Swiatek v Sanheaven Staffordshires
[2013] QCATA 300
•30 October 2013
| CITATION: | Swiatek v Sanheaven Staffordshires [2013] QCATA 300 |
| PARTIES: | Sean Michael Swiatek (Appellant) |
| v | |
| Kimberlee Fitzgerald (trading as Sanheaven Staffordshires) (Respondent) |
| APPLICATION NUMBER: | APL372-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 30 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The order of the primary tribunal is set aside, and in lieu thereof, order that the respondent pay to the appellant, within 14 days of notification of this decision, the sum of $1,450.00. 4. No order as to costs. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – CONSUMER DISPUTE – consumer contract – purchase of dog – particular purpose made known to supplier – animal as show dog and for breeding purposes – physical condition rendering it unsuitable for those purposes – whether or not defect a pre-purchase genetic condition – direct uncontradicted evidence to that effect – dismissal of claim unsupported by evidence – whether error of law – leave to appeal granted – appeal allowed Fair Trading Act 1989 (Qld), s 16 Competition and Consumer Act 2010 (Cth), Schedule 2 Australian Consumer Law ss 2, 3, 23, 55, 259, 262, 276 Uniform Civil Procedure Rules 1999 (Qld), r 428 QCAT Practice Direction No 4 of 2009 Quintano v B W Rose Pty Ltd [2008] NSWSC 956 Briginshaw v Briginshaw (1938) 60 CLR 336 |
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.
REASONS FOR DECISION
This dispute is about a Staffordshire bull terrier named “Sanheaven Kiss Thiss”, also known as Emily. I prefer the nickname.
The appellant purchased Emily for $1,800 from the respondent on or about 9 August 2012, intending to use her as a show dog and for breeding purposes.
Those intentions and requirements were communicated to the respondent on 7 August 2012.[1]
[1] Email Sean Swiatek to Kim Fitzgerald Tuesday 7 August 2012.
On or about 14 August 2012 Emily was delivered from the respondent’s premises at Clermont to the appellant at Daisy Hill Brisbane, at a cost of $209.05.
On 4 March 2013 Emily was found to be suffering from entropion[2] and demodectic mange.[3]
[2] A malformation of the eyelids.
[3] Report of Dr Malina Fielder, veterinary surgeon to Eleanor Swiatek 4 March 2013.
In a second expert opinion obtained by the appellant, the diagnosis of entropion was confirmed, and in the opinion of that reporter, the defect is congenital. Accordingly the animal is unsuitable for breeding purposes, and while surgery would probably correct the defect, showing her competitively is strongly discouraged.[4]
[4] Report of Dr M E Bernays, BVSc (Hons Cl I, Univ of Sydney), undated.
Although neither of these reports is in the form required by rules of practice[5] they were apparently treated as evidence without objection on that ground.[6] They are not contradicted by any competent witness.
[5] QCAT Practice Direction No 4 of 2009, adopting (inter alia) Rule 428 of the Uniform
Civil Procedure Rules 1999.
[6] In any event, informal expert reports may be admitted as a matter of discretion: QCAT
Act s 61, Quintano v B W Rose Pty Ltd [2008] NSWSC 956; Oates v Cootes Tanker Service Pty Ltd [2006] 2 Qd R 42; [2005] QSC 213.
On 8 March 2013 the appellant lodged an application in the Tribunal, initiating a minor civil dispute on these grounds –
... orders for breaches of the Australian Consumer Law (ACL) and in particular the statutory consumer guarantees. The pedigree registered dog ... is (i) not of acceptable quality and (ii) not fit for the specific purpose of conformation showing and breeding, which was specifically brought to the respondent’s attention prior to purchase. The genetic conditions of demodectic mange and entropion mean that [Emily] can never be shown due to de-sexing and eyelid surgery and is [sic] therefore a major fault.
The respondent has continually failed to comply with requests [for] ... a refund as required by the ACL and ... attempts to rely on the contract we signed despite that it ... attempts to (i) exclude or restrict the statutory guarantees (ii) limit the remedies available for a breach of statutory guarantee and (iii) contains unfair terms.
The respondent has made fraudulent misrepresentations in an attempt to avoid payment.
The appellant seeks a refund of $1,450.
The primary tribunal rejected the appellant’s claim, holding that failure to comply with the guarantee was due only to a cause independent of human control that occurred after the goods left the control of the supplier.[7] Essentially the case for the appellant is that, in so doing, the tribunal fell into error.
[7] ACL s 259(5).
