Sizintseva v Benowa Mansions Periodontal Specialist Centre

[2014] QCATA 249

CITATION: Sizintseva v Benowa Mansions Periodontal Specialist Centre [2014] QCATA 249

PARTIES:	Alla Sizintseva (Applicant/Appellant)
v
Benowa Mansions Periodontal Specialist Centre (Respondent)

APPLICATION NUMBER: APL243 -14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe, OAM

DELIVERED ON: 14 August 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – JURISDICTION  - where claim against periodontist for breach of contract – where claim dismissed for want of jurisdiction - whether debt or liquidated demand - whether grounds for leave to appeal

Spain v Union Steamship Co (1923) 32 CLR 138 (considered)
Pickering v McArthur [2005] QCA 294 (applied)
Alexander v Ajax Insurance Co. Ltd [1956] VLR 436 (considered)
Prestia v Aknar (1996) 40 NSWLR 165 (applied)
Early Property Group Pty Ltd v Cavallaro [2010] QCATA 65 (applied)
Bannick v Solar Energy Group Pty Ltd [2012] QCATA 148 (considered)

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 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Ms Sizintseva was a patient of Dr Latchman from Benowa Mansions Periodontal Specialist Centre. In 2010, Dr Latchman inserted two implants. The Centre warranted that work provided Ms Sizintseva returned to an annual check up, clean and x-ray.  Dr Latchman also inserted a temporary bridge.

2. Ms Sizintseva attended her first anniversary check up but she refused to have her teeth cleaned. Ms Sizintseva was late for her second annual appointment. At that time, she refused to have an x-ray. She also refused to have her temporary bridge replaced with a permanent bridge. Dr Latchman took the view that Ms Sizintseva’s refusal to proceed with the recommended work voided the warranty on the implants.

3. Dr Latchman continued to work on Ms Sizintseva’s teeth but in January 2014 she filed a consumer dispute claim for a refund of her out-of-pocket expenses relating to the implants of 2010. In February 2014, she filed a minor debt claim for the same amount and on the same basis. On 5 May 2014, the tribunal dismissed Ms Sizintseva’s claim for want of jurisdiction.

4. Ms Sizintseva wants to appeal that decision. She submits that the tribunal does have jurisdiction in its minor debt jurisdiction because “liquidated demand of money” includes a claim for breach of contract. She also submits that the appeal should be allowed because the subject is a matter of greater public benefit.

5. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1]QCAT Act, s 142(3)(a)(i).

   [2]Pickering v McArthur [2005] QCA 294 at [3].

6. Ms Sizintseva has referred the appeal tribunal to three cases in support of her application for leave to appeal. The first is Alexander v Ajax Insurance Co. Ltd[3] The decision of Sholl J in that case does not support Ms Sizintseva’s submission. He set out three ‘definitions” of liquidated demand, the last of which, relevantly was a claim for breach of contract:

   … provided that the claim was for a specific amount, not involving in the calculation thereof …

   [3][1956] VLR 436.

1. Ms Sizintseva claimed the full amount of her out-of-pocket expenses but that was not, in fact, her loss. She had the benefit of the implants. Dr Latchman was entitled to payment for his labour and expertise for inserting the implants. The only loss, if there was a loss, was the cancelled warranty. That loss was not a specific amount and was not capable of a simple calculation.

1. Ms Sizintseva also referred the appeal tribunal to Spain v Union Steamship Co[4]. The extract of that decision to which Ms Sizintseva referred, proves the difficulty in her application for leave to appeal. The High Court confirmed that a liquidated demand included a demand that:

… can be ascertained by calculation or fixed by any scale of charges, or other positive data …[5]

[4](1923) 32 CLR 138.

[5]Per Knox CJ and Starke J.

1. As I have already explained, Ms Sizintseva’s claim cannot be ascertained by reference to any scale of charges or positive data.

1. The last case Ms Sizintseva referred to is Bannick v Solar Energy Group Pty Ltd[6]. Mr Bannick filed a claim for breach of an agreement by which Solar Energy Group Pty Ltd was to pay him for work and expenses on presentation of an invoice. The President found that the claim as formulated gave the possibility that it was a liquidated demand and that tribunal should have heard Mr Bannick’s claim. That case can be distinguished from Ms Sizintseva’s claim, because her claim cannot be calculated according to the terms of an agreement.

   [6][2012] QCATA 148.

1. Ms Sizintseva’s claim is not capable of calculation by reference to any scale of charges or positive data. It is not a minor debt claim. It is not a consumer claim within the tribunal’s jurisdiction because the tribunal only has jurisdiction to consider a consumer claim against a trader. “Trader” is defined to include a person who carries on the business of supplying services[7] A person is not a trader if, in providing the services, the person acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce[8].

   [7]QCAT Act Schedule 3.

   [8]QCAT Act Schedule 3.

1. Periodontal work requires a high degree of training and skill. It is a profession and, therefore, claims against a periodontist are not within the tribunal’s jurisdiction.

1. There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused.