Bromley v Ward & Anor [2022] QCAT 275

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bromley v Ward & Anor [2022] QCAT 275 PARTIES: BERNADETTE BROMLEY (applicant) v GREGORY WARD CTJ JEWELLERY PTY LTD (respondent) APPLICATION NO/S: MCD0031-21 MATTER TYPE: Other minor civil dispute matters DELIVERED ON: 11 May 2022 HEARING DATES: 15 September 2021, 10 September 2021, 24 June 2021, 30 April 2021, 8 April 2021 HEARD AT: Southport DECISION OF: Adjudicator Alan Walsh ORDERS: 1. The Respondents pay the Applicant $22,033.00 for claim, $1,841.30 for interest, and $352.00 for filing fee, in total $24,226.30, no later than 4pm on 25 May 2022. 2. The Applicant return to the Respondent, CTJ Jewellery Pty Ltd, the brown diamond presently in her possession, by handing it to a current director of the company as ascertained by an ASIC search no later than 4pm on 1 June 2022. DIRECTION 3. QCAT Registry email the Orders and these Reasons for Decision to the parties and to Solicitors of record for the Respondents. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – CONSUMER CLAIM – where company carried on business as diamond dealer and manufacturing jeweller – where company controlled by sole director and shareholder – where company contracted with customer to unset and reset diamonds in jewellery – where company by its staff and director took possession of customer’s jewellery -- 1 of 49 -- 2 and diamonds – where diamonds unset and packeted – where contract terminated by mutual agreement – where customer took back separately packeted rings and diamonds – whether all unset diamonds returned to customer – whether lesser quality brown diamond substituted for solitaire diamond before collection ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – where customer a consumer – where company a trader as defined in Schedule 3 of the QCAT Act – where company supplied services in trade and commerce – where Australian Consumer Law applied for consumer protection – where statutory guarantee services be rendered with due care and skill – where statutory guarantee that services reasonably fit for express or implied purpose – where statutory prohibition against misleading and deceptive conduct – whether statutory guarantee and prohibition breached – whether company liable – whether director involved – whether director liable as accessory ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – EVIDENCE – ONUS – PROOF – STANDARD OF PROOF – where onus of proof on alleging party – where civil standard proof on the balance of probability – where dishonesty or fraud implied in claim and response – where dishonesty or fraud alleged in evidence – whether Briginshaw standard of proof applies – whether fraud and dishonesty proved to reasonable satisfaction of Tribunal – whether other allegations sufficiently proved on mere balance of probabilities – whether retail diamond replacement cost the appropriate measure of compensable loss ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – TORTS – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – IN GENERAL – whether law of negligence applies – whether contractual duty of care concurrent with duty of care in tort – whether Civil Liability Act 2003 (Qld) applies – whether customer vulnerable – whether customer owed duty of care – whether company and director concurrently liable to customer for negligence -- 2 of 49 -- 3 Acts Interpretation Act (Qld), s 27B Australian Consumer Law (Qld), s 18, s 29, s 60, s 236, s 267 Civil Liability Act 2003 (Qld), s 4, s 9, s 10, s 11, s 23, s 28, Schedule 2 Competition and Consumer Act 2010 (Cth), s 139G, Schedule 2 Fair Trading Act 1989 (Qld), s 16, s 19, s 20, s 50, s 50A Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 9, s 11, s 12, s 13, s 28, Schedule 3 BJB v Acting Deputy Commissioner Wright & CCC [2021] QCAT 448 Briginshaw v Briginshaw (1938) 60 CLR 336 Brookfield Multiplex v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185 Bryan v Maloney (1995) 182 CLR 609 CCP Australian Airships Ltd v Primus Telecommunications Pty Ltd [2004] VSCA 232 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 Farah Constructions Pty Ltd v Say-dee Pty Ltd (2007) 230 CLR 89 Hadley v Baxendale & Ors [1854] EWHC J70 Helyar v Civil and Development Consulting Pty Ltd (in liquidation) & Ors [2020] QCAT 465 Jackson v Cochrane [1989] 2 Qd. R 23 Jones v Dunkel (1959) 101 CLR 298 Kenxue Pty Ltd ATF The Susan Investment Trust v Westpro Finance Pty Ltd [2020] NSWSC 1146 Kimberly NZI Finance Ltd v Torero Pty Ltd (1989) ATPR (Digest) 46-054 Liao v LNG Properties Pty Ltd [2019] NSWSC 1846 Meandarra Aerial Spraying Pty Ltd & Anor v GEJ Geldard Pty Ltd [2012] QCA 315 Mousa & Anor v Vukobratich Enterprises Pty Ltd & Anor [2019] QSC 49 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 Peng v Darley Properties Pty Ltd (t/a L J Hooker Caboolture-Morayfield [2022] QCATA 45 Perry v Apand Pty Ltd (1999) 198 CLR 180 Presnia v Aknar (1996) 40 NSWLR 165 R v Filippa [2008] QSC 39 Wallace v Kam (2013) 250 CLR 375 Waterfront Investments Group (In liq) (2015) 105 ACSR 280 Woolcock Street Investments v CDG Pty Ltd (2004) 216 CLR 515 Wyong Shire Council v Shirt (1980) 146 CLR 40 -- 3 of 49 -- 4 Yorke v Lucas (1985) 61 ALR 307; [1985] HCA 65 APPEARANCES & REPRESENTATION: Applicant: Bernadette Bromley, self-represented Respondent: Gregory Ward and CTJ Jewellery Pty Ltd, represented by Ms H Lilley of Counsel instructed by Lander and Rodgers and earlier represented by Mr S Trewavas of Counsel instructed by Australian Law Partners REASONS FOR DECISION Diamonds [1] This is a case about gemstone quality diamonds. In the celebrated words of fictional character James Bond 007 in a film of the same name, diamonds are forever. This perhaps is because they are the hardest naturally occurring mineral of pure carbon known to humankind,1 often sought after for intrinsic value and sometimes, as in this case, symbolic of human love and affection. [2] A forensic understanding of the commodity is helpful. Internationally renowned jewellers Tiffany & Co. explain the characteristics and features of gemstone diamonds in their Guide to Diamonds:2 Characteristics Every diamond, like a human fingerprint, has certain distinguishing characteristics. The 4Cs – colour, clarity, cut and carat weight – are the globally accepted standards for assessing the quality of a diamond. Cut is determined by how a diamond’s facets interact with light, determined by symmetry, proportion and polish. Clarity is a measure of the purity and rarity of the stone, graded by the visibility of these characteristics under 10 – power magnification. A diamond is flawless if no inclusions (internal flaws) and no blemishes (external imperfections) are visible. Colour reflects the natural tint inherent in white diamonds, in nature most white diamonds have a slight tint of yellow but the closer to being “colourless” a diamond is, the rarer it is. Carat denotes the weight of a diamond, one carat denoting .20 grams. Diamond Clarity Chart: FL diamonds are Flawless; IF diamonds are internally Flawless; VVS1 VVS2 – VVS diamonds (1 and 2) are Very, Very Slightly Included. VS1 VS2 – VS diamonds (1 and 2) are Very Slightly Included. SI1 SI2 – SI diamonds (1 and 2) are Slightly Included; I1 I2 I3 – I diamonds (1, 2 and 3) are Imperfect. … 1 https://www.brittanica.com 2 About which I have informed myself by Google search and to which I may have regard independently of the parties by section 28(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The Respondents’ expert has also referred to the 4 C’s in evidence to which I will refer later. -- 4 of 49 -- 5 Does Diamond Colour Matter? Colour is the second most important of the 4Cs because the colour grade directly affects the stone’s appearance. Diamonds with a poor colour grade can appear slightly yellow instead of the desired brilliant white. … The Tiffany Gemmological Laboratory will not accept stones exhibiting strong or excessive fluorescence, which, in natural lighting, can give diamonds a milky appearance. What Is Diamond Colour? The industry standard for grading colour is to evaluate each stone against a master set and assign a letter from “D” (colourless) to “Z” (light yellow): D E F - Colourless, G H I J - Near Colourless, K L M - Faint Yellow, N O P Q R - Very Light Yellow, S T U V W X Y Z - Light Yellow. Fancy colour diamonds have their own colour grades. Claim [3] In an Application for minor civil dispute – consumer dispute filed with the Tribunal at Southport on 15 January 2021, Bernadette Bromley sues Gregory Ward, then sole director of the other Respondent CTJ Jewellery Pty Ltd (CTJ), and CTJ, which carries on business as a manufacturing jeweller, wholesaler, and retailer, for the loss of her diamonds. [4] Mrs Bromley wants the Tribunal to order their return. In the alternative, she claims compensation in the amount of $23,200 for twelve (12) unreturned small diamonds and the loss of her solitaire engagement diamond which she says was substituted with a lesser quality brown diamond whilst in the custody of CTJ in early 2020 for resetting in new jewellery. Defence [5] Mr Ward denies the alleged diamond loss and substitution and asks the Tribunal to dismiss Mrs Bromley’s claim for the following reasons: (a) First, he says that he is not the correct Respondent, rather, his company CTJ (alone) is. (b) Second, he says that there is no reliable evidence of the exact quantity, type, or quality of diamonds alleged to have been taken in and not returned. (c) Third, he says that he did not interfere with, or take, Mrs Bromley’s diamonds. (d) Fourth, he says that Mrs Bromley signed a CTJ docket acknowledging that she and her husband received back “all (the) stones from CTJ Jewellery Pty Ltd” when they collected them in May 2020.3 [6] CTJ, subsequently joined as a Respondent, defends the claim on the same basis as Mr Ward. Neither they, nor their solicitors and Counsel, assert or submitted that CTJ is not a trader as defined in Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act). Implicitly, in both Mrs Bromley’s claim and in the Response of Mr Ward, and expressly in some of their evidence, each side accuses the other of bad faith, dishonesty, and fraud. 3 Response dated 8 April 2021, paragraph 71. -- 5 of 49 -- 6 Issues [7] The issues are as follows: (a) What were the terms of the contract between Mrs Bromley and CTJ? (b) What diamonds did Mrs Bromley deliver to CTJ in February 2020? (c) What diamonds did she receive back in May 2020? (d) What were the diamonds in question worth? (e) Did CTJ breach the contract with Mrs Bromley in not returning some diamonds? (f) Did CTJ breach any statutory prohibition or guarantee/s implied by the Australian Consumer Law (Qld) (the ACL)? (g) Dishonestly or not, was Mr Ward involved in a breach of any statutory prohibition and guarantee/s? (h) Should Mr Ward be held personally liable to Mrs Bromley accordingly? (i) Was Mrs Bromley a vulnerable person when contracting with CTJ? (j) Did CTJ and/or Mr Ward owe Mrs Bromley a duty of care to keep her diamonds safely and securely whilst in CTJ’s possession? (k) Was CTJ negligent in handling Mrs Bromley’s diamonds? (l) Was Mr Ward negligent in failing to prescribe, implement, and ensure, the administration of, a CTJ protocol for safe custody and return of customers on hold jewellery, including Mrs Bromley’s diamonds? (m) Compensation, in the event of liability. Onus [8] Parties in civil proceedings in the Tribunal bear the onus or burden of proving their allegations on the balance of probabilities. It remains with the party making the allegation throughout,4 except, that is, where Statute5 or the common law6 provides otherwise. At common law, a bailee bears the onus, sometimes called a reverse onus, to prove appropriate steps were taken to protect the security of bailed property. Where dishonesty or fraud is alleged and either challenged or not admitted, proof of the allegation on the balance of probabilities according to the Briginshaw7 standard of reasonable satisfaction is required, which Sir Owen Dixon explained as follows:8 The truth is that, when the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to 4 See BJB v Acting Deputy Commissioner Wright & CCC [2021] QCAT 448 at [18] citing R v Filippa [2008] QSC 39 at [5]. 