The Handmade Food Co Pty Ltd v Biotech Laboratories Pty Ltd

[2022] QCATA 47

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

The Handmade Food Co Pty Ltd v Biotech Laboratories Pty Ltd  [2022] QCATA 47

PARTIES:

THE HANDMADE FOOD CO PTY LTD

(applicant)

v

BIOTECH LABORATORIES PTY LTD

(respondent)

APPLICATION NO:

APL011-21

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON: 

13 April 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

The application for leave to appeal is dismissed

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL CLAIM – CONSUMER CLAIM AS COUNTERCLAIM – JURISDICTION – where consumer claim dismissed for want of jurisdiction – whether claim a minor civil claim within the meaning of the Act – whether laboratory a trader within the meaning of the Act – whether statutory exception applies to microbiological serves – whether services of laboratory involve a discipline not ordinarily regarded as within the field of trade or commerce – where exception is deemed applicable – where application for leave dismissed

Fair Work Act 2009 (Cth)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 11, s 32, s 48, Third Schedule
Aguilar v Enalig [2014] QCATA  219
Amos v Walter [2021] QCATA 105
Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215

Bradfield v Federal Commissioner of Taxation (1924) 34 CLR 1

Cameron v Cole (1944) 68 CLR 571

Carr v Inland Revenue Commissioners [1944] 2 All ER 163
Currie v Commissioners of Inland Revenue [1921] 2 KB 332

Davy v Ryter Planning Pty Ltd [2010] QCATA 96
Early Property Group Pty Ltd (t/a Early Group Valuers) v Cavallaro [2010] QCATA 65

Grommen v Hawes [2018] QCATA 49

Gubier v Queensland Department of Housing and Public Works [2020] QCATA 23

Holman v Deol [1976] 1 NSWLR 640

Hope v Brisbane City Council [2013] QCA 198

Kommouna & Anor v A W & K J Reid Pty Ltd (t/a Reid Real Estate APL313 of 2017

McDonald v Kenmore Podiatry [2012] QCAT 126

Minister for Home and Territories v Teesdale Smith (1924) 45 CLR 120
Morales v Murray Lyons [2010] QCATA 87
Peng v Darley Properties Pty Ltd (t/a L J Hooker Caboolture-Morayfield APL010-21
Prestia v Aknar(1996) 40 NSWLR 165

Robbins Herbal Institute v Federal Commissioner of Taxation (1923) 32 CLR 457
Social & Community Welfare Services (State) Award, Re (1984) 8 IR 364

Watkins v QBSA [2013] QCAT 535

Willoughby v Clayton Utz (No 2) (2009) 40 WAR 98
Wong v Ong [2015] QCATA 51

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Introduction 

1. The applicant (‘Homemade’) is a food manufacturing company. The respondent (‘Biotech’) is a biological testing laboratory accredited by the National Association of Testing Authorities (NATA).

2. At the material time Homemade sent samples of its products to Biotech to ensure that they were fit for human consumption, and Biotech duly provided scientific reports to Handmade. All such reports were checked and signed by one of Biotech’s two qualified microbiologists, each of whom is an approved NATA signatory.[1] One of them, namely Glen Pinna, holds degrees in microbiology from the QIT and the University of Queensland, and has practised for 42 years. The other has some 20 years’ experience and holds an Associate Diploma and a Master’s degree in microbiology.[2]

   [1]Transcript of hearing 30 October 2020 (‘T’) page 17 line 40.

   [2]T page 18 lines 3, 7 and 10.

3. In June 2018 Biotech reported that four samples of Handmade’s produce were infected with E coli bacillus. Biotech admits that this report was incorrect,[3] due to `a procedural error made by a staff member’.[4]

   [3]Affidavit of Glen Pinna filed 13 June 2020 page 1 (no paragraph number).

   [4]Email Biotech to Handmade 19 November 2018.

4. It caused great concern to the Handmade company as its managing director explains:

   It goes without saying that releasing food with micro issues that can result in food poisoning is a massive issue for a food company.[5]

   [5]Affidavit of Kirsty Williamson filed 17 July 2020 paragraph 4.

   Damages claim foreshadowed

5. Handmade complains that `for three months our company spent ... time and money trying to find the source of the problem ... which was completely wasted’.  `The decision to perform additional testing, the dumping of stock, and all the time, effort and money ... was a direct result of ... the Biotech false positive results’.[6]

   [6]Ibid paragraphs 7 and11.

6. Nothing daunted, on 27 December 2018 Biotech commenced an action against Homemade for unpaid testing fees amounting to,$24,109.98.

7. This provoked a response from Homemade counter-claiming $24,448.18 for `testing over and above the normal testing’ and for `product dumped, internal labour and other costs associated with these incorrect test results.’[7]

   [7]Response to minor civil dispute filed 15 February 2019.

