Gemshell Pty Ltd[2018] QCATA 27

REASONS FOR DECISION

1. [1]
   Swallow Fashion (Swallow) are dressmakers.  They take articles of clothing on consignment for dry cleaning which is performed off premises.
2. [2]
   Mrs Mooney asked them to dry clean her daughter’s wedding dress.  It was slightly soiled, particularly at the bottom hem, but apart from that there were no visible stains.
3. [3]
   When the dress returned from the dry cleaners to Swallow and they in turn returned it to Mrs Mooney it was found to have a large dark stain at the centre of the front and back bodice section.  The lace also had pulled threads across the bodice and arms.
4. [4]
   Mrs Mooney returned it to Swallow who sent it to dry cleaners again.  It came back with additional staining.
5. [5]
   Mrs Mooney commenced proceedings in the tribunal claiming $2,950, being half the purchase price and the price of the original costs of dry cleaning.  The tribunal found in favour of Mrs Mooney and awarded her that sum.
6. [6]
   Swallow seek leave to appeal that decision of the tribunal.
7. [7]
   Given this is an appeal from a decision made in the tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.^[1] 
8. [8]
   Leave to appeal will usually only be granted where at minimum an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.^[2]
9. [9]
   The grounds of appeal are, as often the case where parties are not legally represented, rather vague in identifying the error or errors made by the tribunal below.  The application for leave to appeal, enlarged upon by associated submissions made by Swallow, reveals the following complaints:

   1. a)
      The tribunal failed to take into account the evidence presented by their experts;

   1. b)
      There was no finding of fault on the part of Swallow to enable the tribunal to determine the matter in favour of the respondent; and

   1. c)
      The award of damages was excessive in the circumstances.

Did the tribunal fail to take into account Swallow’s expert evidence?

10. [10]
    Two documents were tendered at the hearing by Swallow.  Both were from dry cleaners.  Neither disclosed the expert qualifications claimed for the makers of the statement by Swallow.  That disclosure was, though this matter was a minor civil dispute, required by the tribunal’s Practice Direction 4 of 2009.
11. [11]
    The letter from Pinelands Dry Cleaners states the qualification of the author to be 30 years experience as a dry cleaner.  It goes on to state:

I would like to give my opinion on the garment being damaged by a reputable dry cleaner.  It seems like the garment has been cleaned according to the care label.  On my respective view, (sic) the dry-cleaner must have followed all the possible care of the garment.

12. [12]
    The letter goes on to suggest the maker of the dress should be liable.
13. [13]
    There is no suggestion in the letter that the author has seen the dress concerned nor been privy to the information to be found on the label.  It is unclear what the author was told to justify his statement that “It seems like the garment has been cleaned according to the care label.”  What the author knew about the label contents and the dry cleaning work performed is not established.  The basis for the opinion, what the experts were told and knew about the circumstances of the matter complained about, was not disclosed in their statements.  The tribunal rejected the value of this statement on the basis it amounted to conjecture only and did not assist the tribunal.  That was open to the tribunal to conclude and no criticism of the tribunal should flow from that.
14. [14]
    Similar considerations apply to the other item of so-called “expert evidence.”  This consisted of a statement from another dry cleaner, although the name of the entity concerned is Drycleaning Institute of Australia.  There is a similar failure to comply with the QCAT Practice Direction on expert evidence and none of the author’s qualifications are set out.
15. [15]
    The statement talks about the problems which can occur with respect to cleaning wedding gowns and then goes on to say:

Based on my review of the information provided by copies of correspondence and follow-up discussions with the owner… it is conceivable that the gown was processed correctly…. 

Without evidence showing the condition of the gown as received and compared with the final result I am not able to provide a definite conclusion.

16. [16]
    Not only does this dry cleaner fail to explain what information he was given by the owner (Swallow) but he concludes he is unable assist with respect to the cause of the problem.
17. [17]
    The tribunal rightly concluded neither statement assisted it in its deliberations.  This complaint is not made out.