5 For example, though not applicable in the present case, section 29(2) of the Australian Consumer Law (Qld). 6 In the bailment context, see Jackson v Cochrane [1989] 2 Qd. R 23 7 Briginshaw v Briginshaw (1938) 60 CLR 336. 8 Ibid, at 361 - 362. -- 6 of 49 -- 7 define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. [9] The High Court in Neat Holdings has more recently said that “the strength of evidence necessary to establish facts on the balance of probabilities varies according to the nature of what is to be proved.”9 This accommodates the explanation in Briginshaw. [10] Counsel for Mr Ward and CTJ submitted that Mrs Bromley must prove her case on the balance of probabilities according to the Briginshaw standard. Insofar as allegations of fraud and dishonesty are concerned, that is undoubtedly correct, and it follows where they allege or imply fraud or dishonesty on Mrs Bromley’s part that Mr Ward and CTJ must likewise prove those allegations to the same standard. However, allegations of fraud or dishonesty aside, all that Mrs Bromley need establish on the bare balance of probabilities for success is the loss of her diamonds due to breach of contract and/or breach of a duty of care, whether statutory or under the common law, or a breach of consumer protections, because she has not claimed exemplary or punitive damages for fraud or dishonesty. [11] Because intent, fraud, or dishonesty, are not essential prerequisites for liability in any of the following instances, Mrs Bromley need only establish against Mr Ward that he was involved in conduct of CTJ which on the bare balance of probabilities contravened the following provisions of the Australian Consumer Law (Qld) (the ACL). (a) Chapter 2 (General Protections) and the prohibition in Part 2-1, section 18, against misleading or deceptive conduct; or (b) Chapter 3 (Specific protections) and the prohibition in Part 3-1 (Unfair practices) in Division 1, section 29 against false or misleading representations about goods or services. Chapter 3 (Specific protections) Part 3-2 (Consumer transactions) Subdivision B (Guarantees relating to the supply of services) and the guarantee in section 60 that services will be rendered with due care and skill. (the ACL provisions) [12] Put another way, intent, fraud, or dishonesty, are not essential prerequisites for establishing liability of a trader to a consumer or for establishing accessorial liability to a consumer of a person involved in a breach by a trader of sections 18 and 29 and breach of the guarantee of due care and skill under 60 of the ACL, though sometimes 9 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66. -- 7 of 49 -- 8 they may be ingredients.10 Overreach in making unsubstantiated allegations of fraud and dishonesty, though undesirable, is not of itself fatal. Undisputed Facts [13] Mrs Bromley was first a retail customer of CTJ in February 2011 without incident.11 In February 2020, she and her husband Mark Bromley returned to the CTJ shop on the Gold Coast. She handed over, to sales manager Ms Leanne Amor, various items of jewellery and diamonds belonging to her. Mrs Bromley’s rings had recently been surgically removed from her arthritically swollen fingers which is why she wanted a new ring made up using her diamonds. She instructed that the diamonds in her jewellery be unset and reset in the new ring to be designed and manufactured by CTJ. Nathan McMahon, one of two CTJ Jewellers at the time, unset the diamonds and Ms Amor, in consultation with Mr Ward also present, noted the quantity and dimension of the unset diamonds. An Indian designer, “cadded”12 the proposed new design to incorporate Mrs Bromley’s diamonds and Ms Amor provided the illustration to Mrs Bromley for approval but the new ring never materialised because Mrs Bromley changed her mind and instructed Ms Amor not to complete the project. [14] Together with her husband, Mrs Bromley met with Mr Ward at the CTJ shop on 12 May 2020 to retrieve her jewellery and the unset and loose diamonds. Ms Amor was absent. Mr Ward had stood her down on pandemic leave in March 2020. He produced various packets of jewellery. They signed a receipt and left the shop with the packets in Mrs Bromley’s handbag but returned in an agitated state several hours later the same afternoon after seeing another jeweller. A verbal altercation ensued. Mr Bromley, a former Victorian policeman, cautioned Mr Ward. Mrs Bromley demanded the return of twelve small diamonds and the large solitaire engagement diamond which she and her husband said were missing. After heated discussion, Mr and Mrs Bromley left the premises a second time. Mr Ward reported the altercation to the police. The next day, Mrs Bromley made a criminal complaint against Mr Ward and CTJ to the police concerning her missing diamonds. Investigations were inconclusive. The police closed the docket. [Redacted]. The innuendo is that Mr Bromley conspired with Mrs Bromley to defraud them. Preliminary Findings [15] I find as follows on the undisputed facts: (a) The contract between Mrs Bromley was one between her as consumer and CTJ as trader for the supply of goods, a new manufactured ring set with Mrs Bromley’s unset diamonds, and services involving the process of doing so in trade and commerce, though her claim relates to the services. (b) Sections, 18, 29, and 60, read with other relevant sections of the ACL to which I will refer later, applied for Mrs Bromley’s protection. (c) The services included identifying and un-setting Mrs Bromley’s diamonds from her jewellery and designing the new ring, as occurred, and the prospective re- 10 Cf liability for unconscionable conduct or dealing where dishonest or fraudulent behaviour is a requirement - per Black J in Waterfront Investments Group (In liq) (2015) 105 ACSR 280 citing Farah Constructions Pty Ltd v Say-dee Pty Ltd (2007) 230 CLR 89. 11 See exhibit GW4 to the affidavit of Gregory Ward sworn 31 August 2021. 12 Using CAD (computer- aided design) computer software. -- 8 of 49 -- 9 setting of some of the diamonds in the elaborate new ring (or good) once manufactured, which did not occur because Mrs Bromley changed her mind and did not proceed past the design stage. (d) Implicitly for commercial efficacy, alternatively so obvious that it goes without saying, the services to be provided included CTJ keeping the rings and diamonds safe and secure whilst in the company’s possession. (e) CTJ was contractually obliged to return Mrs Bromley’s diamonds and jewellery in one form or another in due course as instructed by Mrs Bromley. The contract had an element of bailment13 and the services to be rendered included the safe return of her rings and diamonds to her in due course. Evidence [16] Careful consideration of the evidence is necessary because assessment of witness credibility is pivotal to findings on contested facts and legal liability14 and the outcome will inevitably have reputational consequences. There is also an insurance dimension for the Respondents. In ascertaining where the truth lies, I must decide whose evidence I prefer and who may be liable. I am required to give adequate reasons for my findings. That is no straightforward exercise permitting a truncated judgment in this case. Mrs Bromley [17] In oral evidence on 8 April 2021, Mrs Bromley swore to the truth15 of the content of the Form 1 Application and attachment (the attachment) filed on 15 January 2021, in which Mrs Bromley said that Mr Bromley gave her a solitaire diamond engagement ring in 1990, for which she received a valuation for it in 1999. Exhibit RX to the attachment is the certificate of valuation of it and related jewellery dated 6 August 1999 by A.J. Walsh. F.G.A.A. DIP.D.T. RV142 of Robt. H. Parker & Sons Pty Ltd, Manufacturing Jewellers, Registered Gemmologists, Valuations, of Melbourne, certifying in his opinion the replacement value for insurance purposes of the property of Mr and Mrs Bromley in the following terms: 1. Engagement ring, claw set with 1 brilliant cut diamond, made in 18ct yellow gold: 0.80ct. - $8,975.00. 2. Eternity ring, claw set with 5 brilliant cut diamonds made in 18ct yellow gold TOTAL WEIGHT OF DIAMONDS: 5 = 0.53ct. COLOUR: G CLARITY: VS - $2,570.00. TOTAL VALUE: $11,545.00. [18] Subsequently, Mrs Bromley obtained valuations for other jewellery acquired by her from time to time. Exhibit SX to the attachment is a Valuation Certificate by John A 13 Delivery of goods for improvement for reward and safe return in due course. 14 See the requirements of s. 27B of the Acts Interpretation Act 1954 (Qld). 15 Transcript 8 April 2021, T1-7, lines 1 to 10. -- 9 of 49 -- 10 Poirrier FGAA (Reg. No. 105) of Accord Valuation Services dated 31 March 2005 valuing the “below mentioned goods … the property of Bernadette Bromley” (described by Mrs Bromley as her family ring) for retail replacement (Valuation No. 262900) in the following terms: Cast and hand assembled yellow and white gold diamond ring with a 2.3mm half round shank and pointed flow up shoulders each side of a curved white gold claw mount set with four 0.25ct brilliant cut diamonds colour “H” and clarity “SI”. The ring is stamped 18ct and weighs 4.9gms. - $5,125.00 [19] Exhibit TX to the attachment is a Certificate of Authenticity dated 25 July 2017 from Michael Hill Jewellers subsequently certifying a retail price of $1,699.00 for a 10YW 1 CTDW P.B. DBL ROW CLAW RING. Mrs Bromley referred to this as her “comfort ring”. [20] Mr and Mrs Bromley took her engagement ring and other jewellery to several Gold Coast jewellers in early 2020, looking to have the diamonds extracted from the jewellery with some to be set in a new ring incorporating the engagement ring diamond as the centrepiece. Examination of the engagement ring diamond by several jewellers under magnification revealed a unique line on the top that extended from the centre of the engagement ring diamond to the edge, described as a “fracture” or “wisp”. Ms Amor examined Mrs Bromley’s diamond under magnification and said that it had a 5.9 mm diameter spread, that it was brilliant white, and that it had a “fracture” from the centre to the edge but no other visible flaws. Mr Ward, CTJ’s owner, present with Ms Amor at the time, discussed with Mrs Bromley having a new ring with a hinge for her swollen finger, which he measured. [21] Mrs Bromley instructed CTJ to commence work. She gave Ms Amor eleven loose pieces of yellow gold items of jewellery which Ms Amor photocopied, giving a copy (exhibit AX to the attachment) to Mrs Bromley. Mrs Bromley says that the photocopy “described” the items of jewellery.16 By reference to exhibit AX, Mrs Bromley said that the items of jewellery depicted in exhibit AX comprised: (a) Heart Shaped Locket – no diamonds. (b) Eternity Ring – 5 x 3.1mm sized Diamonds of “G’ Colour and “VS” Clarity. (c) Gold Pendant – 3 x 3.5mm sized Diamonds of unassessed Colour/Clarity. (d) Mums Ring – 40 x < 2mm sized Diamonds. (e) Engagement Ring – 1 x 5.96mm sized Diamond of “G” Colour and “VS” Clarity fused with Family Ring – 4 x 4.12mm sized Diamonds of “H” Colour and “SI” Clarity. (f) 2 x Ear Studs – 64 x < 2mm sized Diamonds. (g) Comfort Ring – 1 x 3.1mm sized Diamond, 2 x 2.9mm sized Diamonds, 1 x 2.6mm sized Diamond, 14 x 2.3mm sized Diamonds. (h) Happy Ring – 21 x < 2mm sized Diamonds. (i) Queens Ring – 8 x 2.7mm sized Diamonds, 44 x < 2mm sized Diamonds. 