Paws & Claws Adoptions Inc v Colclasure - [2023] SADC 21

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
PAWS & CLAWS ADOPTIONS INC v COLCLASURE & ANOR
[2023] SADC 21
Judgment of her Honour Judge Deuter
6 March 2023
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - CONSUMER PROTECTION - MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS - CHARACTER OR ATTRIBUTES OF CONDUCT OR REPRESENTATION
TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION
The Respondents adopted a male rescue cat from the Appellant animal rescue shelter. A fee of $200 was paid to the Appellant. Eight weeks post-adoption, the cat was euthanised after being diagnosed with Feline Infectious Peritonitis (FIP). The Respondents claimed the cost of veterinary fees in relation to the treatment of the cat. These were $3,805.50.
The Respondents issued a claim in the Magistrates Court seeking that the Appellant pay the costs of the veterinary fees. It was alleged that the Appellant had breached s18 (misleading and deceptive conduct), and s54 (guarantee to acceptable quality) of the Australian Consumer Law.
A Minor Civil Review hearing was conducted on 11 October 2022. The Magistrate found:
1. The Appellant (Paws & Claws) had a duty to provide a fuller picture of the medical history of the cat to the Respondents;
2. The Respondents would not have adopted the cat if they had been provided with the medical history of the cat;
3. That the medical history of the cat would not have predicted that the cat would contract FIP;
4. But for Paws & Claws not giving the cat's medical history to the Respondents, they would not have adopted the cat and hence would not have accrued the veterinary fees associated with treatment and euthanising the cat.
5. Paws & Claws were liable for the veterinary costs incurred by the Respondents to the sum of $3,964.50.
Paws & Claws filed a Notice of Review of the Magistrates decision. They claimed that they should have been allowed to call their expert witness to give evidence and that the evidence did not support a finding that they had engaged in misleading or deceptive conduct.
Held
1. Whilst Magistrates are required to conduct proceedings in minor civil claims by means of an enquiry 'rather than an adversarial contest between the parties' and are neither bound by the rules of evidence, nor technicalities and legal forms, the fundamentals of a fair trial are not displaced.
2. Those principles include the opportunity to be confronted with material upon which a party is proposed to be contradicted, and the right to be given an opportunity to explain any matter upon which the court might make an adverse finding;
3. The Magistrate erred in making findings adverse to the Appellant when not considering the pleadings of both parties in the first instance, or permitting them to call their expert witness, Dr Brown.
4. On all of the evidence the Appellant did not engage in misleading or deceptive conduct in relation to the adoption and sale of the cat and did not breach their guarantee as to acceptable quality.
5. The Appellant is granted an extension of time to 14 November 2022 to commence the application for review.
6. Pursuant to section 38(7)(ii) of the Magistrates Court Act 1991 (SA) the judgment of the magistrate of 10 October 2022 in CIV-22-2511 in favour of Mr Colclasure and Ms Pagnozzi is rescinded. The order for costs made in that action is also rescinded.
7. There is a finding in favour of the Appellant, Paws & Claws, and judgement is substituted by which the Respondents' claim in CIV-22-2511 is dismissed.
8. No order for costs is made. Each party is to bear their own costs.
Magistrates Court Act 1991 (SA); Australian Competition and Consumer Act 2010 (Cth); Schedule 2 - The Australian Consumer Law (Cth); Australian Competition and Consumer Act 2010 (Cth); Statutes Amendment and Repeal (Australian Consumer Law) Act 2010 (SA); Fair Trading Act 1987 (SA); Acts Interpretation Act 1901 (Cth), referred to.
Harradine v District Court of South Australia [2012] SASC 96; Gillott v District Court of South Australia [2019] SASC 13; Trittenheim Pty Ltd v H & H Gill Nominees Pty Ltd (1994) 63 SASR 434; Griggs v Noris Group of Companies (2006) 94 SASR 126; Wilczynski v District Court of South Australia [2016] SASCFC 102; Robinson Helicopter Co. Incorporated v McDermott (2016) 331 ALR 5; Butcher v Lachlan Elder Realty Pty Limited (2004) 218 CLR 592; Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82; Ireland v WG Riverview Pty Ltd (2019) 101 NSWLR 658; Campbell v Backoffice Investments Pty Ltd and Anor (2009) 238 CLR 304; ; Vautin v By Winddown, Inc. (Formerly Bertram Yachts) and Anor (No 4) (2018) 362 ALR 702; Medtel Pty Ltd v Courtney (2003) 198 ALR 630; Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association [1968] 2 All ER 444; [1969] 1 AC 31; Dawson v Pacific Chase Investments (General) [2012] NSWCTTT 432; Freestone Auto Sales Pty Ltd v Musulin [2015] NSWCA 160; Prestige Auto Traders Australia Ltd v Bonnefin [2017] NSWSC 149, applied.
Twycross v Grant and Ors (1877) 2 C.P.D. 469, 544; BHP Billiton (Olympic Dam) Corporation Pty Ltd v Steuler Industriewerke GmbH [2009] SVC 322; Protec Pacific Pty Ltd v Steuler Services GmbH & Co KG [2014] VSCA 338, discussed.
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564; Walplan Pty Ltd v Wallace 8 FCR 27; The Commissioner for Consumer Protection v Armstrong [2012] WASC 206, considered.

PAWS & CLAWS ADOPTIONS INC v COLCLASURE & ANOR
[2023] SADC 21
PAWS & CLAWS V COLCLASURE & ANOR
Civil
Introduction

This is a review of a minor civil claim pursuant to s 38(6) of the Magistrates Court Act 1991 (SA) (the MCA).[1] The claim was brought by Mr Thomas Colclasure and Ms Loredana Pagnozzi against the rescue animal adoption service, Paws & Claws Adoptions Incorporated (Paws & Claws). They sought reimbursement of the costs of veterinary treatment in the sum of $3,805.50.
[1] CIV-22-002511.
The Appellant in this Review, Paws & Claws, was the Respondent in the Minor Civil Claim. Mr Colclasure and Ms Pagnozzi are in this judgment referred to jointly as the respondents.
The claim arises out of the adoption in November 2021, of a male rescue cat known as Alfie, for a fee of $200.00. The cat was part of a litter found in early August 2021 with no known background. He was the only cat to survive. However, within seven weeks of adoption the cat was ill to the extent that the respondents took him to their veterinary surgeon (vet). The cat was treated without effect. Exploratory surgery was then undertaken. A choice taken by the respondents. It was discovered that the cat had the untreatable illness Feline Infectious Peritonitis (FIP). The cat was subsequently euthanised.
The respondents contacted Paws & Claws after the cat’s death, seeking details of his underlying health. Veterinary reports from when the cat and his siblings were rescued were provided. These detailed that the siblings had all died or were euthanised. It was also found that the cat had suffered coccidia, giardia and ringworm infections before adoption. As a result, the respondents claimed the costs they had incurred in having the cat investigated, treated and euthanised, from Paws & Claws.