There was no finding of fault on the part of Swallow to enable the tribunal to determine the matter in favour of the respondent

18. [18]
    The difficulty which presents itself here is twofold.  The tribunal appears to have given reasons for decision where it said:

I think if you hold yourself out, as these dry cleaners do, to be an expert in cleaning wedding dresses, you would be aware of the issues.  You’d be aware of the manufacturing issues.  You’d be aware of the alcohol, because that’s what happens at weddings.  There’s a lot of alcohol about.  You’d be aware of the glue issues.  If you’ve been in the business for 10, 20, 30 years, you would know all of these issues, and you would take appropriate care.  Now, it appears to me that whoever cleaned this, your agent, did not take appropriate care, and, therefore, it was damaged.^[3]

19. [19]
    The tribunal drew the inference, that is the conclusion, that the dry cleaners had not taken appropriate care. What is missing from the reasons given here however is an explanation as to how that inference was drawn and on what facts.  It is not clear from a perusal of the transcript what evidence was relied on in coming to that conclusion.  The drawing of inferences in the absence of evidence is an error of law.^[4]  Given that error, leave to appeal should be granted in this matter.
20. [20]
    Further, what cause of action Mrs Mooney succeeds under is not clear.  In the transcript of the proceedings, early in the proceedings, the comment is made by one of the Justices of the Peace “This seems to be an ACL issue.”^[5]  Nothing more is said during the hearing about cause of action.
21. [21]
    One might speculate that the decision is based on consumer rights under the Australian Consumer Law (ACL).  Is it a breach of s 60 which is a guarantee that a person who supplies services to a consumer guarantees that the services will be rendered with due care and skill?  That may well have been the case but perhaps it was based on negligence, or perhaps breach of contract.  To have to speculate as to what basis a party succeeds on in a matter after reasons for decision are given is wrong.  That is a failure to give adequate reasons for decision which is an error of law as well.^[6]
22. [22]
    In Attorney-General v Kehoe,^[7] Thomas JA said:

Generally speaking, an error of law is discerned when the Court draws the inference that the relevant tribunal has failed in some respect to exercise its powers according to law.  A lack of transparency, or obfuscation of the true basis of a decision may make it easier for a court to identify such an error.^[8]

23. [23]
    In Morrison v Chen,^[9] the appeal tribunal discussed the very busy and challenging Minor Civil Dispute jurisdiction of the tribunal and the obligation to give adequate reasons for decision:

In the tribunal’s minor civil disputes jurisdiction, giving immediate oral decisions accords with the spirit and purpose of the QCAT Act. Those decisions will not be exposed to criticism which fails to acknowledge the circumstances in which they are given, or the pressure of the tribunal’s caseload.

Nevertheless, the tribunal’s reasons for decision should set out the material findings of fact, the applicable law and the reasons for applying the law in the way expressed in the decision. The tribunal’s decision did not, in this case, expose its reasoning for the finding in favour of Ms Chen.

24. [24]
    The absence of the identification of the cause of action pursuant to which Mrs Mooney succeeded before the tribunal amounts to inadequate reasons for decision having been given and is also an error of law.
25. [25]
    Leave to appeal should be granted on this ground as well.

The award of damages was excessive in the circumstances

26. [26]
    This ground of complaint is very wide and offers little by way of particulars of the error alleged below.   Swallow complains about the entire award.  Ms Yu says she offered to repair the damaged dress by replacing the lace top with comparable material.  Ms Yu says she is a dressmaker of many years experience.
27. [27]
    Ms Mooney rejected this proposal in the hearing because she said the stained wedding dress had sentimental value and she did not want it replaced.
28. [28]
    The tribunal awarded Ms Money $2,950.  The legal basis for that assessment is not revealed in the reasons for decision. 
29. [29]
    Ms Mooney claimed half the original cost of the dress plus the dry cleaning fess of $200 in her application.  She based her claim on something she referred to as The International Fair Claims Guide for Consumer Textile Products.  No copy of the guide was tendered for the benefit of the tribunal. 
30. [30]
    The tribunal noted the guide was unknown to them.
31. [31]
    The tribunal may have based its decision on that guide.  If so, it should have said and explained why it accepted such assessment.
32. [32]
    If the tribunal determined the action on the basis of breach of guarantee under the ACL, the tribunal was obliged to determine whether the breach of guarantee was a major failure or a minor failure which could not be remedied.  In either of those circumstances, the consumer was entitled to recover from the supplier damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.^[10]
33. [33]
    That required, as indeed any claim based on breach of contract or negligence, an assessment of damage and loss suffered to be undertaken.  There is no assessment of damages.  This also constitutes a failure to give adequate reasons for decision and amounts to an error of law.
34. [34]
    Leave to appeal under this head of complaint should also be given.

Conclusion

35. [35]
    Leave to appeal should be granted and the appeal allowed on the basis set out above when determining the application for leave to appeal. The decision of 24 May 2017 is set aside and the matter returned to the original tribunal who determined the matter for reconsideration in respect of the errors of law set out above and with the hearing of additional evidence limited to loss or damage if deemed necessary by the tribunal.