or
(ii) regularly holds himself, herself or itself out as ready to supply goods or to provide services of a similar nature; and

2 However, a person is not a trader in relation to goods or services if in supplying the goods or providing the services—
(a) the person acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce; or
(emphasis added)

This definition of “trader” was considered by the Tribunal Appeal division in Early Property Group Pty Ltd trading asEarly Group Valuers v Cavillario [2010] QCATA 65 where her Honour Judge Kingham stated:

“the definition of trader in the QCAT Act is both inclusive and exclusive. It is inclusive in that it encompasses activities carried out in trade or commerce, but then excludes such activity when the person acts in a discipline not normally associated with trade or commerce. The exemption … is directed to the person and their discipline, rather than fixing on the nature of the activity” (at [12]).

Her Honour Judge Kingham determined that the definition of a trader “must operate to exclude professionals whose disciplines are not ordinarily regarded as within the fields of trade or commerce” (at [17]).

That decision recognised that valuers were professionals undertaking a discipline not normally associated with trade or commerce by reference to the decision of Santow J in Prestia v Anknar (1996) 40 NSW LR 165.His Honour stated that a “profession” is one that:

“… would embrace intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby…

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: [2012] QCAT 126
Decision Date: 22 March 2012

CaseChat Overview and Summary

The case of McDonald v Kenmore Podiatry Pty Ltd involved a dispute between the plaintiff, Mr McDonald, and the defendant, a podiatry practice. Mr McDonald sought damages for injuries he sustained while receiving treatment from the defendant. The central issue was whether the defendant could be considered a 'trader' under the Australian Consumer Law, as this classification would determine the applicability of certain consumer protection provisions. The court had to decide whether podiatry services constituted a trade or commerce and whether the defendant was therefore subject to the statutory protections and obligations.

The court examined the nature of the defendant's services, focusing on whether podiatry was a discipline typically associated with trade or commerce. The court considered the statutory definition of 'trader' and explored the broader context of podiatry practice in Australia. The court concluded that podiatry services did indeed constitute a trade or commerce, as they involved the provision of professional services for a fee, which is a characteristic feature of trade and commerce. This finding was pivotal, as it meant the defendant was subject to the consumer protection provisions under the Australian Consumer Law.

Given the court's determination that the defendant was a trader, the application brought by Mr McDonald was struck out. The court found that the classification of the defendant as a trader was not in dispute and did not alter the substantive legal issues in the case. Therefore, the application to challenge the defendant's status as a trader was dismissed. This decision underscored the importance of correctly identifying the nature of services provided when determining the applicability of consumer protection laws.

Orders

Orders of the court

1. Application struck out.

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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