On 11 March 2022 the respondents issued proceedings in the Magistrates Court. Their claim was brought on the basis of alleged breaches of s 18 (misleading and deceptive conduct), and s 54 (guarantee to acceptable quality), of the Australian Consumer Law (the ACL). [2]
[2] Australian Competition and Consumer Act 2010 (Cth), Schedule 2 – The Australian Consumer Law.
After a hearing on 10 October 2022, a Magistrate entered judgment in favour of the respondents, in the amount of $3,805.50, plus costs of $159.00. A total sum of $3,964.50.[3].
[3] CIV-22-002511, FDN 15 Record of Outcome – Judgment.
On 14 November 2022 Paws & Claws filed a Notice of Review. They raised the following grounds for review:
1.Paws & Claws had not yet been provided the reasons for judgment.
2.Without the reasons for decision, they were unable to determine the viability of lodging an appeal.
3.That given the Magistrate had found all parties to be honest and truthful, Paws & Claws should not have been found to have engaged in misleading or deceptive conduct as per the claims made against them.
4.Information provided by the appellant expert witness, proved that the extent of the financial loss was not reasonably foreseeable.[4]
[4] CIV-22-012411, FDN 1 Notice of Review.
Application for Review
This review is conducted pursuant to ss 38(6) to 38(9) of the MCA. The Court may inform itself as it thinks fit, and in doing so, is not bound by the rules of evidence. The Court may rehear the evidence taken before the Magistrate. In hearing and determining the review, the Court must act ‘according to equity, good conscience and the substantial merits of the case, without regard to technicality and legal forms’.[5] It is important to note that this review is a review of the matter and not a review of the judgment.
[5] Section 38(7)(c) of the MCA.
Section 38(1) of the MCA sets out provisions which are applicable to the conduct of the minor civil action. These provide as follows:
(a)the trial will take the form of an inquiry by the Court into the matters in dispute between the parties rather than an adversarial contest between the parties;
(b)the Court will itself elicit by inquiry from the parties and the witnesses, and by examination of evidentiary material produced to the Court, the issues in dispute and the facts necessary to decide those issues;
(c)the Court may itself call and examine witnesses;
(d)the parties are not bound by written pleadings;
(e)the Court is not bound by the rules of evidence;
(f)the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
Sections 38(6) and 38(7) of the MCA require that the review be an examination of the process undertaken by the Magistrate. This is to determine whether there had been a trial by the Magistrate in accordance with those provisions.
In Gillott v District Court of South Australia,[6] Peek J discussed the meaning of the phrase ‘equity, good conscience and the substantial merits of the case’. Quoting from the decision of Olsson J in Trittenheim Pty Ltd v H & H Gill Nominees Pty Ltd,[7] he noted that the phrase must be construed in the context of the nature of the issues involved and, where appropriate, the clear purpose of the relevant statute. Olsson J went on to hold that in certain cases the Court should adopt a broad approach of common sense and common fairness, eschewing all legal or other technicality. In Griggs v Noris Group of Companies,[8] White J referred to the phrase in the context of meaning good sense and the natural justice of the matter. The expression meant that the decision maker was empowered to do whatever thought necessary to achieve fairness between the parties.
[6] [2019] SASC 132 [40]-[46].
[7] (1994) 63 SASR 434.
[8] (2006) 94 SASR 126 [31].
Given the nature of the minor civil review and its purpose to achieve an economical and efficient disposition of the matter, I consider that the phrase ‘equity, good conscience and substantial merits of the case’ requires the Magistrate to act according to good sense and the natural justice of the matter. To do what is necessary to achieve fairness between the parties in relation to their legal rights, whilst avoiding legal, or other technicalities. Regard must be had to the substance of the claim while ensuring a fair trial, including permitting the parties to have an opportunity to address the real issues in dispute.
The decision of this Court on review is final and is not subject to appeal.[9] I may affirm the judgment of the Magistrate, or rescind it, and substitute the judgment of this Court. I cannot remit the matter to the Magistrates Court.[10]
[9] Section 38(8) of the MCA.
[10] Section 38(7)(d)(iii)(B) of the MCA.
Conduct of the Review
In Harradine v District Court of South Australia,[11] Blue J set out the principles that apply to a review by the District Court of a minor civil action. In relation to the relevance of the facts found by the Magistrate, Blue J held:
1.The review is not in the nature of an appeal stricto sensu.
2.The review is not necessarily a hearing de novo in that the Court is entitled to have regard to the evidence adduced before a magistrate and may rehear that evidence.
3.The review is not necessarily an appeal by way of rehearing in that it is a “review” (not an “appeal”). The Court may inform itself as it thinks fit, the Court must act according to the substantial merits of the case and the Court may rehear evidence without being confined by the fresh evidence rules which apply to appeals by way of rehearing.
4. The Court can tailor the nature of the hearing to the circumstances. In a case where the review will not turn on findings of fact or credibility of witnesses, the Court might simply have regard to the evidence adduced before a magistrate and a magistrate’s findings of fact. In a case which does turn on disputed issues of fact or credibility, the Court might simply proceed to hear the evidence afresh.
5.If the District Court concludes that a magistrate made an error vitiating the judgment and had not made findings of fact necessary to determine the matter, it will be necessary for the Court itself to hear the evidence relevant to those findings of fact (as it does not have power to remit the matter for rehearing).
6.To the extent that the Court does itself hear evidence, it should proceed in a similar manner to that provided by section 38(1), namely adopting the form of an inquiry by the Court rather than an adversarial contest between the parties. Section 38(7) provides that the Court may inform itself as it thinks fit. It would be incongruous if the District Court were to adopt a radically different approach to the hearing, to that required to be adopted by a magistrate at first instance, given that there is no power of remitter.
[11] [2012] SASC 96 [40].
These principles were considered by Doyle J in Wilczynski v District Court of South Australia[12] where he found that s 38 of the MCA contemplated a range of different approaches that may be taken by the judge on review. Those approaches included:
1.Re-hearing all the evidence and deciding the matter entirely on that basis.
2.Hearing no evidence and determining the matter based entirely on the evidence in the Magistrates Court.
3.Adopting some hybrid approach involving the receiving of some evidence or the hearing or receiving of some additional evidence, but also having regard to the evidence before the Magistrate.
[12] [2016] SASC 51.
Doyle J held that there may be more than one approach open to the judge on review, and that the judge has a broad discretion as to how to proceed with the review.
In the circumstances of this case, I considered that the hybrid model was the appropriate way to proceed. The trial had proceeded by the parties’ giving their account of the relevant events, including the substance and nature of oral representations made to the respondents at the time the cat was adopted. These included those made by the cat’s foster carer and witness, Ms Susan Roberts, and the evidence of the treating veterinary surgeon, Dr Cassie Francesco. It was therefore important that I formed my own view as to the credibility and reliability of the parties. I heard submissions from each of the respondents and Mr Wayde Masters, representing Paws & Claws. I heard evidence from Dr Jeffery Brown, veterinary surgeon, and evidence from Ms Susan Roberts. I reviewed in detail the transcript of the evidence before the Magistrate.
I am mindful that at the hearing before the Magistrate, the pleadings were not addressed. While minor civil proceedings are not bound by the rules of evidence or by the pleadings, the Magistrate is bound to take into consideration all material evidence available to the court. The subject of this claim, and the legal issues in dispute between the parties, do arise from the pleadings.
I am not as constrained as an Appeal Court in interfering with findings that are based on the credibility of witnesses. I am not limited to interfering with the Magistrate’s finding of facts in circumstances only where they are demonstrated to be wrong, by incontrovertible facts or uncontested testimony, or are glaringly improbable or contrary to compelling inferences.[13] I also do not suffer, in conducting the review, from the disadvantage of not having seen or heard the relevant witnesses.
[13] Robinson Helicopter Co. Incorporated v McDermott (2016) 331 ALR 50 at [43].
Conduct of the trial in the Magistrates Court
Both respondents, and Mr Masters gave evidence. In addition, the following documents were handed up, although not tendered as exhibits:
1.Medical Records from Blakes Veterinary Surgeries for treatment of the cat between 2 and 12 August 2021.
2.Report from Port Adelaide Veterinary Clinic, printed on 22 February 2022, which provides the treatment history of the cat between 13 and 23 August 2021. The report included an entry of 10 February 2022 which expresses an opinion in relation to the health of the cat at the time of treatment and adoption, and an opinion about the level of knowledge that Paws & Claws may have had, or not had, in relation to the cat’s subsequent illness.
3.Patient History for ALFRED, from Midway Road Veterinary Clinic, for treatment of the cat between 23 August and 12 November 2021. The history outlines the treatment, and improving health, of the cat across the reported period. This culminated in the cat being desexed.
4.Patient History for Alfie from Greencross Vets for treatment between 19 January 2022 and 28 January 2022, when the cat was euthanised. The records include the text of an email to Ms Pagnozzi, dated 27 January 2022, which was separately handed up.
5.Endocrinology partial and final reports from UDEXX Laboratories to Greencross Vets, dated 25 January 2022
6.A bundle of invoices from Greencross Vets to Ms Pagnozzi of 19, 20 and 28 January 2022.
Evidence was taken from Dr Cassie Francesco, Veterinary Surgeon, called by the Respondents, and from Ms Susan Roberts, volunteer foster carer for Paws & Claws.
The Findings of the Magistrate
The Magistrate made the following findings:
a.That the Respondent, Paws & Claws, had a duty to provide a fuller picture of the medical history of the cat named Alfie to the Applicants.
b.The Applicants were truthful in their evidence that they would not have adopted the cat if they had been provided with the medical history of the cat, particularly relating to treatment on 13 August 2021.
c.That the medical history of the cat would not have predicted the cat contracting the disease FIP.
d.But for Paws & Claws not giving the medical history to the Applicants, the Applicants would not have adopted the cat, hence would not have accrued the fees associated with treatment and euthanising the cat.
e.Paws & Claws are liable for the costs of the Applicants, to the sum of $3,964.50
The Minor Civil Review
Determination of the Review

Paws & Claws is an incorporated body. The ACL applies to them by operation of section 18 of the Fair Trading Act.[14] They meet the definition of a charity, being an organisation pursuing a charitable purpose of relieving the suffering of animals.[15] While the ACL is silent on charities, the definitions include business not carried on for profit.[16] Goods include animals.[17] I consider that the offering of animals for adoption at a cost, albeit at a discounted rate, is within the contemplation of the legislation. As such I am satisfied that the pleadings before the learned Magistrate were correct to the extent they invoke Paws & Claws’ legal obligations in relation to the conduct of trade and commerce.
[14] s18(1)(b).
[15] Charities Act 2013 (Cth) s12(1)(a)(i).
[16] Australian Competition and Consumer Act 2010, Schedule 2 – The Australian Consumer Law, s2(1).
[17] Ibid.
The evidential burden in relation to a matter captured by the ACL is that of a ‘reasonable possibility’.[18] When assessing the evidence in this matter I will adopt that standard. I will apply it to the requirements of sections 18 and 54 of the ACL.
[18] Ibid.
Application for An Extension of Time
Paws & Claws sought an order for an extension of time to bring the review. They set out reasons for seeking the extension in their Notice of Review.[19] The granting of an extension was opposed by the respondents.[20]
[19] CIV-22-012411, FDN 1, Part 3. [1].
[20] FDN 3, Written Submissions [1], [2].
An application for review must be commenced within 21 days of the date of the judgment the subject of the review.[21] The application for review in this matter was filed on 14 November 2022. This was 35 days after the date of the judgment. Paws & Claws required an extension of time to instigate the review.
[21] UCR 214.1.
Pursuant to UCR 214.1(5), an application for review, and an application for an extension of time to commence that review, are to be heard at the same time. I proceeded accordingly. In seeking an extension of time to bring the review, Paws & Claws relied upon the following:
1. We were of the belief that we had 28 days to lodge an Appeal, however were waiting for the “reasons for Judgment” so we could make an informed decision as to whether there was any value in making an appeal.[22]
[22] FDN 1, Part 4. [1].
The respondents opposed the extension of time application on the following grounds: [23]
a. That the Appellant knew or should have known the period to file a Notice of Review was 21 days after the date of the judgment. The Appellant did not instigate the Review until 35 days after judgment, therefore the Rule was not adhered to, and the extension should be disallowed.
b. The Appellant instituted a Notice of Review only after the respondents had applied on 4 November 2022, to enforce the judgment after expiry of the 21 day period in which to institute a Review.[24]
[23] FDN 3, Written Submissions.
[24] CIV-22-002511, FDN 17.
In considering Paws & Claws’ application for an extension of time I applied good sense and natural justice of the matter as required by s 38(7)(e) of the MCA. The time delay in filing the Notice of Review was not significant at 14 days. There is no evidence before the court that service was further delayed. The respondents were aware that Paws & Claws disputed the Magistrate’s decision, and had filed a Notice to Review.
The reasons for the judgment of the Magistrate were not sent to the parties until 28 November 2022, well past the date for instigating a review. While there is no evidence that Paws & Claws made any attempt to gain access to the written judgment at an earlier stage, I take account of the fact that self-represented parties are not generally well versed in the procedural and administrative steps involved in accessing court-generated materials. I also note that neither the judgment nor transcript of the hearing before the Magistrate were available when the review file was forwarded to my chambers. The transcript had not yet been typed.