16 The photocopy did not contain words or measurements. -- 10 of 49 -- 11 (j) Wave Ring – 38 x < 2mm sized Diamonds. [22] Ms Amor printed off a Tax Invoice/Receipt when Mrs Bromley handed over the jewellery. It is exhibited BX to Mrs Bromley’s statement and is dated 13 February 2020,17 generated at 10:56 AM. It refers to the repair intake and to the customer’s instruction to unset all diamonds to create a “new design in 18 CT Yellow and White Gold with Hinge/Trade Gold Weight.” Mrs Bromley left Ms Amor with 39 diamonds of 2.3mm or greater and 207 diamonds less than 2mm in size, in total 246 diamonds, together with her jewellery. Exhibit NX is a copy of a photograph taken in November 1999 of the diamond rings worn by Mrs Bromley. She described them in evidence as: (Top) 4 x diamonds set in her family ring; 1x diamond Solitaire ring set in her engagement ring; 5 x diamonds set in her eternity ring; and (Bottom) 18 x diamonds set in her comfort ring. Exhibit OX is a copy of a photograph taken in January 2020 showing her loose diamond rings: (Top) Family ring and engagement ring as fused together; comfort ring; 3 x diamond rings set in her gold pendant; and (Bottom) eternity ring. [23] Mrs Bromley says that Ms Amor catalogued the extraction of the diamonds at CTJ Jewellery in the document marked exhibit CX which is a “Day Planner” page noting in Ms Amor’s handwriting the sizes and quantities of diamonds as: 5.9 x 1, 4.01 x 4, 3.5 x 3, 3.1 x 6, 2.9 x 2, 2.7 x 8, 2.6 x 1 and 2.3 x 14, total 39 diamonds. She recognised Ms Amor’s handwriting of the size and quantity of each individually sized diamond on the front of small plastic bags containing them. Ms Amor placed diamonds smaller than 2mm in diameter into unmarked smaller plastic bags and placed the Day Planner note and the marked and unmarked bags of diamonds into a larger plastic packet which she sealed and placed “in a locked drawer under the counter”. Exhibit DX to the attachment is an information table which Mrs Bromley says Ms Amor sent to her and her husband. It detailed the diameter of her engagement ring diamond as 5.96mm. See item 6 of the diamond “S” information. The table included the description of the diamonds to be incorporated in the ring, namely: 5.96 x 1, 4.12 x 2, 3.5 x 2, 3.1 x 2, 2.9 x 2, 2.7 x 2, 1.7 x 48 and 1.6 x 10. Ms Amor rang Mark Bromley on 10 March 2020 and asked for payment of $480.00 for design work. Mr Bromley paid it over the phone by debit against Mastercard. [24] When Mr and Mrs Bromley attended Mr Ward on 12 May 2020 to collect her jewellery, Mr Ward seemed to Mrs Bromley to be surprised and hesitated, unlocked a drawer under the counter, looked at the content for a brief moment, closed and locked the drawer, stepped back towards the register, returned to the drawer and again unlocked it, removed a plastic bag (a photocopy of which is exhibit EX), which appeared to contain some papers and Ms Amor’s “reconciliation count” and other bags, removed the papers, and placed them on the counter. Mr Ward asked if any money was owing and Mr Bromley replied that he had paid for the design work. Mr Ward picked the bags up off the counter, turned away to the register, turned back to the counter, put a Tax Invoice/Receipt in front of Mr Bromley, passed a pen to him, said “that shows your payment for the CAD (Computer Aided Design) just sign next to Customer to sign” and invited Mr Bromley to take a photograph, which he did. The photograph of the receipt is exhibit FX and shows that Mr Bromley signed it. On it was written “Client picked up rings”. Mr Ward then placed the customer copy of the Tax Invoice/Receipt in the plastic bag and removed two packaged items from it. One 17 Cf 17 February 2020 as the date of the meeting referred to by Mrs Bromley. -- 11 of 49 -- 12 was an individual press sealed plastic bag with a Woolworths Select logo on it with printed words next to which was written “18K 12.18gm” and “9-10k 26.18” and inside the bag were the jewellery items belonging to Mrs Bromley from which the diamonds had been extracted. Exhibit HX is a copy of a photograph confirming this. The jewellery items that were originally photographed by Ms Amor in exhibit AX are visible. The other item removed by Mr Ward was a bundle of sealed plastic bags, held together with an elastic band, containing diamonds. Mr Ward removed the elastic band and laid the plastic bags out next to the bag of jewellery “like a croupier dealing cards” with some bags on top of others. Mrs Bromley asked him if her engagement diamond was there. Mr Ward shuffled the bags and pointed to one marked “5.9 x l”, a copy of a photograph of which is marked “IX”. [25] Mrs Bromley says that she and her husband could see a diamond of relatively large size to the others in the sealed plastic bags, some of which were obscured, and some that were observable had numbers written on them. None of the bags of diamonds were unsealed or opened. Mrs Bromley says that no count of the contents was conducted or offered. There were other customers lined up behind Mr and Mrs Bromley, in whose direction Mr Ward kept looking. He picked up the bags, which included five plastic press sealed bags with handwritten numbers marked on them, placed them with seven smaller unmarked bags (see exhibit KX) and placed the elastic band around the package which he then put inside a “three striped” bag which he handed to Mrs Bromley. Mr and Mrs Bromley left the shop and took the sealed bag and contents to another jeweller, Trent Giltrap of The Diamond Vault. Mr Giltrap had previously examined Mrs Bromley’s solitaire diamond engagement ring. She wanted him to take over the job of redesigning and creating a new ring. Mrs Bromley placed the three-striped plastic bag on the counter, opened it, removed the separate bags in front of Mr Giltrap, and handed the bag marked “5.9 x 1” to him to discuss the arrangement. He opened the bag and said: “sorry I think that I have some bad news for you”. He opened his loop and said: “This is not your diamond, this is quite brown, definitely not white and nowhere near your colour” and that there was a black spot on the underside of the diamond and no “wisp” line on the top. He measured it at 5.7mm and told Mrs Bromley that it was of much lesser value than her engagement ring diamond. Attention then turned to the other bags of diamonds. [26] Exhibit UX to the attachment to Mrs Bromley’s application is a Certificate of Valuation of Kym Hughes F.G., F.G.A.A, Dip D.T. Dip Val (NCJV Registered Valuer Reg Q151 Diploma of Applied Gemmology (Valuation) Diploma of Diamond Technology, Gemmologist) dated 25 May 2020 on behalf of Symmetry Jewellery Valuation Specialists for Mrs Bromley, valuing one loose diamond, Cut – round brilliant, Spread – 5.79 – 5.76mm, Depth – 3.49mm, Colour – K/L (brown tint), Fluorescence – strong blue, Clarity – S12, Girdle – thick bruted, Weight = 0.79cts., at $4,400.00. Exhibit QX to the attachment is a letter dated 1 August 2020 from Trent Giltrap of Diamond Vault GC addressed “To whom it may concern” stating the following: This letter is to confirm that Mr Bromley brought his (sic) rings into the Diamond Vault for consultation of remodelling and the diamond that was brought in while mounted in the ring is not the same diamond he currently has loose. The diamond I viewed during the consultation was a minimum H colour and had a wisp running through the table of the diamond and the loose diamond he currently has does not have the same markings. -- 12 of 49 -- 13 [27] Mrs Bromley removed Ms Amor’s reconciliation note from the larger plastic bag in Mr Giltrap’s presence. After matching the other bags with the note, she discovered that several other diamonds were missing as well: 4.01 x 4, 3.1 x 6, and 2.9 x 2. She said that her engagement diamond had been “switched” and the 12 smaller diamonds were missing. Mrs Bromley said18 that the 12 missing diamonds comprised: (a) 4 x 4.1 mm sized 0.25ct diamonds of H colour, SI clarity taken from her Family Ring (Accord 31 March 2005 – valuation $5,125.00). (b) 6 x 3.1 mm sized diamonds of G colour VS clarity of which 5 (5 = 0.53ct) were taken from her Eternity Ring (Parker and Sons 6 August 1999 – valuation $2,570.00) and 1 from her Queens Ring. (c) 2 x 2.9 mm sized diamonds of undetermined colour and clarity taken from her Comfort Ring (Symmetry 25 September 2020 – valuation $505.00). [28] Mrs Bromley said she gathered up all the bags and contents and returned to confront Mr Ward. He said he had checked off and counted out all the diamonds before they left the store. A lengthy account of subsequent discussions appears in paragraphs 103 to 151 of the attachment, which it is not necessary to repeat here. Having left the CTJ shop a second time, Mr and Mrs Bromley then telephoned Ms Amor. She told them that the diamond from Mrs Bromley’s engagement ring was brilliant white with a fracture on top, not brown, and said that Mr Ward took possession of the engagement ring and other diamonds from Ms Amor when she was put on leave. The next day, Mrs Bromley reported her diamond loss to the police. Mr Ward sent Mr and Mrs Bromley a without prejudice letter dated 14 May 2020 (see exhibit LX). It did not contain a settlement offer but referred to an investigation and said that Mr Ward was waiting on an answer from one of his jewellers who was working there and “may of (sic) mixed yours and our stock after un-setting the stones, which you say are missing.” [29] In that letter to Mrs Bromley, Mr Ward said: If there was a mistake, that is why I laid out all the packets (sic) in front of you so you could (sic) inspect, so we were all on the same page when you left, that you had inspected and were happy. I presumed (sic) we were and you signed off and left the store, that was all ok by you, you had all the rights (sic) to look at each of the stones and inspect instore before you left. …. When we have finalized all of the avenues, looked at all the footage, we will get back to you. …. I do remind you that your description of your G VVS with a white line across the stone makes that stone a i1 stone that is under a Si2 clarity. You have not seen the stone outside of the ring for 20 years I believe? so (sic) before accusing us maybe the person or persons who sold you the stone, may be what you call dishonest. [30] In June 2020, Mrs Bromley noticed a page on CTJ’s website. A copy is marked PX. Under the heading “Frequently Asked Questions”, CTJ asked “When I leave my 18 See the last typed page of the attachment to the Application, under the heading “Brief of Actions”. -- 13 of 49 -- 14 jewellery for repair, how will I know I’m getting back the same diamond, or gemstone?” On the same page, CTJ answered the question thus: For over 18 years CTJ has been earning the trust of our customers through outstanding service and exacting attention to detail, including a stringent protocol for accepting jewellery for repair. During our “take in” procedure, we will examine your diamond or gemstone under a 10 x loop and you’ll be invited to look also, so you can see what’s unique about your jewellery. We’ll then note any special characteristics of your diamond or gemstone right on the repair envelope and give you a copy for reference. Repairs are performed on-site so your jewellery never leaves our store. When you return to pick up your jewellery, we’ll re-examine it under a loop with you and review the notations and characteristics of your diamond or gemstone. Recognising what’s unique about your jewellery, you’ll be assured that this is the same piece you left in our care. (the CTJ protocol)19 [31] Exhibit VX to the attachment is a letter dated 14 September 2020 from Kym Hughes (whose qualifications are also referred to in Exhibit UX) estimating, sight unseen for retail purposes, the retail replacement value of one loose round brilliant cut diamond, Diameter – 5.96mm, Colour – G, Clarity – VS, Weight = 0.80cts, at $15,000.00 to $13,000.00 (based on given specifications) with the following qualification: The estimated value of a diamond with the above specifications would vary because of the following factors – how well the diamond is cut, if the diamond is fluorescent, if the diamond has an internationally recognised laboratory certification and if the clarity is VS1 or VS2. Because of these variables I have given a range for the value. This value is for retail replacement. [32] In oral evidence on 8 April 2021, Mrs Bromley said: So we went in on that day. We would have been there a good hour if not longer. When they did look at – my diam(ond) – and especially Leanne Amor, his shop assistant, she looked at it seeing it was a very white lovely diamond and she could see a little wisp in it, is what she called it. A little wisp which is a little line that went across it which you couldn’t see with the – with the naked eye. You had to look through the loupe and they were both inspecting everything and then she took all my diamonds and she put them all on the photocopier and she photocopied them all. And – and I said, “Can I trust you with my diamonds?” And she said, “That’s what we do here. That’s what we do.” And then, as I said, we were there a long time. Mr Ward came over and measured my finger and looked at the diamonds and explained about his – yes – no.20 [33] Mrs Bromley said that all she wanted was her 30-year engagement ring back on her finger and that: “My diamond that we chose 30 years ago. I’ve never taken it off. As you can see, I still have the dint and … that’s all I wanted.”21 She referred to a certificate of A.J. Walsh of Robert. H. Parker & Sons Pty Ltd, dated 7 April 2021, received that morning, which she tendered in evidence. It is marked Exhibit A1. Omitting header and signature, that certificate reads as follows: 19 My term for it. 20 Transcript 8 April 2021, T1-7, lines 28 to 38. 21 Ibid, T1-34, lines 5 to 9. -- 14 of 49 -- 15 THIS IS TO CERTIFY THAT THE GIVEN FIGURES FOR THE ARTICLES MENTIONED BELOW REPRESENT IN MY OPINION THE REPLACEMENT VALUE FOR EQUIVELANT OF SIMILAR PIECES FOR INSURANCE PURPOSES DEPENDING ON AVAILABILITY. TO THE PROPERTY OF: Mr and Mrs Bromley 1. Engagement ring, claw set with one brilliant cut diamond made in 18ct yellow gold. TOTAL DIAMOND WEIGHT: 0.80ct. Diamond: $12,800.00 Ring: $1,400.00. 2. Eternity ring, claw set with five brilliant cut diamonds made in 18 ct yellow gold TOTAL WEIGHT OF DIAMONDS: 5 = 0.53 ct. COLOUR/CLARITY: G/VS. Diamonds” $1,590.00 Ring: $1,550.00. These prices are based on valuation dated 6th August 1999 to reflect current values, 0.80ct diamond based on G colour and VS clarity as would have been according to value from 1999. TOTAL VALUE: $17,340.00. Seventeen thousand, three hundred and forty dollars Gold at $1,743.21 USD p/oz Exchange rate at $0.7665 USD [It is convenient here to note Ms Duffield’s evidence about Exhibit RX attached to Mrs Bromley’s statement, the original valuation by A.J. Walsh dated 6 August 1999. She said that it and Exhibit “A1” were: “Exactly the same. Doesn’t have any description”22 (of the diamonds) and that Mr Ward said that as with Exhibit RX: “Again, it doesn’t say anything about the size, colour, clarity of the diamond.”23] Cross-examination of Mrs Bromley [34] Under cross examination by Counsel for the Respondents on 15 September 2021, Mrs Bromley said that: (a) Mr Ward did not open any of the bags of diamonds when she picked them up from the store;24 (b) she trusted him that she was getting everything back;25 (c) the wisp in her engagement diamond was not visible to the naked eye but only through a loupe;26 22 Ibid, T1-36, line 24. 23 Ibid, lines 39 to 40. 24 Transcript 15 September 2021, T1-20, lines 1 to 32. 25 Ibid, lines 35 to 42. 26 Ibid, lines 44 to 48. -- 15 of 49 -- 16 (d) when she brought the diamond back, Mr Ward identified it as lightish brown without looking at it through the loupe;27 (e) hers was not a brown diamond;28 (f) Mr Ward was with Ms Amor (Leanne) when she gave the diamonds to her and they both looked at it (the engagement diamond) through the loupe;29 (g) twelve diamonds were missing;30 (h) she knew of the sizing because of other paperwork received from CTJ;31 (i) the bags weren’t opened on the journey between stores;32 (j) they were all in her bag.33 [35] Counsel for Mr Ward and CTJ did not put to Mrs Bromley that her claim was made dishonestly or that she had conspired with her husband Mark Bromley to defraud them. Mrs Bromley’s self-re-examination [36] In self re-examination, Mrs Bromley referred to exhibit DX accompanying the attachment to her application showing where her diamonds were going in the new ring and another of their lists.34 She said the crossed ones were missing, so “that’s how we knew what were missing and what sizes”.35 Additional documentary evidence tendered by Mrs Bromley [37] Exhibit “A5” is a letter “To Whom It May Concern” from Diamond Vault GC (Mr Trent Giltrap identified in exhibit QX referred to in Mrs Bromley’s sworn evidence) tendered by Mrs Bromley at the hearing on 30 April 2021 stating: The Diamond Vault GC received a telephone call from Mr Greg Ward to question the clarity of the centre diamond in question in which I replied that we hadn’t gone too (sic) in depth other than it was eye clean, I was basically filled in by Mr Ward as to the situation and was asked to put something in writing as he said us jewellers need to stick together. [38] Mrs Bromley told the Tribunal that Mr Ward had contacted one of her witnesses, another (this) jeweller.36 [It is convenient to note here that Mr Ward said that he did contact him yesterday37 and – “I was asked to put something in writing [indistinct] stick together. There’s a lot of people who say a lot of things. That doesn’t mean anything, your Honour, anyway. There, I read it.”38] 27 T1-21, lines 1-16. 28 Ibid, lines 20 to 24. 29 T1-22, lines 16 to 29. 30 T1-23, lines 3 to 10. 31 Ibid, lines 11 to 12. 32 Ibid, lines 36 to 44. 33 T1-23, lines 44 to 46 and T1-24, lines 1to 2. 34 T1-25, lines 9 to 20. 35 Ibid, lines 14 to 17 and see exhibit CX, the crosses apparently written on the list by Mrs Bromley. 36 Transcript 30 April 2021, T1-20, lines 1 to 10. 37 Ibid, line 12. 38 Ibid, lines 33 to 35. -- 16 of 49 -- 17 Ms Amor [39] Leanne Amor attended the hearing on 15 September 2021 by telephone under Notice to witness to attend to give evidence issued by the Tribunal at Mrs Bromley’s request and served. Under affirmation, Ms Amor said she sent an email to Mr Ward on 12 May 2020 after a call from Mrs Bromley.39 She said the content of the email was true and correct.40 Mrs Bromley asked Ms Amor about that email41 and put to Ms Amor that she said the following to Mr Ward in it: As you would know, we were doing a CAD design to fit the diamonds. You assisted me with this job and measured all the diamonds out for the CAD. I believe some of the diamonds were used to put into the bangle we made upon your request and approval, as we didn’t have them in stock at the time. I trust that you would remember doing this as we needed the bangle completed by deadline and this was the quickest way.42 [40] Mrs Bromley asked Ms Amor to expand on this and Ms Amor said: Bernadette, with the bangle, it was a very similar design to the ring we had CAD-ed up for you. There were specific diamond sizes in the bangle that we needed to get the job done urgently, and I recall Nathan coming to me, saying that we didn’t have the 4.1 mil diamonds that needed to go into this bangle, and we wouldn’t have had the time to order them in, in time to have the bangle ready for pick up. So, Greg agreed to use some of your diamonds, the smaller ones, that were in your job packet to get the job finished, and he said he was going to replace the diamonds.43 [41] Ms Amor had received an email from Mr Ward on 13 May 202044 which read as follows: Hi Leanne we have had 4mm stones in stock for 6 months as we use these for earing studs. They claim there are several stones in packets that are missing …. Do you know or remember anything about those as I do not. Mark came into the store with Bernadette and I gave them everything that was in the packet and checked every packet off in front of them. Mark signed off on receiving them and off they went. ….. Mark is also an accused fraudster etc. … They were certain their 80pt was a G vvs as it had a big white line across the centre, that was both of their words. I then said a vvs stone you need a microscope to see an inclusion. I placed all the stones out in front of them and they signed off on the whole lot, they went to someone it seems who told them that their stone is not what they had. So my question is are they accusing you of switching their 80pt diamond? Because we don’t (sic) have any reason to touch their packet and switch diamonds. All of this is not what it seems and very disturbing. ….. It is situations like these and others (sic) that we will enforce stricter guidelines in all areas of the business. With regard with (sic) work we are still monitoring 39 Transcript 15 September 2021, T1-63, lines 28 to 46. 40 Ibid, lines 29 to 30. 41 T1-71, lines 10 to 47 and T1-72 at lines 1 to 2. 42 For the complete text, see exhibit A3 filed on 30 April 2021. 43 Transcript 15 September 2021, T1-71, lines 23 to 30. 44 See Exhibit A1, so marked and filed on 15 September 2021, the second email in the thread. -- 17 of 49 -- 18 the situation with Judy (sic) and formulating new guidelines for staff moving forward. [42] Ms Amor replied by email to Mr Ward on 14 May 2020,45 which she said in evidence was true and correct in content.46 It read as follows. Hi Greg, I trust that you received my text with the Bromley’s email address. I remember we had Nathan unset all the diamonds and separate (sic) them all in individual packets. I measured some of the bigger stones and some of the smaller ones so you and I could give the measurements to the cad department. I remember you measuring the diamonds also just to make sure I got the measurements right. As we know the cad design was changed a few times and then put on hold before Covid19 as Mark was considering purchasing a bigger stone for the centre. during (sic) this time, the job packet remained in the cad box awaiting a go ahead. Mark was advised of the extra charges for the cad changes. i (sic) believe we used some of their smaller stones to put into a diamond bangle and as i (sic) recall you said you would credit them or replace them. I told Mark that we are a reputable business and would not risk our reputation in doing what they are suggesting. You have obviously done your homework on Mark all good and well and it’s not a good situation at all. Bernadette phoned me today saying that she is not allowed to enter the store, otherwise you would call the police. I told her there would be no cause for us to retain any of her diamonds. Im (sic) sure the cameras will give you the answers you need moving forward. The job packet was in the drawer with all of its contents prior to me being stood down. I hope this helps as its as much info as I can give you. Regards Leanne Amor. [43] When asked what the job packet contained, Ms Amor said “it obviously had Mrs Bromley’s jewellery, it would have had a receipt from the POS system in there, a photocopy of the ring she had left behind, and CAD images they were working on would all have gone in there, the diamonds would have been obviously all separated by the jeweller upstairs and put in separate packets and that would be the contents of the job packet. And it’s a sealed plastic bag, so sealed at the top, and everything pretty much stays together wherever it moves to, whether it’s in the workshop, or it goes on Greg’s desk, or it goes in the hold box, wherever it moves it all stays together.” When asked who the jeweller was, Ms Amor answered “Nathan McMahon”. I asked Ms Amor where the CAD box was kept. She said: “we used to keep (it) near the front door of the store in one of the drawers, and then we changed it to be in the safe”. When asked when the change was made, Ms Amor said “I guess after the situation happened … between the Bromleys and Greg.” She said that she placed the job packet in the hold box at the front of the store in a drawer at Mr Ward’s request and telephoned Mr Bromley to pick it up.47 45 See Exhibit A2, so marked and filed on 15 September 2021. 