Stanton v Palmer[2024] QCATA 36

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On or about 25 July 2021 the applicant purchased a British Bulldog puppy from the respondent for $5,000.00. Due to serious health complications with the dog, she was euthanised on 30 May 2022. As part the purchase contract, the respondent included a “Health/Purchase Guarantee” (“the guarantee”). The guarantee applied until the dog reached 12 months of age and was for “all life altering ‘hereditary’ defects excluding hip and elbow dysphasia”. The applicant sought to rely on the guarantee to obtain a full refund from the respondent, but this was rejected although she offered to refund half the purchase price or give the applicant another dog.
2. [2]
   The applicant then commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal claiming a refund of the purchase price plus associated veterinary fees in the sum of $6,007.00, principally in reliance on the guarantee.
3. [3]
   The matter came on for hearing by a Tribunal adjudicator (“the adjudicator”) on 15 September 2022. After hearing from the parties and considering the documentary evidence, including veterinary reports, the applicant’s claim was dismissed.
4. [4]
   Subsequent to that decision, on 20 September 2022 the applicant filed an application for leave to appeal or appeal.  As this is an appeal brought under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 in respect of a decision in a proceeding for minor civil dispute, an appeal may be made only if the party has obtained leave of the Tribunal. Leave to appeal (or permission) will usually only be granted where there is a reasonable argument the decision was attended by error, or that an appeal is necessary to correct the substantial injustice caused by the error.^[1] Further in Rintoul v State of Queensland & Ors [2018] QCA 20 at [10] the Court of Appeal reiterated the general principles:

The principles governing a grant of leave to appeal are well-established. In short, an applicant for leave to appeal must show:

1.  the appeal is necessary to correct a substantial injustice;

2.  there is a reasonable argument that there is an error to be corrected.

There must be reasonable prospects of success to warrant a grant of leave. Therefore, in deciding whether to grant leave to appeal the Court usually makes some preliminary assessment of the prospects of the proposed appeal.

5. [5]
   The grounds of appeal essentially relate to a failure to provide procedural fairness, and making incorrect findings of fact. The ground is best summarised as follows, in that the Tribunal adjudicator:

   1. did not make any attempt to contact the veterinary clinic to obtain further information about the content of the report provided to the applicant;
   2. permitted the respondent to provide a description of ‘hemivertebrae’ from Google during the hearing;
   3. did not fully review the veterinary report;
   4. made a summation of the veterinary report which led to the outcome of the treatment, and;
   5. was not presented with an opportunity to respond to submissions by the respondent.
6. [6]
   The dog, up till the tragic outcome on 30 May 2022, was physically fine and not showing any signs or symptoms of illness. On Sunday night, 29 May 2022 as described by the applicant,^[2] he noticed the dog “wasn’t really being able to walk…her back legs weren’t working”.  The dog was taken to an afterhours veterinary clinic at Manly but was unable to get any satisfactory treatment. She was taken home and the following morning the symptoms persisted so she was taken to another veterinary surgery, the Redlands Veterinary Clinic (“VRC”).
7. [7]
   The dog was sedated, X-rays taken and it became apparent that the dog had multiple problems. An initial, undated, report from the VRC noted the following:

• Spinal pain
• Abdominal pain
• Luxating patellae (knee caps)
• Respiratory compromise consistent with Brachycephalic Obstructive Airway Syndrome (BOAS)

8. [8]
   The report went onto note that the X-rays revealed marked spinal changes and a foreign body was identified. The patella luxation was confirmed when the dog was under light sedation.
9. [9]
   A further report was obtained from RVC on 7 June 2022 which contained some further information. The diagnosis was the same as above except a further comment was made with respect to the abdominal pain “with subsequent foreign body identified”. It went on:

   1. The dog may need corrective airway surgery in the future;
   2. The bilateral patella luxation was confirmed;
   3. Reduce range of movement in her hips;
   4. Spinal pain;
   5. Pathology in the thoracic and thoracolumbar regions.
10. [10]
    The report concluded the dog had multiple, significant health issues complicated by the management of the “gastrointestinal foreign body”. With all of these issues to consider the applicant, assisted by the vets at the RVC, decided the best and humane outcome for the dog was for it to be euthanised.
11. [11]
    There is no doubt that some of the issues the dog presented with were heredity, however the complicating factor and it seems the cause of the dog’s presentation to the RVC was the sudden onset of pain, perhaps from the foreign object. There was no direct diagnosis of this but the report does infer that this issue obviously had to be addressed first and then the other pre-existing conditions which would require treatment.
12. [12]
    The evidence before the adjudicator was not controversial, although the respondent did not get an opportunity to have the dog examined independently. The reasons for that are obvious as the dog was distressed, needed immediate surgical treatment and a decision had to be made.
13. [13]
    During the course of the hearing the 7 June report was discussed and comments made by the learned adjudicator about not being able to contact the vet “Rebecca” to be questioned about the content. The following passage is informative about the ground of appeal dealing the availability of the author of the report:

Member: She has given a report?^[3] She hasn’t provided a report to the Tribunal, has she. So no point in – I my view, theres no point in cross-examining her because I don’t have a report from her, okay? Now…

Mr Stanton: Okay, fair enough.