In determining whether to grant an extension of time, the Court must do justice between the parties. In considering the application I took account of the lack of availability of a record of proceedings, most relevantly the lack of the transcript of proceedings, and the extraordinary brevity of the ex tempore judgment of the Magistrate (four paragraphs).
I found that in the circumstances Paws & Claws was at a material disadvantage, particularly in a jurisdiction where parties are not legally represented. Applying the discretion afforded me by the MCA,[25] I granted an extension of time for the bringing of the review. I did so upon the basis that it would be inequitable to refuse to make the order on a technicality, or legal forms, and not consider the merits of the review.
[25] s38(7)(e).
While the delay in the filing the Notice of Review has led to further delays in the resolution of the dispute, I considered that if the application for review had merit, then it should be determined. This was particularly given the brevity of the reasons for the Magistrate’s decision. If the application was without merit, then any prejudice to the respondents could be ameliorated by the making of an appropriate award of post judgment interest. I granted Paws & Claws an extension of time to 14 November 2022 to commence the application for review.
Review of the Magistrate’s Decision
At the commencement of the review, the respondents indicated that they did not intend to call any further evidence and were satisfied that all evidence had been addressed satisfactorily during the trial. They relied upon the evidence before the Magistrate. However, Ms Pagnozzi did later question Paws & Claws as to why the cat had not been promoted at its regular café events where multiple cats are promoted, inferring this was because they knew he was not healthy. Mr Masters answered that the cat was taken to a café event because:
…ringworm can flare up at times in matters of stress…and because ringworm is unfortunately highly infectious, putting [the cat] into a room with 10 other cats risk[s] the other 10 being infected as well. [26]
I consider that this is not an issue relevant to the matters in dispute on the review
[26] T34.23-27.
Paws & Claws in opening, tendered by consent, an email from Mr Colclasure. The email sets out the respondents’ knowledge, at the time of adoption, of the cat’s health status.[27] It is not disputed that the cat had been unwell when first found. Paws & Claws’ case can be summarised as follows:
a.the parasitic infections the cat had suffered and recovered from, before adoption, do not lead to a conclusion that the cat would develop FIP;
b.all the documents filed on the trial in the Magistrates Court were not tendered, and were not considered by the Magistrate;
c.the cat’s foster carer, Ms Susan Roberts, honestly and fulsomely answered all questions asked by the respondents at the time of the adoption;
d.some facts were misstated or mischaracterised in the Magistrates trial, so were incorrectly weighed;
e.Paws & Claws had no reason to suspect the cat was pre-disposed to any illness other than those disclosed at the time of the adoption, specifically cat flu and ringworm;
f.the respondents did not adhere to the Paws & Claws Adoption policy;
g.the respondents were issued a full refund of the adoption fee.
[27] Exhibit A1: Email from Colclasure to Paws & Claws, dated 31 January 2022.
Paws & Claws sought to call Dr Jeffery Brown, a private vet who at times provided services to rescued animals. The respondents opposed him being called. This was on the basis that the evidence of Dr Francesco, given at trial was expert evidence about the cat’s pre-existing medical history, and it was unnecessary to hear further expert evidence.
Dr Brown had been arranged to give evidence at trial but for an unexplained reason had not arrived at the time it started. Paws & Claws asked to telephone him so that he could give his evidence. The Magistrate determined, without hearing Dr Brown, that his evidence would not be relevant. That he would not be saying anything different than Dr Francesco regarding FIP.
I determined that the Magistrate erred in not permitting Dr Brown to be called in the trial, as the evidence to be adduced from him was to be in relation to whether the conduct of Paws & Claws was misleading or deceptive, not why the cat may not have been adopted. In those circumstances I allowed Dr Brown to give evidence. I was prepared to adjourn proceedings following Dr Brown’s evidence if the respondents sought to recall Dr Francesco to give responding evidence. They did not seek to do so.
Evidence of Dr Brown
Dr Brown is a semi-retired vet with a general practice in mostly small animals. He has worked with Paws & Claws since around 2015. He outlined the protocols for assessing rescue animals. He gave evidence in relation to the extent of testing undertaken when providing an affordable service to a charity. He also detailed the testing that may be undertaken if a cat showed symptoms of an underlying condition or an illness. Dr Brown described the decision-making process which was undertaken with Paws & Claws before the cost of an external PCR or other expensive test was incurred. He explained what the results of a PCR test or other testing, in particular the faecal testing regime, could find. This included the types of infections that had in fact been detected in the cat.
Dr Brown’s evidence in relation to the decisions to be made in relation to undertaking external testing of rescue cats was:
[Y]ou've always got that, at the back of your mind, you know, how much do you spend on diagnosis, how much of that diagnosis is going to make any difference. You know, there's a value judgment all the time, and that's the problem with small-animal practice - you know, you're constantly making these assumptions sometimes, about what people want. You know, is it valid to do every test? Even if you did every test, you know, is that going to change your outlook, is it going to change your treatment. You know, it's not a simple thing.[28]
[28] T17.11-21.
Dr Brown explained the usual effects of coccidia, giardia and ringworm infections on cats. His opinion evidence was that kittens recover quickly from such infections when given proper nutrition, and that the infections have no lasting effect on their immune systems. His review of literature on pre-existing causes of FIP show no proven correlation between those three cat infections and FIP.
Dr Brown would have treated the cat differently once he became ill after adoption, given the symptoms displayed, and had he been exploring the nature and extent of the cat’s condition. This was before determining the treatments to administer to the cat. This was in contrast to the decisions made by the treating vet, particularly undertaking an expensive surgical option.
Under cross examination Dr Brown elaborated on the clinical processes and decision making in relation to a cat’s health, with particular reference to both diagnosis for a charity, and the difficulties of making a diagnosis of FIP. Dr Brown reviewed the cat’s earlier haematology report.[29] The report made findings of disease processes, resulting from either bacteria or viruses, but those processes did not identify which condition the cat actually had.
[29] Exhibit R2: Records for Greencross Paradise Veterinary Hospital, date of result 25 January 2022, haematology.
Dr Brown reviewed the assessments usually made of a rescue cat’s health ahead of adoption. He concluded on that basis that, the subject cat had been treated appropriately, for the symptoms of the illnesses he displayed when rescued. Subsequently the cat had stopped showing symptoms of ringworm; he had recovered from diarrhoea; he showed no respiratory symptoms; and he had been treated with benzimidazole and an antibiotic. The cat was subsequently twice vaccinated and was desexed under a general anaesthetic. That would not have taken place if the cat was not regarded as being healthy. Significant in Dr Brown’s evidence is his unambiguous statement: “For my clinical judgment there’s no evidence that he was immunocompromised.”[30]
[30] T26.27-28.
Dr Brown was asked to consider the views expressed by Dr Francesco, in particular the opinion that:
It is believed that kittens with a compromised immune system may be more likely to develop this [FIP] mutation, which may be the case with [the cat] given his litter’s history of repeat infections, diseases and litter deaths.[31]
(Emphasis added)
Dr Brown disagreed with that opinion, and stated there was no evidence to support it. Nor that the cat was immunocompromised.
[31] Exhibit R3: Email from Dr Francesco to Second Respondent 27 January 2022, [3].
Dr Brown was cross examined about other reported pre‑adoption symptoms displayed by the cat. Dr Brown saw no significance in any of those symptoms. He dismissed any relevance of a finding of a stress murmur as meaningless, without positing what the author could have meant by the inclusion of the adjective ‘stress’.
Under re-examination, Dr Brown confirmed the rarity of cats contracting FIP; that owners did not usually pay for annual blood tests for cats; and that the tools of examination informed his diagnoses to a large extent. Dr Brown confirmed that nothing in the records of the treating vets would indicate to him any long-term illnesses in the cat prior to his adoption by the respondents.
Evidence of Ms Susan Roberts
Ms Susan Roberts, the cat’s foster carer, gave evidence under cross examination. She set out the chronology of treatment and care of the rescue litter, including the subject cat. In particular Ms Roberts described the testing of pooled samples of faeces from the litter, which gave a positive result for coccidiosis and giardia. As a pooled test, it could not be concluded that the subject cat either had, or did not have, those infections. Her evidence was that the clinic that treated the cat, and euthanised the female sibling, had sent the subject cat home with the ‘all‑clear’. Ms Roberts who had fostered several litters of rescue cats, found no need to follow up further in relation to the cat.
If Ms Roberts had known the cat, or any cat, was predisposed to illness she would disclose it to prospective adopters. She had in fact done that by advising of the cat’s previous infection with cat flu, and a weeping eye. Ms Roberts testimony was clear when she stated:
[T]hat’s all that I had had the diagnosis for. Mild cat flu that we know can be, not recurring but it can flare a little under stress. That’s what I was advised of and that’s what I documented[32]
[32] T43.7-10.
It was established through re-examination that Ms Roberts was a volunteer foster carer for Paws & Claws. The role of volunteers for Paws & Claws does not accord strictly with the responsibilities of representatives or employees of other businesses.
The Competition and Consumer Act 2010 (Cth) and subsequent case law establishes that an agent, such as Ms Roberts, make representations on behalf of the principal, in this instance Paws & Claws. They also have the authority to act lawfully on the authority, and with the approval, of the principal.[33] The evidence of Ms Roberts’ activities, specifically vetting applicants for adoption, providing information to adopters and completing paperwork on behalf of the adoption agency satisfies the concept of apparent authority, so establishing Ms Roberts as a representative of Paws & Claws.
[33] Competition and Consumer Act 2010 (Cth) s 84(2), which by operation of the Act includes Sch 2, the ACL. Case law authority is found in Walplan Pty Ltd v Wallace (1985) 8 FCR 27, 37.
I find that Paws & Claws are responsible for representations made on its behalf by its agents, be they employed or volunteers. They are representations made for and on its behalf.[34]
Closing submissions - Mr Colclasure and Ms Pagnozzi
[34] Walplan Pty Ltd v Wallace (1985) 8 FCR 27, 37.
Ms Pagnozzi made a statement to the court before the final submissions which amounted to a statement of expectation in relation to the cat’s full health history being disclosed prior to adoption. Striking in that statement was that the treating vet called Ms Pagnozzi while the cat was anaesthetised, after surgery, to advise her of the extensive inflammation found through the cat’s intestine. I conclude from these submissions that the extent of the inflammation of the cat’s intestines was unknown to the vet before surgery. It was not suggested that before surgery a diagnosis of FIP was expected.
Ms Pagnozzi continued, stating that the cat was: “ – very thin – not failing to thrive but just a very thin cat with some diarrhoea issues, and it wasn’t until it became acute that then - ”[35] This is the only time in the trial, or the review, that there is any mention of the cat having diarrhoea issues post adoption. I am of the opinion that this observation is one that should have been put to both Dr Francesco in the trial, and to Dr Brown during the review, to ascertain opinion from the expert witnesses on whether this observation held any significance in the diagnosis of the health of the cat. Would either vet have offered the court a different opinion had that fact been available to them? The issue of post-adoption diarrhoea was not put to the expert witnesses to comment on. With no expert evidence I cannot take the post-adoption diarrhoea into account in determining this review.
[35] T50.19-21.
Ms Pagnozzi also made closing submissions that contradicted sworn evidence, and went beyond what was established in evidence, or could be reasonably inferred from the evidence.[36] I place little weight on the substance of those submissions.
[36] T51.220-30.
Mr Colclasure also made submissions which characterised the actions or inactions of Paws & Claws as misleading. Both respondents relied on the information provided at the time of adoption, which he characterised as insufficient. The respondents submitted that the absence of information detailing the cat’s health and treatment before adoption, available to Paws & Claws, was material in all subsequent decisions they made in relation to the treatment of the cat, and thereby the incurring of their consequential costs. He submitted that the cat’s short post‑adoption life of seven weeks, was enough to make out that it was not of an acceptable quality. This was in reference to the claim that the cat was not fit for purpose, and so invoking the standards established in s 54 of the ACL.
Paws & Claws submitted that, a successful claim under the ACL would only entitle the respondents to ‘repair, replace or refund’ of the goods. They cited the refund of the $200 adoption fee given to the respondents. There was no foundation to award damages for a breach of the ACL.
Paws & Claws’ case is that the cat had no history which suggested a predisposition to a mortal illness, such as FIP. There was no evidence that the cat was immunocompromised. Mr Masters confirmed that it was his submission that, if there was a finding of misleading conduct against Paws & Claws, the fate of the cat could not be sheeted home to them because any misleading conduct did not pertain to the illness that caused his death. This was based on the expert evidence of Dr Brown, that there was no evidence available or withheld which could connect the cat’s pre-adoption illnesses and conditions with the illness which required the cat to be euthanised.[37]
[37] T55.6-T56.3.
Law applicable to the Pleadings and Evidence before this Review
The Magistrate did not rely upon, or refer to, any law when determining the matter at trial. In this review I have applied the statutes relied upon by the respondents and the case law arising and germane to the facts. They are:
a.The ACL as enlivened by the Fair Trading Act 1987 (SA) (the ‘Fair Trading Act’). This is by the operation of the Statutes Amendment and Repeal (Australian Consumer Law) Act 2010 (SA), and the Competition and Consumer Act 2010 (Cth)
b.The ACL as interpreted by application of the Acts Interpretation Act 1901 (Cth).[38]
[38] At s17.

The pleadings allege that Paws & Claws breached both sections 18 and 54 of the ACL. These statutory provisions are:
18 Misleading or deceptive conduct
(1)A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
54 Guarantee as to acceptable quality
(1)If:
(a)   a person supplies, in trade or commerce, goods to a consumer; and
(b)   the supply does not occur by way of sale by auction;
there is a guarantee that the goods are of acceptable quality.