8. Homemade redeemed the procedural error of filing a response to a minor debt claim[8] by filing an application presenting its damages claim as a separate action.[9] In due course the parties’ respective applications were tried together.[10]

   [8]QCAT Act s 48(3).

   [9]Application filed 14 September 2020 -  minor civil dispute (consumer dispute).

   [10]T page 2 line 26.

   Homemade counterclaims

9. Homemade did not deny that the amount claimed by Biotech was owed. Instead it relied on a plea that the Biotech’s claim of $24,109.98 was expunged by Homemade’s claim of $24,448.18 for damages.

   Primary decision

10. At the trial on 30 October 2020 the tribunal awarded Biotech $23,598.98, after deducting $520 for fees charged for the defective analyses. Effectively if not formally[11] the tribunal dismissed Handmade’s claim on jurisdictional grounds. It is against that dismissal that Handmade seeks leave to appeal.[12]

    [11]The orders made do not formally dismiss Handmade’s claim but the reasons plainly do.

    [12]Application Form 39 filed 5 January 2021.

Grounds of appeal

1. Consistent with the conduct of the trial Homemade’s application for leave does not dispute the finding that Biotech is owed $23,598.98. Materially it reads:

   We are looking for the right to appeal so that the court can consider granting [Handmade’s] cross-claim of $24,448 ... Our counterclaim [sic] is for the amount of money that Biotech cost us as a result of our reasonable reliance on false positive reports provided.[13]

   [13]Form 39 annexure Section 2.

2. The Tribunal declined to make any such order for these reasons:

   [Your claim is] a claim for damages.  It’s not a minor debt claim.  So if it was going to be a claim within our jurisdiction as a minor civil dispute, it would need to be a claim arising out of a contract between a consumer and a trader or a contact between two or more traders.  You’re certainly a trader.  But the difficulty with the definition of trader is that there is an exemption if the person acts in a discipline that is not ordinarily regarded as within the field of trade or commerce. ... There’s a long list of people who have, in the tribunal, been deemed to be outside the realm of trade and commerce.[14]

   [14]T page 32 lines 33 ff.

Two difficulties

1. That statement implies two jurisdictional obstacles in Handmade’s path. First, that the claim for damages does not meet the definition of a minor civil dispute. Second, that Biotech is not a `trader’ within the meaning of the QCAT Act (`the Act”).

2. The Tribunal is not a court of general jurisdiction; its powers of adjudication are defined in, and limited by the Act. In conferring jurisdiction to hear and decide a minor civil dispute[15] the Act materially defines that term as follows:

   (a) a claim to recover a debt or liquidated demand of money of up to the prescribed amount; or

   (b) a claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders, that is—

   (i) for payment of money of a value not more than the prescribed amount; or

   (ii) for relief from payment of money of a value not more than the prescribed amount …[16]

   [15]QCAT Act s 11.

   [16]QCAT Act Schedule 3 Dictionary.

3. Homemade’s claim is not a debt or liquidated demand; it is unliquidated in the sense that it is not fixed by prior agreement, but can be fixed (if disputed) by the decision of competent tribunal or court.

4. Further, the Act carves out an important exception (`the exception clause’) from its concept of a ‘trader’. The artificiality of a legislative definition does not affect its validity. An entity that comes within the following exception clause is not, after all, a `trader’, and so falls outside clause (b) of the definition of `minor civil dispute’ above:

   [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

   (b) the person is giving effect to the instructions of someone else who in providing the instructions acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce, and the goods supplied or the services provided are in all respects in accordance with the instructions.[17]

   [17]QCAT Act Schedule 3 Dictionary, definition of `trader’.

Exception clause

1. The exception clause is not unique to the QCAT Act. For example, a regulation made under the Fair Work Act 2009 (Cth) provides:

   The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal human resources, public relations and information technology specialists.[18]

   [18]Miscellaneous Award 2010 (Cth).

2. The subject exception clause speaks not of a “profession”, but of a “discipline”. It may be that the draftsman preferred “discipline” to profession” to avoid sterile, status-conscious demarcation disputes.[19] However, the semantic point seems to have no practical significance. It has not been the subject of comment or discussion in any relevant decision on the exception clause that I have been able to find. The Macquarie Dictionary defines `discipline’ as (inter alia) `a branch of learning’.

   [19]Cf  the comment of French J in Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 219, referring to T J Johnson Professions and Power (1972) at page 22.

3. The concept of a profession or discipline – as distinct from trade – refers to an occupation offering skilled services for profit. The concept is not closed or inflexible. As an English judge recognised some 70 years ago: `There are professions today which nobody would have considered to be professions in times past.’[20] Earlier still, a distinguished member of the High Court observed:

   [Profession] is an expression which I agree is not capable of exact definition … [depending on] the general understanding of the community. The word ‘profession’ is not one which is rigid or static in its signification; it is undoubtedly progressive with the general progress of the community.[21]

   [20]Carr v Inland Revenue Commissioners [1944] 2 All ER 163 at 167 per du Parcq LJ.