46 Transcript 15 September 2021, T1-64, lines 43 to 48 and T1-65 at lines 1 to 29. 47 Ibid, T1-65 at lines 31 to 45 and T1-66 at lines 1 to 22. -- 18 of 49 -- 19 Cross-examination of Ms Amor [44] Ms Amor gave the following evidence under cross examination by Counsel for Mr Ward and CTJ.48 She said that putting one customer’s diamonds in a different customer’s jewellery had been done before,49 that she is not a qualified jeweller;50 that this was not appropriate behaviour;51 that doing so would be dishonest;52 that such a person would be disreputable;53 that she would not agree to do it herself;54 that she would not do it if asked;55 but that: I can assure you that it was okayed by Greg to use the diamonds from Mrs Bromley’s packet for an urgent job to complete.56 [45] In answer to a question of mine, Ms Amor said that Mr Ward okayed the use of Mrs Bromley’s diamonds in the jewellery of another customer without Mrs Bromley’s knowledge, to be replaced before pickup.57 Upon further questioning by Counsel for CTJ and Mr Ward, Ms Amor said that she didn’t object to following Mr Ward’s instructions58 because “when the boss tells you that something needs to be done on the effect of another job being urgently made, that’s what – that had to be done”.59 On the other hand, Ms Amor admitted that she told the Bromleys that CTJ was a reputable company and admitted that “they came to the store upon trusting myself and me obviously giving good rapport to the business itself”.60 [46] Ms Amor said that she believed that all the diamonds were in the packet to be picked up, but she actually wasn’t there doing the handover61 and “I would have assumed (sic) that Greg would have replaced them before they were picking them up”62 but that what she told the police was what Mrs Bromley brought in she picked up.63 She said that the same sized diamonds could have been replaced from stock64 and that Nathan was setting the other customer’s bangle with the small diamonds referred to in her email dated 14 th May 2020.65 She said that it did happen.66 Ms Amor admitted that she had been in a dispute with CJT but said that it had nothing to do with the Bromley case which had no bearing on Ms Amor’s case.67 48 Transcript 15 September 2021, T1-73 ff. 49 T1-74, lines 15 to 18. 50 T1-74, lines 4 to 5. 51 Ibid, lines 25 to 29. 52 Ibid, line 31. 53 Ibid, lines 33 to 34. 54 Ibid, lines 36 to 37. 55 Ibid, lines 39 to 40. 56 Ibid, lines 42 to 45. 57 T1-75, lines 1 to 9. 58 Ibid, lines 12 to 14. 59 Ibid, lines 15 to 18. 60 Ibid, lines 20 to 23. 61 Ibid, lines 27 to 30. 62 Ibid, lines 33 to 35. 63 Ibid, lines 40 to 41. 64 T1-76, lines 1 to 4. 65 Ibid, lines 6 to 9. 66 Ibid, lines 21 to 23. 67 Ibid, lines 25 to 38. -- 19 of 49 -- 20 Re-examination of Ms Amor by Mrs Bromley [47] In re-examination by Mrs Bromley, Ms Amor said that she had never been under police investigation for stolen diamonds, jewellery, and money.68 She said that an allegation by Ms Duffield that Ms Amor had opened and closed off accounts in her name with money in excess of $17,000 owing was not correct at all, that there never has been a police investigation and that she does not have a criminal record.69 Mr Ward [48] In oral evidence under affirmation on 8 April 2021, Mr Ward said that he is a salesman, not a jeweller;70 Exhibit R2 produced to the Tribunal that day is a CAD design of the new ring for Mrs Bromley by the Indian company;71 The items were given to the Indian company on the sheet of paper.72 [49] In his affidavit sworn on 31 August 2021, Mr Ward said the following. He resigned his directorship due to ill health, no other reason. He said that CTJ employed the following staff “relevant to these proceedings”: Jeweller Nathan McMahon between 2000 and 2021; Contract Jeweller Michael Mortensen from time to time over the last 18 years; Sales Assistant Jermaine Gulliver between 2003 and 2021; Leanne Amor as part time sales assistant between 2010 and 2015 and sales assistant from 2015 to 2020 when she left to New South Wales; Janet Roach as sales assistant between 2003 and 2020 and general manager from 2021; and Dianne Duffield as general manager between 2013 and 2021 who became director when he resigned. [50] Mr Ward said that they had a system in place for clients leaving jewellery for repair, resizing or re-modelling, involving computer data entry of their name and details, job description, quotation or estimate of cost, description of jewellery delivered for work to be performed, and a time frame for completion. The customer received a receipt and two additional copies retained went to the jeweller and the daily bundle of job reports. Jewellery delivered for remodelling would be photocopied for CTJ and the customer. Any gemstone distinguishing marks would be explained to the customer, including inclusions that might cleave or break a gemstone. Then, the jewellery would be placed in a plastic zip lockable sleeve with the receipt and instruction to the jeweller, then taken to the jeweller upstairs or placed in a sequentially marked plastic container in the fireproof two door combination lockable safe overnight when not with the jeweller.73 Return of a customer’s jewellery involved asking the customer to inspect it and sign an acknowledgment of receipt. [51] Mr Ward said that Mr and Mrs Bromley were customers in February 2011 when they asked CTJ to repair one 18carat yellow gold 5 stone diamond ring, replace claws and set a missing diamond into the ring, the same ring that Mr Ward believes is the subject of these proceedings. Therefore, the diamond claimed to have gone missing “could 68 T1-77, lines 20 to 25. 69 Ibid, lines 26 to 35 and lines 37 to 42. 70 Transcript 8 April 2021, T1-26, lines 6 to 9. 71 Ibid, T1-29, lines 19 to 24. 72 Ibid, lines 41 to 45. 73 See paragraph 20 “if the customer’s jewellery is kept in the safe” and exhibit GW3 and GW3A; also, see paragraph 21 “if the jewellery is taken upstairs” but compare paragraph 52 in respect of customer’s goods on hold kept by CTJ in the “front drawers described by Mrs Bromley” that are never locked. -- 20 of 49 -- 21 not be the same diamond as claimed by Mr and Mrs Bromley as we were instructed that the diamond was missing in 2011 based on our records.” [52] Mr Ward said that Leanne Amor dealt with Mr and Mrs Bromley mostly. They delivered “a number of items of jewellery” for remodelling and Ms Amor found a design. Ms Amor asked Mr Ward to source “some stones”, first 1 carat then a larger “stone” but Mr Bromley “could not afford the larger pieces to replace the old centre stone”. He recalls asking Ms Amor to “measure the stones etc which were removed from Mrs Bromley’s jewellery” which were then placed into individual packets which Ms Amor marked with the sizes and quantities of diamonds removed. Mr Ward said he knows this because “I recognise Leanne’s handwriting on all the packets”. He recalled the main gemstone was a diamond with an inclusion because “Leanne must of (sic) asked me to look at it” and that Ms Amor came up with a design that was then sent to a CAD designer in India. He said that Mrs Bromley did not know what size diamonds she gave to CTJ and that the only notations were on the packets and on the CAD designer’s picture marked exhibit GW5. He said that reference by the CAD designer to a 5.96mm main stone was incorrect, that it was 5.9mm as noted on the packet. [53] Mr Ward denied that “they” used Mrs Bromley’s diamonds in another customer’s bangle job as alleged by Ms Amor or that he said he would credit Mrs Bromley, he said that they had ample smaller diamonds at any one time and have never used a client’s gemstones in another client’s jobs and “I know the diamond bangle job as I have reviewed CTJ’s records regarding this particular job which was completed before the Bromley’s job so the diamonds could not be used as suggested by Leanne Amor”. He said that only he and general manager Dianne Duffield were present on the day Mr and Mrs Bromley attended CTJ’s premises to pick up “their goods”. He said that CTJ had been waiting on approval to go ahead with the job for a couple of months and that the front drawers depicted in a copy of a photograph marked GW7, which were never locked, “were where goods on hold were kept by CTJ.” [54] Mr Ward said that “Mr Bromley had access to his packet with his stones at all times.” He said that he opened the drawer and found “their packet”, removed all the separate packets that were “made up of the different sized stones” in front of Mr and Mrs Bromley, began counting out the larger of the diamonds on the counter in front of them, and that there were several other packets with “very small stones in them”. He said that he then asked Mr and Mrs Bromley “do you want to count them” or words to that effect but could not now recall what their answer was and “… if everything is ok can you please sign to say you have retrieved all your diamonds and settings?” or words to that effect, and that he wrote on the receipt in front of them “Client picked up rings”. He then asked Mr and Mrs Bromley to “sign” and he signed off himself “as proof that they had picked up all stones and gold.” Mr Ward said that there was ample time during this whole process for the Bromleys to “look at the one large stone that was in the packet”. Exhibit GW8 is a copy of the signed receipt and “(it) clearly states “Please note CTJ store policy select carefully and inspect items before leaving the store”. Exhibit GW 8 has handwritten on it “CLIENT PICKED UP RINGS”. The full printed text on the receipt reads: PLEASE NOTE CTJ STORE POLICY Items purchased from CTJ have a 14-day change of mind policy to return an item for exchange only. We do not give refunds. Only store credit. 50% deposit -- 21 of 49 -- 22 is required for any special order or makes. Deposit will be withheld in a case of cancellation. Select carefully and inspect items before leaving store. [55] Mr Ward said the Mr and Mrs Bromley returned just before closing time. He recounted the verbal exchanges.74 He said that he did not take any gold and diamonds from “Mr and Mrs Bromley’s packets” and searched all packets retained by CTJ but could not find any belonging to them. He spoke with all members of staff and they did not know of any gems or stones matching the description of those claimed to be missing. Ms Amor denied that any were missing. He said that neither he nor CTJ swap stones and had no reason to steal stones. He said he’d have no reason to destroy a reputation over 20 years over something like this. He referred to Exhibit GW 10, a screenshot of pricing, and said that a stone with a fracture matching their description would cost approximately US$890 to US$1300. He disputed the Bromley valuer’s valuation and said “I deal in GIA certified diamonds constantly as this is my business and I have knowledge of diamonds with fractures.75 [56] Mr Ward referred to the other customer’s bangle and explained why it could not be the case that Mrs Bromley’s diamonds were set in it.76 Referring to exhibit GW14, he referred to Ms Amor’s statement that Mrs Bromley’s job packet was in the drawer prior to her taking leave on 30 March 2020.77 He said that bangle was picked up on 7 March 2020 and that it was therefore impossible for Mrs Bromley’s stones to have been in the packet as of 30 March 202078 as Ms Amor said in her email to him dated 14 May 2020 (Exhibited GW14). He said that Ms Amor herself took “the same size stones in a pair of diamond studs on 14 February 2020 which she did on her personal account with CTJ” and refers to exhibit GW16, and that she owes CTJ “in excess of $17,000 in stock and free labour and materials supplied to her by CTJ”.79 He referred to Ms Amor having unsuccessfully claimed 12 weeks workers compensation after “leaving unexpectedly to travel to New South Wales where she now resides.”80 He also said Ms Amor made a “false” claim in Linkedin that she was a diamond merchant and store manager at CTJ “from 2008 to present”, whereas that was never the case.81 [57] In the remaining paragraphs82 of his affidavit, Mr Ward said that Mrs Bromley’s claims are false, he referred to the police investigations and that he (Mr Ward) cooperated fully, said that the 1999 valuation by Robert Parker of Mrs Bromley’s ring omitted any reference to colour or clarity of her solitaire diamond, that neither Mr or Mrs Bromley knew what they bought in 1990, that he spoke with Andrew Walsh of Robert H Parker & Sons on about 26 April 2021 who could not remember anything about the rings, and that he subsequently received a letter from Robert H Parker & Sons dated 27 July 2021 (Exhibit GW23), and that he “obtained a picture and certificate of a stone very similar to the Bromley’s description” showing poor clarity and low grading. 74 Affidavit of Gregory Roy Ward sworn 31 August 2021, paragraphs 64 to 88. 75 Ibid, paragraphs 89 to 96. 76 Ibid, paragraphs 100 to 109 and see photocopies of the bangle – exhibit GW13, undated. 77 Ibid, paragraph 106. 78 Ibid, paragraph 113; and see paragraph 6 of the letter from CTJ’s solicitors dated 26 March 2021 exhibited GW17 to Mr Ward’s affidavit. 79 Ibid, paragraphs 110 to 112. 80 Ibid, paragraph 113. 81 Ibid, paragraphs 114 to 115. 82 Ibid, paragraphs 116 to 146. -- 22 of 49 -- 23 [58] Exhibit GW23, a copy of the letter dated 27 July 2021 referred to by Mr Ward, signed by A.J. Walsh F.G.A.A. DIP D.T. RV142, addressed “To Whom it may Concern”, reads as follows: I was requested by Mr and Mrs Bromley to revalue the diamond solitaire ring as described, set with 1 = 0.80ct diamond. The original valuation did not state a colour or clarity grading and I was asked to give them an idea of value based on a G colour and VS clarity. This opinion valuation was completed 7th April 2021. As stated to both parties, I have no recollection of the original diamond. I have no records of the grading of the stone from over 20 years ago when the original valuation was dated. I cannot state what the colour and clarity of the diamond in question is. Mrs Duffield [59] In her affidavit sworn 31 August 2021, Dianne Duffield said that she has worked at CTJ since 2012 and that no client to her knowledge has ever accused CTJ of switching, taking, or changing, their diamonds, nor has she ever witnessed anything “underhanded, untoward, or in any way shape or form considered anything other than above-board, professional, and ethical activity.” Mrs Duffield said that she discovered two closed accounts of Leanne Amor when staff were on leave during the first Covid outbreak in 2020. They had “zeroed out balances” and then were deactivated from the system, but subsequently reactivated by CTJ’s POS provider for her to view. There was also one current account. She said: “The monies owed to CTJ are in excess of $17,000.00 in jewellery purchases in respect of these accounts in her name” but acknowledged that Leanne Amor denied any wrongdoing. She said that Ms Amor claimed the two accounts were “paid for” but has not provided her bank statements to prove that. It is still in dispute. [60] Mrs Duffield referred to the altercation on the afternoon that Mr and Mrs Bromley returned to the CTJ shop. She heard the disturbance. She said that Mr Bromley raised a menacing voice from the back of the shop where Mrs Duffield was serving clients. She heard loud “screeching” and “do not buy from these people they switch and steal diamonds” or words to that effect. She said that she told Mrs Bromley that she would check upstairs with ‘the jeweller’ and call her. The jeweller upstairs told Mrs Duffield that he knew nothing more than that Leanne Amor asked him to remove all stones from their respective settings. Ms Duffield says that she and Mr Ward checked all drawers, the safe, and all boxes, as well as clients’ finished jobs, but came up with nothing. Ms Duffield said that she spoke with Robert Parker and Sons about how he could “guess” the colour and clarity of a diamond 20 years previously. He told her “it was the wrong thing to do” and subsequently emailed a “retraction”.83 Exhibit DD1 is a copy of the valuation dated 7 April 2021 and subsequent “To whom it may concern” letter dated 27 July 2021 by A.J. Walsh. They are the same documents referred to as exhibit GW23 to Mr Ward’s affidavit. Mr McMahon [61] In his affidavit sworn on 30 August 2021, Nathan McMahon said that he has worked as a jeweller for Mr Ward, and later for CTJ, since 1999. He custom makes, and repairs, jewellery, and sets and removes diamonds as required. He said that he had never been asked by Mr Ward or someone else to swap a customer’s diamond, 83 A mischaracterisation, in content a clarification. -- 23 of 49 -- 24 gemstone, or precious stone without the prior knowledge or consent of the client, and nor had he done so of his own accord. He has worked with 10 different jewellers at CTJ and to his knowledge none of them have been asked or done so either. He said that was aware of Ms Amor’s allegation that Mr Ward requested a customer’s diamonds be used in another job, a bangle. Mr McMahon said that there were only 2 jewellers working for CTJ at the time: himself and Michael Mortensen, and that he (McMahon) didn’t swap or use any of Mrs Bromley’s diamonds and that Mr Ward “does not possess the necessary skills to perform such a task himself.” Mr Gulliver [62] Mr Gulliver said in his affidavit sworn 30 August 2021 that he worked as a diamond sales assistant with CTJ or its predecessor for the past twenty years, that CTJ “operates with the highest standards and has strong protocols and procedures to protect our client’s jewellery”, and that he has never been asked, nor taken, any gems from any customer for use in another’s customer’s jewellery, nor has he ever exchanged diamonds. Any diamonds or other gems are sourced by CTJ through suppliers at wholesale rates. Ms Roach [63] In her affidavit sworn on 31 August 2021, Janet Roach said that she had been employed by CTJ for 18 years as a senior sales executive and in-house diamond grader, and recently as general manager. Exhibit “JR1” is a certificate of her having successfully completed a diamond grading course. She said that Ms Amor’s allegations of swapping customers’ diamonds were untrue, that she has never in 18 years of employment heard of, or witnessed, such practice. She said that Ms Amor was always “adamant about attending to her own clients at CTJ and would be quite upset if any staff member approached her clients unless asked to do so.” Ms Amor alone had dealings with Mr and Mrs Bromley, they were “her clients.” She took in their job and personally attended to their diamonds and jewellery. Ms Roach said that she was made aware that “… the diamond in question had a unique feature that may have been a whisp or fracture from the girdle of the diamond to the centre of the diamond” which “… in my professional opinion (this) would indicate that the clarity was either an “SI2” being not visible to the naked eye, or a “P1” which is visible to the naked eye.” Mr Cohen [64] In his affidavit sworn 30 August 2021, Roy Anthony Cohen said that he is employed as a qualified diamond grader and valuer by the Diamond Certification Laboratory of Australia (DCLA). His “qualifications are South African Jewellery Council (SAJC) Diamond Grading” and he worked for Anglo American Corporation for several years before joining a family trading company in South Africa and then commencing with DCLA. He has gained expert knowledge in grading and valuing thousands of diamonds since working with DCLA. He said that he has not been paid to give evidence, that Mrs Bromley, Mr Ward and CTJ were unknown to him before these proceedings, and that his evidence is based on over 25 years’ experience in diamonds, 20 of which as a diamond grader. He referred to the 4 Cs in grading, carat (weight), colour, clarity and cut. He says that “accurate diamond scales are used to measure carat weight and Sarin equipment is used to measure dimensions and angles and all other measurements of the diamond”. Colour is determined by “comparing the diamond to a master set of diamonds under specific lighting by multiple graders with -- 24 of 49 -- 25 colour ranging from D (colourless) to Z (yellow)”. Clarity ranges from “IF” (internally flawless) to “I3” (heavily included) and determined according to specific grading rules based on the number, position and size of inclusions and “a number of other factors”. [65] Mr Cohen said that there is a difference between a diamond grading report (on a loose diamond) and a valuation when a diamond is set in jewellery. When grading for clarity, the size of an inclusion is one of the main factors to be assessed. He said he is aware that in these proceedings the diamond was described as having a fracture or whisp from the centre to the edge so it would most likely be “I1” or “I2”, or an “I1” or lower if the inclusion was “visible with the eye”. Insofar as concerns the Valuations of Mrs Bromley’s diamonds (A.J. Walsh dated 6 August 1999 and 7th April 2021 of which copies are exhibited “A” to his affidavit), Mr Cohen said that a valuation is an estimate of the diamond’s 4Cs and “... cannot be accurate unless the diamond has a diamond grading report”. The diamond would be “measured with a presidium gauge or the like for accuracy and the weight calculated.” He said that valuations are done for insurance retail replacement purposes to ensure that the item can be replaced if there is a loss which “… usually means that the items are valued at an amount such that it can easily be replaced at a retail store.” He said that it is impossible to value Mrs Bromley’s diamond because the valuation did not have measurements or a colour and clarity grade on the main diamond. Mr Cohen said that in his opinion it is necessary to have an accurate description of the original diamond to establish whether it had been switched or swapped, without which there is nothing to compare. Police witness DSC Barry McAuliffe [66] Detective Senior Constable Barry McAuliffe (DSC McAuliffe) produced Police recordings on a CD-ROM disc of interviews of Mr Ward and Ms Amor to the Tribunal and gave oral evidence upon Notice issued and served by the Tribunal upon Mrs Bromley’s application. The recording is Exhibit A3 in evidence. Though called as a witness for Mrs Bromley’s case, Counsel84 for Mr Ward and CTJ asked to examine DSC McAuliffe in chief on 24 June 2021, to which Mrs Bromley did not object. The Detective Senior Constable swore that he had investigated Mrs Bromley’s complaint and that there was insufficient evidence to proceed with any criminal charges.85 Under cross examination, DSC McAuliffe said that he thought Mrs Bromley had informed him that Leanne (Ms Amor) might have changed her version but that “no-one has contacted me”.86 DSC McAuliffe said that Senior Constable Amanda Booker viewed CCTV footage but could not download it.87 He said he had a recording of the second time he spoke with Ms Amor.88 He said he received a telephone call from Mr Ward “yesterday or Wednesday”89 in relation to “some sort of agreement he tried to have with yourself”.90 He said he’d never met Mr Ward “prior to this job”91 and that Senior Constable Booker gave him a summary of what was on CCTV footage, but that it was very grainy and average, and “showed nothing”.92 84 Mr S Trewavas. 85 Transcript 24 June 2021, T1-4, lines 36 to 46. 86 Ibid, T1-5, lines 14 to 19. 87 Ibid, T1-6, lines 29 to 34 and lines 41 to 47; T1-7, lines 21 to 27. 88 Ibid, T1-14, lines 34 to 45. 89 Ibid, T1-17, lines 37 to 44. 90 Ibid, lines 37 to 45, referring to Mr Bromley. 91 Ibid, T1-22, lines 27 to 34. 92 Ibid, T1-23, lines 5 to 18. -- 25 of 49 -- 26 Police witness SC Amanda Booker [67] Senior Constable Amanda Booker gave her evidence by telephone on 24 June 2021 as a witness called by Mrs Bromley. She said that she only viewed CCTV footage of one occasion, after the altercation between Mr and Mrs Bromley and Mr Ward at the shop. She said that nobody knew how to download it.93 Under cross examination, Senior Constable Booker said that Mr Ward showed her “the machine” in the store.94 She admitted to being a customer of CTJ previously.95 She saw footage but could not see diamonds or other jewellery. She took a still photograph of one image with her police iPad just for identification of a male and female entering the store.96 The iPad has since been replaced. She could not recall whether Mr Ward was with her at the time. In answer to a question from me, SC Booker confirmed that she did not take custody of any footage of the store. She had been a customer of the store herself but had never done any (police) job there before.97 Police Interviews [68] The recordings on CD-ROM of Police Interview of Mr Ward on 18 July 2020 and Mr Ward and Ms Amor jointly on 19 August 2020 by DSC McAuliffe are not transcribed. I directed the Hearing Support Officer to make a copy available to each side and invited further submissions on the content. I have again listened to them carefully. The following is some of what those recordings contain. (a) Mr Ward told DSC McAuliffe in the telephone interview on 18 July 2020 that “I had all the diamonds sat out in front of me, checking them off”; “they (Mr and Mrs Bromley) signed the receipt and left”; “she signed the receipt”; “we had their diamonds sitting here for 3 to 4 months”. As regards the small diamonds, “maybe because I rushed … I didn’t check them off”; “I could have made a mistake”; “I don’t need pinhead diamonds”; I said “Yeah, I’ll do that for you and wrote them a letter but we never heard back from them”; In reference to CCTV footage, “I talked to a friend of mine, Amanda98 … she took a copy of the footage.” (b) Ms Amor told DSC McAuliffe during the in-person interview at the CTJ shop on 19 August 2020 that: “I was here when they brought the rings in the first time”; she was not there when Mr and Mrs Bromley picked their diamonds up; “what she (Mrs Bromley) brought in is what she picked up”; “I took everything in …. kept them in packets; when they took the diamonds out, they were all there.” (c) Mr Ward told DSC McAuliffe during the in-person interview at the CTJ shop on 19 August 2020 that: “we had to take everything out of the rings to measure everything” (the diamonds); “I had all the items sitting here to check”; “I lay everything out and I start ticking things off”; “not knowing the job … I just tick, tick, tick, tick”; “I hadn’t seen the job really, since they came in”; “I didn’t know your colour when he came in”; “if you can see (the) mark with your naked eye your stone is not what we call VVS” (very slightly flawed); “you need a 93 Ibid, T1-46, lines 20 to 44. 94 Ibid, T1-47, lines 7 to 17. 95 Ibid, lines 19 to 22. 96 Ibid, T1-49, lines 11 to 42. 97 Ibid, T1-50, lines 7 to 22. 98 SC Amanda Booker. -- 26 of 49 -- 27 microscope to see”; “ .. you know nothing”; “I don’t need your diamond”; “when they came back in said to me isn’t an 80 pointer … ours has got a mark on it”; “I looked at her diamond … put the ultrasonic on, I wanted to clean the diamond”; “ .. I said there is a bit of light brown in it … if (there is) a big mark on (the) centre then it is what we call a P1”; “ … if he’s got stung by somebody in Melbourne where he’s bought it?”; “if they got dudded in Melbourne because he doesn’t know anything about diamonds?”; “I would have had to find an 80 pointer diamond to swap it”; “the chances of me doing it because I don’t have any?”; “Amanda took the footage on the day” (d) DSC McAuliffe, in a leading question toward the end of the interview on 19 August 2021, asked Mr Ward and Ms Amor - “No-one has forced you to change your version?” to which Ms Amor audibly answered “No, it’s the same version.” Mr Ward did not dissent or refer the detective to Ms Amor’s earlier version in her email exchanges with him on 12, 13 and 14 May 2020. [69] Neither Mr Ward nor Ms Amor informed DSC McAuliffe of the fact and content of Ms Amor’s email to Mr Ward on 12 May 2020 (the day Mr and Mrs Bromley phoned her after discovering diamonds were missing) in the police interviews. Neither informed DSC McAuliffe that Ms Amor believed that some of Mrs Bromley’s diamonds were used in another customer’s bangle in accordance with Mr Ward’s request and approval, because CTJ did not have them in stock and the bangle had to be completed by a deadline. Neither Mr Ward nor Ms Amor informed DSC McAuliffe of Mr Ward’s email to her dated 13 May 2021 in response and her email back to him reiterating what she had said earlier, and that Mr Ward told her at the time that he would credit Mrs Bromley or replace the diamonds. [70] For completeness I note that, in her sworn evidence given to the Tribunal on 15 September 2021, Ms Amor agreed with Counsel for Mr Ward and CTJ that she had told the police (in the recorded interview) that “what Mrs Bromley had brought in she picked up”99 but, in response to the suggestion that this is not what happened, added “One would assume that to be the case but, as I said, I wasn’t there upon pick up, so.”100 In response to my question about how Mrs Bromley’s diamonds placed in someone else’s bangle could be replaced when they were to be picked up, Ms Amor said “He would have replaced them as in the size – the same size diamonds from stock.” She said that “Nathan was setting the bangle.”101 Inferences – Jones v Dunkel [71] The rule in Jones v Dunkel102 is that an unexplained failure by a party to call a witness or tender a document or other evidence may lead to the inference in appropriate circumstances that the uncalled evidence would not have assisted the party. The Judicial Commission of New South Wales in the Civil Trials Bench Book at [4-1910] explains: However, the rule is complex and unless appropriate circumstances are present, the court will not be bound to draw the adverse inference. Moreover, where the inference is drawn, the rule cannot be used to fill gaps in the evidence or to convert conjecture into suspicion: “(t)he failure [to call a witness] cannot fill 99 Transcript 15 September 2021, T1-75, lines 40 to 41. 100 Ibid, lines 43 to 44. 101 Ibid, T1-76, lines 6 to 8. 102 (1959) 101 CLR 298. -- 27 of 49 -- 28 gaps in the evidence, as distinct from enabling an available inference to be drawn more comfortably”: Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61 at [49]; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [64]. See J D Heydon AC, Cross on Evidence, 12 th edn, 2019, LexisNexis, Sydney at [1215]. [72] Counsel103 for the Respondents submitted that I should infer that Mr Bromley’s evidence would not have assisted Mrs Bromley had he been called to testify, however I decline to do so for the following reasons. Mrs Bromley is not a lawyer and was not legally represented in the Tribunal proceedings. There is nothing in the oral and documentary evidence of the parties and their respective witnesses that discloses any historical inconsistency in statements made by Mr Bromley to Mr Ward about the diamonds, their acquisition, their valuation, their delivery to CTJ and what was received back from CTJ. There was therefore nothing that Mr Bromley could usefully have added to Mrs Bromley’s evidence, other than confirming that, insofar as he was involved and accompanied her, what she had said was true and correct. Further, it appears in transcript that Mr Bromley, attending the hearing in support of his wife, thought that he would be called as a witness for the Respondents at one stage,104 though that was subsequently ruled out.105 Counsel appearing for Mr Ward and CTJ could have called Mr Bromley to give evidence with a view to having him declared a hostile witness, but did not do so. If Mr Bromley had been called to give evidence and objected to answering on ground of privilege against self-incrimination then it is that which will not have assisted Mrs Bromley’s case. Counsel for the Respondents did not call evidence from any other witness to support Mr Ward’s innuendo of a conspiracy between Mr and Mrs Bromley to dishonestly claim her diamonds had gone missing whilst in the custody of CTJ. It was not put to Mrs Bromley. It is that which left Mr Ward’s innuendo in the realm of mere conjecture and hypothesis. [73] On the other hand, in circumstances where they were legally represented, I draw adverse inferences from the failure of Mr Ward and CTJ to call the following relevant witnesses and produce relevant documents. [74] Nathan McMahon, in his affidavit, said that there were two jewellers working for CTJ at the time of working on Mrs Bromley’s jewellery and diamonds, namely himself and Michael Mortensen, and Mr Ward described Mr Mortensen as one of the staff “relevant to these proceedings”.106 However, neither the Respondents nor their legal representatives gave an explanation to the Tribunal as to why Mr Mortensen was not called to give evidence in the circumstances referred to by Mr McMahon. In circumstances where Mr Ward and CTJ were legally represented, I do draw the inference that Mr Mortensen’s evidence, if given, would not have assisted Mr Ward and CTJ. [75] Mr Ward and CTJ could also have called the customer for the other bangle job to which Ms Amor referred, but did not do so. Only they and certain CTJ staff knew the customer’s name and address. Neither Mr Ward nor CTJ explained why CTJ’s documents (records) for the other customer’s bangle job (other than the undated photocopy which is exhibit GW 13 to Mr Ward’s affidavit) were not produced to the Tribunal. Mr Ward’s sworn evidence was that he had reviewed CTJ’s records for that 103 Ms H Lilley. 104 Transcript 24 June 2021, T1-59, lines 1 to 20. 105 Ibid, lines 22 to 28. 