(2)Goods are of acceptable quality if they are as:
(a)   fit for all the purposes for which goods of that kind are commonly supplied; and
(b)   acceptable in appearance and finish; and
(c)   free from defects; and
(d)   safe; and
(e)   durable;
as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).
(3)The matters for the purposes of subsection (2) are:
(a)   the nature of the goods; and
(b)   the price of the goods (if relevant); and
(c)   any statements made about the goods on any packaging or label on the goods; and
(d)   any representation made about the goods by the supplier or manufacturer of the goods; and
(e)   any other relevant circumstances relating to the supply of the goods.
The circumstances of this matter require a range of case law to be considered, and applied to the facts, in the context of the ACL.
Factual conflict between the parties on pleadings in relation to the ACL.
The respondents seek compensation for the loss incurred by funding treatment and euthanasia of the cat. Paws & Claws submit that any breach of s 18 of the ACL by them would entitle the respondents to the “repair, replacement or refund” of the goods, being the cost of adoption of the cat. That is $200.
The ACL however enables an action for loss or damage against any person involved in a contravention of Chapters 2 or 3 of the ACL.[39] The initial pleadings of the respondents were made under these chapters. If Paws & Claws is found to have contravened any provision of the ACL, Chapters 2 or 3, then the respondents would be entitled to recover their loss or damage.
[39] At s 236.
Misleading or deceptive conduct
Essential to the findings in this Review is an analysis of what amounts to misleading or deceptive conduct.
In Butcher v Lachlan Elder Realty Pty Limited[40] (Butcher) the High Court set out what a court is to consider when determining the extent of ‘conduct’, and the subset of conduct it considers as ‘representations’.
[40] (2004) 218 CLR 592.
Justice McHugh described the role of the court as being to “examine the impugned conduct as a whole, not in isolated parts”.[41] He sets out the circumstances to be considered by a court when examining the conduct under review:
The question whether conduct is misleading or deceptive or is likely to mislead or deceive is a question of fact. In determining whether a contravention of s 52[42] has occurred, the task of the court is to examine the relevant course of conduct as a whole. It is determined by reference to the alleged conduct in the light of the relevant surrounding facts and circumstances. It is an objective question that the court must determine for itself. It invites error to look at isolated parts of the corporation's conduct. The effect of any relevant statements or actions or any silence or inaction occurring in the context of a single course of conduct must be deduced from the whole course of conduct.[43] (citations omitted)
Whether conduct is misleading or deceptive is a question of fact, as distinct from an opinion. The factual finding is to be based upon the whole course of conduct.
[41] Ibid, [102].
[42] Section 52 is a reference to the equivalent provision in the earlier legislation as s 18 of the ACL.
[43] (2004) 218 CLR 592, [109].
Misleading and deceptive conduct is not a single concept, or course of conduct. Conduct is misleading or deceptive if it induces, or is capable of inducing, error.[44] Conduct that objectively leads a person into error is misleading.[45] The assessment is an objective test. Justice McHugh established parameters to be considered when determining whether the conduct reaches the threshold of inducing or is likely to induce an error:
[I]n Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd[46], the Full Federal Court held that conduct is likely to mislead or deceive if there is a real and not remote chance or possibility that a person is likely to be misled or deceived. This is so even though the possibility of that occurring is less than 50 per cent.[47]
(Emphasis added)
[44] Ibid, [111] citing Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198 per Gibbs CJ; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at 589 per French J, Beaumont and Finkelstein JJ agreeing.
[45] Ibid, [111].
[46] (1984) 2 FCR 82 at 87.
[47] (2004) 218 CLR 592, [112].
The New South Wales Court of Appeal, in Ireland v WG Riverview Pty Ltd,[48] (Ireland) considered the conduct of a trader, and specifically, whether there had been deception. That is, whether conduct that misled was inadvertent or deliberate? Such an assessment is essential when determining whether conduct is misleading or deceptive, and places the onus of proof upon the respondent.
[48] (2019) 101 NSWLR 658.
The views of Bell ACJ are relevant in determining the significance of the actions of Ms Roberts when she made representations to the respondents before the cat was adopted. Was Ms Roberts making representations of fact, or of her honestly held belief? In Ireland Bell ACJ found that if the representations, objectively proved, had been ones known to be wrong facts, in that case about the lineage of a bull, they would have been misleading and deceptive. However if, as was the case in Ireland, the representations were of an honestly held belief, and the due diligence of the purchaser had not tested that honestly held belief, then the conduct did not amount to misleading or deceptive conduct.[49]
[49] Ibid, [17].
In distinguishing, or rather not, between statements of fact or opinion, Bell ACJ considered the case law to date when he states there is no relevant difference in principle between the expression of an opinion and a statement of belief. When distinguishing between a statement of belief or opinion, on one hand, and a statement of fact on the other, it “is to be viewed from the perspective of the person or ‘ordinary or ‘reasonable’ audience to whom the statement or representation is directed.”[50]
[50] Ibid, [30].
The test to be applied to whether Ms Roberts’ representations to the respondents were misleading or deceptive in this matter is thus:
…it is established that a statement or representation is or must have been understood by its target audience as one of opinion or belief, even though presenting at one level as one of fact, liability will not be strict; rather, it will generally depend upon an assessment as to whether or not the belief or the opinion was honestly held and “perhaps” whether or not the maker had a reasonable basis for the belief or opinion. Other than in cases of statements as to future matters (where the statutory presumption is engaged: see, for example, Competition and Consumer Act 2010 (Cth), Sch 2 — Australian Consumer Law, s 4), it will be for a plaintiff to establish the lack of reasonable basis for belief if misleading or deceptive conduct is to be established.[51]
(Emphasis added)
[51] Ibid, [34].
In Campbell v Backoffice Investments Pty Ltd & Anor (Campbell), Gummow, Hayne, Heydon and Kiefel JJ cite with approval McHugh J from Butcher, when they determine that whether conduct is misleading or deceptive is a question of fact to be decided by reference to all the relevant circumstances.[52]
[52] (2009) 238 CLR 304 at 341 [102], citing (2004) 218 CLR 592 at 625 [109].
In considering whether the representative of a vendor ‘knew or ought to have known’ a fact, they found that the estimated information available, was not the same as the actual information known after the transaction had completed. They found “[i]t would not be right, in these circumstances, now to find for the first time that when the share sale agreement was made [the vendor] knew or ought to have known that the estimate of EBIT was false.”[53] The result was that the reliance on an estimate at the time of a transaction was reasonable when that was the only knowledge available to the vendor in the normal course of business. It would not be right to apply subsequent knowledge, to find wrong the representations made at an earlier time, when the purchaser made their decision.