In his submissions on appeal the appellant seeks to enlarge the grounds set out in the notice of dispute, embroidering the original plea of breach of guarantee with scattergun allegations of “numerous misrepresentations”, contempt of the tribunal and a demand that penalties be applied. It is deplorable that these attempts to widen the dispute are peppered with such insulting references to the primary tribunal as “botch[ing] the hearing”, “utterly incompetent”, “abject[ly] fail[ing] to understand the facts”, making “outlandish claims”, and displaying “actual bias”, with gratuitous advice that one of the adjudicators “should not be allowed to adjudicate any matter until he is trained how to treat parties professionally”. (Who is the true contemnor?) There are also charges of fraud, probably made without due appreciation of the extent to which they effectively raise the civil standard of proof[8] and the duty to particularise.
[8] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362; Watson v Foxman (1995) 49
NSWLR 315; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at [2] per Mason CJ, Brennan, Deane and Gaudron JJ.
Irrelevant, extraneous and scandalous allegations aside, it is sufficient to consider the allegation that Emily is not fit for a disclosed purpose.
That is a matter now governed by the Australian Consumer Law (ACL), set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and incorporated in the law of this State.[9]
[9] Fair Trading Act 1989 s 16.
Section 55 of the ACL materially provides:
Guarantee as to fitness for any disclosed purpose etc. (1) If: (a) a person (the supplier) 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 reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit.
(2) A disclosed purpose is a particular purpose ... for which the goods are being acquired by the consumer and that ... the consumer makes known, expressly or by implication, to ... the supplier....
It is undisputed that the respondent is a supplier, the appellant a consumer, and the subject sale a consumer contract within the meaning of the ACL.[10] There is no evidence that the “rejection period”[11] expired before the action was commenced. Exclusion of terms imposed by the Act is prohibited.[12]
[10] ACL ss 2, 3, 23.
[11] ACL ss 262(1)(a), 262(2).
[12] ACL s 276.
Evidence of the appellant’s communication to the respondent of a particular purpose is noted above.[13]
[13] Paragraphs [2] and [3], above.
In the event of non-compliance with a section 55 “guarantee” the consumer has a statutory cause of action against the supplier.[14] As the statutory term “guarantee” suggests, liability for non-compliance is strict[15] and objective.[16] It is not to the point to say (as the primary tribunal seems to have held) that an already-existing fault was detected after the sale occurred. Suppliers may be forgiven for thinking that the bias of the law is unduly populist, but any such argument must be addressed to legislators, not to the courts.
[14] ACL s 259(1).
[15] Fulcher & Ors v Knott Investments Pty Ltd & Ors [2012] QSC 232.
[16] Australian Competition and Consumer Commission v Glendale Chemical Products Pty
Ltd (1998) 40 IPR 619; [1998] FCA 180.
The appellant’s uncontradicted expert evidence shows that the non-compliance amounts to a ”major failure”,[17] and in that event the consumer may elect to retain the goods and sue for any reduction in their value below the price paid.[18] That is the appellant’s choice.
[17] ACL s 259(3).
[18] ACL s 259(3)(b).
The respondent’s case depends not on section 259(2) of the ACL (as held by the primary tribunal), but on a submission that the defect was non-genetic, or if genetic, was undetectable and unknown to her at all material times. The respondent tendered statutory declarations and veterinary certificates by the owners of Emily’s parents[19], denying that they had the defects complained of, but this material does not dispose of the evidence of the appellant’s experts, which is specific to Emily. Similarly inconclusive is the appellant’s claim of defects found in one of Emily’s siblings, some 10 weeks after Emily’s purchase.[20]
[19] Declarations of Linda Kathryn Kelly and Heidi Davcik dated 19 February 2013, with
annexures.
[20] Submissions on appeal paragraph 89(k).
The only direct evidence of a pre-purchase defect in Emily is to be found in the opinion of Dr Bernays, a registered specialist with eighteen years’ experience in the field of veterinary ophthalmology, who has actually treated Emily.[21] His opinion discounts other possible causes of her entropion, namely muscular spasm or physical injury, in favour of the genetic explanation. The primary tribunal’s implicit preference for some unspecified post-sale cause simply lacks evidentiary support, and is therefore an error of law.[22] The appropriate ground of appeal is not merely arguable[23], but palpable. It follows that leave to appeal should be granted and the appeal allowed.
[21] Report of Bernays, paragraph 5.
[22] Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 481, 483; Poricanin v
Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 at 424; East Melbourne Group Inc v Minister for Planning [2008] VSCA 217.
[23] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v
Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18]; Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19].
The quantum claimed is not challenged, and appears reasonable, having regard to the significantly reduced value of the animal, and to expenses arising out of, or in connection with the purchase.
The appellant’s claim for costs is not supported by any sufficient reason for departing from the strong presumption in section 100 of the QCAT Act. There will be no order as to costs.
ORDERS
1. Leave to appeal is granted.
2. The appeal is allowed.
3. The order of the primary tribunal is set aside, and in lieu thereof, order that the respondent pay to the appellant, within 14 days of notification of this decision, the sum of $1,450.00.
4. No order as to costs.
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