14. [14]
    This exchange, and the remainder of the discussion noted in the transcript, indicated that the applicant was content to rely on the two reports from RVC referred to above. Also, from my own observations of the evidence and the reading the transcript it is difficult to see how further evidence would have been of assistance. It is evident that the adjudicator was acutely aware of the content of both reports having regards to the reason for the second report, being in anticipation of some litigation.^[4].
15. [15]
    There was specific evidence from the applicant about the foreign body, which could not be identified. The first step in the treatment would be to identify what the foreign body was and having to operate to deal with that issue first. Then depending on how that went they could carry out further surgery on the throat and knees. However, it is evident that although there may have been issues with these areas of concern there is no evidence they were the causative factor of her presentation the RVC.
16. [16]
    The learned adjudicator was alive to the issue of the foreign body because he said in his reason:

None of these things^[5] appear to me to justify, on their own, putting the dog down. I mean, the only thing that concerns me – that, you know, might – ultimately be a problem is this abdominal pain that it's caused by an obstruction. So all of these other issues weren't the reason that you – you bought –  there her in. I mean clearly, between 14^th of May and 30^th of May, you know, there's evidence of the any development of the BOAS syndrome^[6]

17. [17]
    Consideration was then given to the guarantee and whether the reason for the dog’s demise fell within the ambit of the guarantee. The guarantee included the following:

• Sever Luxating Patella’s
• ………
• Severe Hip and Elbow dysplasia which hampers the dog’s movement and requires surgery to correct.
• Stenotic snores (Collapsed Nostrils)

18. [18]
    The applicant submits that the dog clearly was suffering from luxating patellas as diagnosed by RVC. There is no dispute about that. However, for the guarantee to respond the applicant still had to comply with the terms of the guarantee by notifying the respondent of the issues with the dog and providing an initial report and then a second report as to the condition, relating to luxating patellas.
19. [19]
    The applicant submits that the learned adjudicator did not address these issues, but clearly in his reasons he did^[7] when deciding the primary cause for euthanising the dog. He accepted the dog had abdominal pain and spinal pain, but in circumstances where there was an obstruction which required surgical removal, it was open to him to conclude factually that this was precipitous in the treatment of the dog. In other words had it not been for the foreign object, and the reason for euthanising was in relation to only the pre-existing conditions, provided the applicant complied with the terms of the guarantee he may have been on firmer ground.
20. [20]
    In support of the appeal the applicant filed a written submission in which he expanded on his grounds of appeal. As mentioned he contends that when there was some confusion or lack of understanding of the various terms used in the reports the Tribunal should have instigated a telephone call to the RVC to seek clarification. It is not for the Tribunal to contact witness to gather further evidence to support one side or the other. The onus of proof in the primary application was on the applicant. He had to establish on the balance of probabilities that it was the heredity issues that lead to the outcome. Clearly this was complicated by the gastrointestinal intestinal foreign body. There was simply no evidence adduced by the applicant as to impact of this in terms of the dogs health other than it was the first step in the process. There was no error in the Tribunal failing to obtain further evidence from the RVC.
21. [21]
    The transcript shows that the learned adjudicator most certainly gave consideration to the report from the RVC. It was the basis of his findings that the cause of the presentation to the clinic was the foreign body. Once identified as a major issue the other issues were identified and considered in the overall treatment for the dog. Had it not been for that, one can only speculate as to whether the dog would have required immediate treatment for the heredity issues in any event. The RVC did not address this.
22. [22]
    The commentary during the course of the hearing about the treatment of the dog and the adjudicator’s personal views, it seems from the transcript, were there to engage the parties in discussion to draw out their respective positions. Ultimately it was up to the Tribunal to make a finding as to the cause of the presentation and although the other heredity issues were relevant to the final decision, they were not, he found the primary reason for veterinary intervention.
23. [23]
    Finally, the findings of fact by the learned adjudicator, and the conclusions reached on those findings, were clearly open on evidence. In particular in relation to the obstruction, and that being the main reason for the dogs presentation to the RVC to investigate and remove it, and then further surgical interventions, probably depending on the outcome of that initial surgery. The obstruction is not covered by the guarantee.
24. [24]
    That being the case the general principles laid down by the High Court are against the applicant. The appeal is not another opportunity for the applicant to re-argue the case that was before the learned adjudicator. It is well established that findings of fact made by the original decision maker will not be disturbed unless the findings were not open on the evidence before the Tribunal. The appeal tribunal will only disturb a finding of fact if there is good reason to do so, as the High Court said in Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 at [43]:

A court of appeal conducting an appeal by way of rehearing is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings^[8]. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by "incontrovertible facts or uncontested testimony", or they are "glaringly improbable" or "contrary to compelling inferences". [footnotes omitted].

25. [25]
    It is not the role of the Appeal Tribunal in considering whether to grant leave to appeal to rehear the case, this is not a retrial. Error must be identified along the lines described above. The transcript of the hearing demonstrates that the learned adjudicator listened carefully to applicant, took into account the two reports from RVC, and decided the case on that evidence. There is no basis established to interfere with those findings.
26. [26]
    The applicant has not established any ground upon which leave to appeal can be granted, and therefore it is refused.