[53] (2009) 238 CLR 304 at 349 [135]. Of note, in Campbell, the vendor made written representations of what it expected future earnings to be, that is the reference to the EBIT in the quotation.
Guarantee as to acceptable quality
The concept of ‘acceptable quality’ has developed from an earlier concept of ‘merchantable quality’, firstly in the common law,[54] then through the predecessor of the ACL, the Trade Practices Act (Cth).
[54] Twycross v Grant and Ors (1877) 2 C.P.D. 469, 544, cited in BHP Billiton (Olympic Dam) Corporation Pty Ltd v Steuler Industriewerke GmbH [2009] SVC 322 and Protec Pacific Pty Ltd v Steuler Services GmbH & Co KG [2014] VSCA 338.
The test of acceptable quality is again an objective test. It addresses, relevantly, the fitness for purpose of an item; its appearance; its freedom from defects; and whether or not the item is safe and durable. The scope of ‘acceptable quality’ is set out in Vautin v By Winddown, Inc. (No 4).[55] This includes what relevant information it is reasonable for the consumer to know, including “after‑acquired knowledge”.[56] This is the case before me when considering the respondents’ call for records between the time the cat was euthanised and the trial.
[55] (2018) 362 ALR 702, [142].
[56] Ibid, [143] citing Prestige Auto Traders Australia Ltd v Bonnefin [2017] NSWSC 149 at [132].
The standard set is an objective one, and is to be measured against what a reasonable consumer would expect. The time when the goods are assessed is the time of supply.[57] Relevant information acquired later is to be considered upon the basis of whether the customer could reasonably have expected it to have been available at the time of purchase.
[57] Ibid, [263].
The issue of ‘after-acquired’ knowledge is relevant to the claim before the court. In Medtel Pty Ltd v Courtney,[58] Branson J considered the various approaches to ‘after-acquired’ knowledge when assessing a consumer’s reasonable expectation of quality. She applied the approach of Lord Pearce in the Hardwick Game Farm Case: [59]
But what additional after-acquired knowledge must one assume? Logic might seem to indicate that the court should bring to the task all the after-acquired knowledge which it possesses at the date of trial. But I do not think that this is always so. For one is trying to find what market the goods would have had if their subsequently ascertained condition had been known. As it is a hypothetical exercise, one must create a hypothetical market. Nevertheless, the hypothetical market should be one that could have existed, not one which could not have existed at the date of delivery.[60]
[58] (2003) 198 ALR 630, at 653 [69]-[70].
[59] Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association [1969] 1 AC 31.
[60] Ibid, 118-119.
Case law on comparable facts
In Dawson v Pacific Chase Investments (General)[61] (Dawson) a horse was purchased for the purpose of harness racing. The purchaser did not have an independent veterinary assessment of the horse before purchase. He relied on the general reputation of the seller. However, the colt had been involved in an accident prior to the sale. The treating vet did not find any evidence of an underlying condition which would render the colt unfit for harness racing. The colt manifested such a condition within 8 days of sale.
[61] [2012] NSWCTTT 432.
The Tribunal reasoned that if the condition was present at the time of sale, it would amount to a breach of the implied warranty that the goods [horse] be free from defects and fit for the purpose for which it was sold, namely harness racing. The issue for determination was whether, on the balance of probabilities, the horse was suffering from the condition at the time of the sale. The Tribunal accepted expert evidence that the condition was one which developed progressively over many months. The Tribunal therefore found on the balance of probabilities, that the horse was suffering from the condition at the time of sale, and was satisfied that the Applicant would not have purchased the horse if the defect had been drawn to his attention. The horse was not of acceptable quality as defined by s 54 of the ACL. There was therefore a breach by the respondent of the implied warranty that the horse was of acceptable quality and free from defects. The Tribunal awarded the Applicant the refund of the cost of purchase on the return of the horse.[62]
[62] Ibid, [17]-[24].
In Freestone Auto Sales Pty Ltd v Musulin[63] (Freestone), like Paws & Claws, the Claim pleaded two breaches of the ACL: a breach of the statutory guarantee, contrary to s 54; and misleading or deceptive conduct, contrary to s18. This was in relation to the purchase of a second hand car. As in Paws & Claws, the customer claimed:
a.the seller had breached s 18 by his silence in relation to the condition of the vehicle, which the seller knew, but did not specify to the customer;
b.the seller owed the customer a statutory duty to supply a vehicle of acceptable quality, free from defects and durable;
c.the goods were not fit for purpose;
d.the seller failed to comply with the statutory guarantee;
e.that had the customer known of the history of the vehicle she would not have purchased the goods; and
f.the vehicle was unfit for the purpose for which it was supplied.
[63] [2015] NSWCA 160.
On appeal, Simpson J found that the representations of the vendor were not wrong, let alone misleading or deceptive. Therefore they “cannot rise to the level of establishing misleading or deceptive conduct.”[64]
[64] Ibid, [55].
It was found, in relation to the disclosure of facts, and the fair implications that could be drawn from those facts; that disclosure, that the vehicle had been written-off before being repaired for sale, was not an act of misleading or deceptive conduct regarding the car’s condition. Any omissions did not amount to misleading or deceptive conduct.[65]
[65] Ibid, [59]-[60].
At first instance, the Tribunal had found no breach of the statutory guarantee. It found no evidence of the identification or establishment of a defect for which the seller should reasonably have been aware, or which arose under the statutory obligations of the ACL. The court upheld the decision of the Tribunal.[66]
[66] Ibid, [64].
In The Commissioner for Consumer Protection v Armstrong[67] (Armstrong) the facts surrounding the sale of puppies was considered. This case provides an example of where animals were being sold, in a manner which breached the consumer protections of the ACL. While the circumstances of this case are analogous to those before the court, the facts are very different to the facts relating to the pre‑sale actions of Paws & Claws.
[67] [2012] WASC 206.
In Armstrong the vendor was selling puppies with implied representations as to their health and fitness for purpose, specifically in relation to vet checks, vaccinations and worming. The puppies were not however health checked or healthy. As a result there were breaches of an Enforceable Undertaking the vendor had entered into following eight earlier instances of her selling puppies contrary to her obligations under the ACL.[68] Each of the puppies for sale suffered from parvovirus, a disease that would have been obvious before sale. This resulted in them being euthanised in under ten days from purchase. Immunisation for parvovirus is inexpensive and routinely administered to dogs. Puppies contracting parvovirus suffer an inevitable death.[69]
[68] Ibid, [18].
[69] Ibid, [28]-[43].
The court found Ms Armstrong not only failed to honestly identify herself to consumers, but that she made false statements about all aspects of the condition of the puppies. The court ordered compensation for the financial loss suffered by the puppy purchasers.
Finding on Misleading Conduct
The testimony of Ms Roberts was, as the learned Magistrate found, sincere and open. She was a credible and reliable witness. Dr Jeffery Brown provided the court with a clear and comprehensive explanation of the veterinary processes and professional decisions made when providing services to Paws & Claws. I find him credible in this respect.