   [21]Bradfield v Federal Commissioner of Taxation (1924) 34 CLR 1 at 7 per Isaacs J; cited with approval in Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 219.

4. Twenty years earlier a distinguished member of the High Court of Australia observed:

   [Profession] is an expression which I agree is not capable of exact definition … [depending on] the general understanding of the community. The word `profession’ is not one which is rigid or static in its signification; it is undoubtedly progressive with the general progress of the community.[22]

   [22]Bradfield v Federal Commissioner of Taxation (1924) 34 CLR 1 at 7 per Isaacs J; cited with approval in Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 219.

5. In Prestia v Aknar[23] Santow J listed several indicia of a profession, as distinct from a trade:

   I am satisfied that references to `profession’ and `professional activity’ at the least include the traditional categories of medicine, dentistry and the law.[24] However, I consider the words `professional activity’ may well point to a wider range of those who provide services to the public in an analogous way to traditional professionals. They may, depending on how they are organised and conduct themselves, include, for example, taxation consultants, brokers, teachers … [A] working definition of [professional activity] … would embrace intellectual activity … professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification.[25]

   [23](1996) 40 NSWLR 165.

   [24]As recognised in Holman v Deol [1976] 1 NSWLR 640; Morales v Murray Lyons [2010] QCATA 87; Wong v Ong [2015] QCATA 51 at [11]

   [25](1996) 40 NSWLR 165 at 186.

6. Occupations to which this Tribunal has applied the exception clause, other than the indisputable `professions’, include valuers[26], town planners[27], podiatrists,[28] costs assessors[29], migration agents[30] and estate agents.[31]

   [26]Early Property Group Pty Ltd (t/a Early Group Valuers) v Cavallaro [2010] QCATA 65 at [20] per Deputy President: “[I]t can readily be accepted that valuers are professionals”. .

   [27]Davy v Ryter Planning Pty Ltd [2010] QCATA 96 (Wilson J, President).

   [28]McDonald v Kenmore Podiatry [2012] QCAT 126.

   [29]Amos v Walter [2021] QCATA 105.

   [30]Aguilar v Enalig [2014] QCATA  219 at [7].

   [31]Kommouna & Anor v A W & K J Reid Pty Ltd (t/a Reid Real Estate APL313 of 2017; Peng v Darley Properties Pty Ltd (t/a L J Hooker Caboolture-Morayfield APL010-21; Grommen v Hawes [2018] QCATA 49 at [10].

7. Ultimately the identification of a profession or discipline for purposes of the Act depends on a judgment of fact and degree[32], guided of course by the relevant authorities, and an assessment of “the general understanding of the community”[33] or the “ordinary reasonable man”.[34]

   [32]Currie v Commissioners of Inland Revenue [1921] 2 KB 332 at 340; Robbins Herbal Institute v Federal Commissioner of Taxation (1923) 32 CLR 457 at 461 per Starke J; Re Social & Community Welfare Services (State) Award (1984) 8 IR 364; BondCorporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 219.

   [33]Bradfield v Federal Commissioner of Taxation (1924) 34 CLR 1 at 7 per Isaacs J; Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 219 per French J.

   [34]Carr v Inland Revenue Commissioners [1944] 2 All ER 163 at 167 per du Parcq LJ.

   Resolution

8. In the light of examples above a reasonable man would have little difficulty in applying the exception clause to a laboratory supervised by two persons with degrees in microbiology and long experience in the field.

9. It follows that QCAT is unable to deal with Handmade’s present claim. That is unfortunate and highly inconvenient for Handmade, but the Tribunal has no alternative but to apply the Act as it stands. The exception clause is no mere matter of procedure that may be waived or varied; it is a mandatory limitation that determines the limits of QCAT’s authority.[35]

   [35]Cameron v Cole (1944) 68 CLR 571 at 584; Watkins v QBSA [2013] QCAT 535; Hope v Brisbane City Council [2013] QCA 198 at [11]; Gubier v Queensland Department of Housing and Public Works [2020] QCATA 4 at [9].

10. It follows that there is no appellable error in the primary decision, and leave to appeal must be refused.

    No estoppel

11. This decision is not a conclusion about the merits of Homemade’s claim. A dismissal for want of jurisdiction does not extinguish the cause of action involved.[36] Any further action by Homemade, at its discretion, would appropriately be based on professional advice.

    [36]Minister for Home and Territories v Teesdale Smith {1924) 45 CLR 120; Willoughby v Clayton Utz (No 2) (2009) 40 WAR 98.

    ORDER

    The application for leave to appeal is dismissed.