The undisputed facts are that Paws & Claws refunded the adoption fee paid by the respondents following the euthanising of the cat. I understand that this was the charity demonstrating good will, rather than accepting liability for the illness and subsequent death of the cat. To consider it otherwise would be to ignore the pleadings made in the trial and the review.
In assessing the conduct of Paws & Claws at the time of adoption, the representations of Ms Roberts is relevant conduct to be considered, together with the practices explained in evidence by Dr Brown.[70] I accept that Ms Roberts’ representations at the adoption interviews were honestly held beliefs, founded on her lengthy experience with rescue cats. Her disclosure of the facts relating to the condition of the cat’s siblings’ and their fate were candid. Her representations as to the health of the cat were founded on the cat’s vaccination status and the desexing procedure completed prior to the cat being made available for adoption. The undisputed fact is that Ms Roberts disclosed, at the time of adoption, what she knew of any health issues, including cat flu and weepy eyes. In my view her representations were fulsome and sincere. The respondents were told the cat was the only one to survive the litter, but was now well enough to undergo an anaesthetic for a desexing procedure.
[70] Test found in Butcher v Lachlan Realty Pty Limited (2004) 218 CLR 592, 625 [109].
The authority in Campbell[71] instructs that subsequent knowledge, not usually known to the vendor at the time of the transaction, should not be applied to find what the vendor knew or ought to have known at the time of the transaction.
[71] (2009) 238 CLR 304 at 349 [135].
The evidence of Dr Brown in the review, and the evidence of Dr Francesco at trial,[72] do not contradict each other in describing the clinical treatment decisions in relation to the cat, and in describing the difficulty in diagnosing FIP. Their evidence, taken together, satisfies me that Paws & Claws was not in a position where they ‘ought to have known’ of the cat’s illness (FIP). The three known infections suffered by the cat at rescue were not known to lead to a cat suffering FIP. In addition, there were no clinical signs by which Paws & Claws could have known that the cat was susceptible to suffering FIP. In fact, it was not known that the cat had contracted FIP until his abdomen was explored. Applying the test in Campbell, I find that Paws & Claws’ conduct was not misleading or deceptive.
[72] CIV-22-002511, T12-T15.
Finding on Guarantee of Acceptable Quality
In determining whether the cat was of acceptable quality, and whether Paws & Claws complied with their obligation to guarantee the acceptable quality of the cat, the standard is to be measured by the expectation of the reasonable consumer. Mr Colclasure stated on the review that his expectation was that the cat would live more than seven weeks. This is a reasonable expectation.
However, the decision in Vautin instructs[73] that the time of supply is the time when the acceptable quality of goods is to be assessed. The facts of this matter are that the respondents assessed the cat as being of acceptable quality at the time he was adopted.
[73] (2018) 362 ALR 702; [2018] FCA 426, [142].

The issue becomes how to determine the relevance of the ‘after-acquired’ knowledge of the cat’s health pre-adoption as contained in vet records and the subsequent contraction of FIP. I apply the approach of Lord Pearce, as adopted in Medtel, specifically that “the hypothetical market should be one that could have existed, not one which could not have existed at the date of delivery”[74].
[74] Medtel Pty Ltd v Courtney [2003] FCAFC 151; (2003) 198 ALR 630, at 653 [69]-[70].
The evidence of Dr Brown and Dr Francesco is that the cat’s records could not have, with any certainty or confidence, predicted the cat’s subsequent diagnosis of FIP. The evidence in the trial goes further. Dr Francesco gave evidence that she called Ms Pagnozzi while the cat was anesthetised, following the discovery of the state of the cat’s intestines to tell her of the finding of FIP. This leads to an inference that none of the vets who had treated the cat at the post‑adoption treating clinic had identified the cat’s illness as FIP until they opened the cat’s abdominal cavity to reveal the condition of his intestines. They did not know what they were looking for. If they had, as an incurable illness, they would not have needed to perform surgery to reach a diagnosis.
The weight of knowledge, which was suggested by the disclosed history of the cat, but not disclosed at adoption is analogous to the facts in Freestone, where the purchasers were advised the car had been in an accident and repaired but did not know of a latent defect. In Freestone the court set out what must be considered. This includes what information is provided; what detail was provided; the availability of information to the purchaser; and the court’s determination as to the significance of the available information. What is disclosed and what was the effect of that disclosure? On the tests in Freestone,[75] I find that there is no breach of the statutory guarantee. There has been no identification or establishment of a ‘defect’ in the cat of which Paws & Claws should reasonably have been aware, or which arose under the statutory obligations of the ACL.
[75] Freestone Auto Sales Pty Ltd v Musulin [2015] NSWCA 160, [64].
The diagnosis as to whether the cat had the fatal condition FIP, or its early antecedents at the time of supply, is not found, on the balance of probabilities, in the evidence of either vet who gave evidence. The earlier infections suffered by the cat would not have, in the ordinary course, have led to FIP. This distinguishes this case from the circumstances in Dawson, where the Tribunal accepted the expert evidence that the condition which manifested within eight days of sale had incubated and developed progressively over many months. That is just not the evidence in the case before the court. On the test set out in Dawson[76], I find that Paws & Claws did not breach the implied guarantee of acceptable quality.
[76] [2012] NSWCTTT 432, [17]-[20].
I now turn to the provisions of s54(3), being matters to be considered when determining acceptable quality pursuant to s54(2) of the ACL. The facts before me contrast with those in Armstrong, though the circumstances provide the nearest comparison of goods traded, in all available case law. Paws & Claws promote their service as an adoption agency for rescued animals. This must be contrasted with an animal breeder. I have found that the representations made by Ms Roberts were not misleading or deceptive. The nature of the goods, being rescued cats, were not held out to be other than that. Their full background is not known. In this case, the disclosure of the cat being the sole survivor of the litter was relevant information provided to the respondents before they chose to purchase the cat. But even that evidence does not establish that the cat was destined to suffer from FIP.
When considering the test objectively, as set out in Vautin, I find that the cat, at the time of supply, was of acceptable quality. As such I find no breach of section 54 of the ACL by Paws & Claws.
Conclusion
I find that the respondents have not established a claim against Paws & Claws, pursuant to the provisions of the ACL. There should be judgment in favour of Paws & Claws.
Orders
1.I grant Paws & Claws an extension of time to 14 November 2022 to commence the application for review.
2.Pursuant to section 38(7)(ii) of the MCA I rescind the judgment of the magistrate of 10 October 2022 in CIV-22-2511 in favour of the respondents. I also rescind the order for costs made in that action.
3.I find for the appellant, Paws & Claws, and substitute a judgement by which the respondents’ claim in CIV-22-2511 is dismissed.
4.I make no order for costs. Each party is to bear their own costs.