106 See paragraph 10 of Mr Ward’s affidavit sworn 31 August 2021. -- 28 of 49 -- 29 job. They were plainly in CTJ’s possession and Mr Ward had access to them. They were material to corroborate his evidence, but neither Mr Ward nor CTJ produced them. Mr Ward’s evidence that Mrs Bromley’s diamonds could not have been used in the other customer’s bangle because the job “was completed before the Bromley’s job” remained uncorroborated. I draw the inference that the failure of Mr Ward and CTJ to call the other customer to give evidence and their failure to produce CTJ’s records of the diamonds involved and incorporated in that customer’s bangle job would not have assisted their defence. [76] Ultimately though, adverse inferences in isolation prove nothing. Discussion Mr Ward [77] I find that Mr Ward was an unsatisfactory witness, and the following examples serve to illustrate this. (a) His recollection, that Mrs Bromley’s main gemstone originally delivered was a diamond with an inclusion because Ms Amor “must have” asked him to look at it, was vague and imprecise. When interviewed by the police, Mr Ward told DSC McAuliffe that he hadn’t seen the job since107 it came in and he didn’t know the colour of her main gemstone diamond. (b) Contrary to Mr Ward’s evidence that Mrs Bromley signed a receipt for the diamonds when she picked them up, the receipt that he produced for her signature did not refer to diamonds at all, it merely stated that “Client picked up rings”. That, and only that, is what she acknowledged. Her diamonds had previously all been unset from the rings and placed in separate plastic bags. (c) On his own evidence, Mrs Bromley’s diamonds were contained in separate bags and, in an admission against interest, Mr Ward told DSC McAuliffe that “maybe” he rushed and didn’t check off the small diamonds. Though Mr Ward said in evidence that he began to count out the “larger” diamonds in front of Mrs Bromley, in his letter to her dated 14 May 2020 he said only that he “laid out all the packets in front of you … to inspect”, and nothing at all about counting diamonds. (d) Mr Ward gave no explanation in evidence as to why he and the company did not follow the CTJ protocol for receipt and return of customer jewellery which Mrs Bromley first saw on the website in June 2020, compliance with which was the way that a customer could be assured that what they were getting back was identical to that which they originally delivered to CTJ. (e) He told the Tribunal and Mrs Bromley that the police had downloaded and taken possession of CCTV store footage in disc format, whereas SC Amanda Booker gave evidence that this was not, and could not be, done, that no-one (not even Mr Ward) knew how to download it. That caused an adjournment because Mrs Bromley wanted the police to produce the CCTV footage in evidence, which could not be done because they never had it. By that stage, the original recording 107 My italicisation for emphasis. -- 29 of 49 -- 30 no longer existed because it was automatically wiped every 30 days108 as Mr Ward knew would, and did, occur. (f) Mr Ward told DSC McAuliffe that he had not changed his version of what occurred with Mrs Bromley’s diamonds but omitted to tell the Detective Senior Constable of the fact and content of emails between Ms Amor and himself dated 12, 13 and 14 May 2020 containing a materially different version of events to his. He omitted to tell the detective that Ms Amor said in that correspondence that Mrs Bromley’s smaller diamonds were used on his instruction in another customer’s urgent bangle job and that he told Ms Amor he would replace them but did not proffer any explanation for that omission. (g) In his email to Ms Amor dated 13 May 2020, the day after the altercation with Mr and Mrs Bromley and receipt of Ms Amor’s first email, Mr Ward did not deny that he had given Ms Amor instruction to use Mrs Bromley’s smaller diamonds in another customer’s bangle and that he would replace them, saying only that CTJ had 4 mm stones in stock for 6 months. (h) Mr Ward’s evidence that CTJ held stock of 4 mm diamonds at the time when the other customer’s bangle job was done was not corroborated with stock sheets proving the fact at that time. He admitted in his correspondence with Mrs Bromley that they (he and CTJ staff) may have “mixed” Mrs Bromley’s diamonds with their stock and was waiting on an answer from one of his jewellers, whom he did not name. (i) Mr Ward’s evidence that the other customer’s bangle job was completed before the Bromley job remained uncorroborated by production of CTJ business records or an affidavit from the other customer. Mr Mortenson, who was the only other jeweller with CTJ at the time, was not called to give evidence. (j) Mr Ward’s evidence that it was impossible for Mrs Bromley’s diamonds to be set in that bangle, because it was picked up on 7 March 2020, ignored the fact that Mrs Bromley’s diamonds were unset when she delivered her jewellery to CTJ on 13 February 2020, six weeks earlier. The conclusion did not add up. Having regard to the dates, the swap could have been made in the earlier period as Ms Amor alleged. (k) Mr Ward referred to Ms Amor’s email dated 14 May 2020 exhibited GW 14 as saying that Mrs Bromley’s diamonds were in the packet on 30 March 2020, however what Ms Amor in fact said in that email was: “The job packet was in the drawer with all its contents prior (sic) to me being stood down.” (l) Mr Ward said that the front drawers on the floor of the CTJ shop were never locked,109 that Mrs Bromley’s goods on hold were kept in an unlocked drawer110 on the floor of the shop for “a couple of months” awaiting approval to go ahead, and that he opened one of those drawers and found “their packet” when Mr and Mrs Bromley attended him to collect the goods. On the other hand, Mrs Bromley said he unlocked the drawer in which her rings and diamonds were kept on that day. 108 Affidavit of Mr Ward sworn 31 August 2021, paragraph 123. 109 My emphasis. 110 My emphasis. -- 30 of 49 -- 31 [78] It does not however follow from the instanced contradictions and his questionable credibility that everything Mr Ward said was false or unreliable. I accept Mr Ward’s evidence that he recognised Ms Amor’s handwriting of the sizes and quantities of diamonds removed from Mrs Bromley’s jewellery on the packets containing them, which he had asked her to measure, that customers’ jewellery for repair, resizing or remodelling would be taken to the jeweller upstairs or placed in a marked plastic container in the fireproof two door combination lockable safe overnight when not with the jeweller, and that goods on hold were not kept in the CTJ safe but rather in the drawers under the counter on the shop floor. Extraordinary though it is, having regard to the potential for theft or loss of valuable diamonds and jewellery, I accept Mr Ward’s evidence that those drawers were never locked. The fact that Mrs Bromley observed Mr Ward unlock a drawer containing her rings and diamonds on the day she attended to collect them does not establish that the drawer was always locked in the months during which the goods were kept on hold or that her on hold items were not otherwise kept in an on-hold drawer or drawers that were never locked, as Mr Ward testified. Though she might have done so, Mrs Bromley did not question Ms Amor in that regard. Nor did Counsel for Mr Ward and CTJ. Ms Amor could in any event not know what the practice was in her permanent absence interstate after 30 March 2020. Mrs Duffield [79] Mrs Duffield’s evidence carries limited weight. That, to her knowledge, no CTJ customer other than Mrs Bromley had ever accused CTJ of dishonesty and wrongdoing in the term of Mrs Duffield’s employment since 2012, did not prove that Mrs Bromley’s evidence was unreliable or false. As did Mr Ward, Mrs Duffield attacked Ms Amor’s credibility, referring to transactions involving alleged fraud and dishonesty during her employment with CTJ, but those allegations were denied on oath by Ms Amor, and, inconsistently with their allegations of fraud and dishonesty, neither Mr Ward nor Mrs Duffield made a criminal complaint of any sort against Ms Amor or commenced legal proceedings against her. [80] Mrs Duffield did not personally attend Mrs Bromley with Ms Amor and Mr Ward when Mrs Bromley delivered her jewellery and diamonds on 13 February 2020 or when Mrs Bromley collected her diamonds and jewellery from Mr Ward on 12 May 2020, nor apparently did she have any involvement in the Bromley job at any stage. Therefore, Mrs Duffield had no direct personal knowledge of what rings and diamonds Mrs Bromley originally delivered to CTJ and subsequently retrieved. Mrs Duffield’s evidence of what she observed taking place during the altercation at CTJ’s shop was irrelevant to the issue of whether Mrs Bromley’s diamonds were missing when she collected the bags of jewellery from Mr Ward on 12 May 2020, and her evidence that searches she made of the CTJ shop on 12 May 2020 for Mrs Bromley’s missing diamonds came up with nothing does not establish that Mrs Bromley had in fact received them from Mr Ward earlier in the day. [81] Though I accept that Mrs Duffield’s evidence of what Nathan McMahon said to her on 12 May 2020 is consistent with what he said in his affidavit, Mrs Duffield did not give evidence that she had investigated and spoken with the other jeweller employed by CTJ at that time, Mr Mortensen. Nor did Mr Ward. Contrary to what Mrs Duffield said in her evidence, A.J. Walsh of Robert Parker and Sons did not retract the diamond valuation dated 7 April 2021. Rather, in his email dated 27 July 2021, A.J. Walsh stated that he was asked by Mr and Mrs Bromley to revalue the diamond solitaire ring -- 31 of 49 -- 32 based on a G colour and VS clarity111 but he had no recollection of the original diamond, no records of the grading of the stone from over 20 years ago when the original valuation was dated and could not state what the colour and clarity of the diamond in question is. That amounted to a clarification, not a retraction. I do however accept Ms Duffield’s submission that neither the original valuation by A.J. Walsh dated 6 August 1999 nor the subsequent certificate of valuation dated 7 April 2021 on the replacement value of the equivalent of Mrs Bromley’s brilliant cut solitaire diamond stated the size, colour, or clarity of the engagement ring diamond. However, the valuations speak for themselves in content. Together with others and statements by others, they are in evidence as exhibits to Mrs Bromley’s statement attached to the Application, the truth of which she swore to in oral evidence. They were referred to in evidence of other witnesses, including Mr Ward and Ms Duffield. Mrs Bromley did not cross examine Mrs Duffield. Witnesses McMahon, Gulliver, Roach and Cohen [82] The affidavit evidence of Mr McMahon, Mr Gulliver, Ms Roach and Mr Cohen, none of whom were cross examined by Mrs Bromley, carries little weight because none of them were present with Mrs Bromley, Mr Ward and Ms Amor, when Mrs Bromley handed over her jewellery and diamonds on 13 February 2020 and when she collected them on 12 May 2020. Their evidence is also problematic and of limited weight for the following reasons. [83] Mr McMahon did not state the source of his information and basis of his belief that Mr Mortensen did not swap or use any of Mrs Bromley’s diamonds and that (historically) none of the 10 different jewellers working at CTJ had been asked by Mr Ward to swap a customer’s diamonds. Mr Mortensen did not provide an affidavit and was not called to give evidence. Mr McMahon’s affidavit evidence that none of the 10 different jewellers at CTJ had been asked to swap diamonds was hearsay. [84] Mr Gulliver’s unsubstantiated evidence that CTJ operated with the highest standards with strong protocols and protections to protect clients’ jewellery stated no basis for that assertion and gave no explanation for the apparent change in handling protocol on the CTJ website noticed by Mrs Bromley in June 2020. His evidence in that regard also stood contradicted by Mr Ward’s email to Ms Amor dated 13 May 2020112 in which he said that situations like Mrs Bromley’s (now) required enforcement of stricter guidelines113 in future or, in other words, whatever guidelines existed at that time were not strict enough, and was fundamentally at odds with Mr Ward’s own evidence that the front drawers where goods on hold (including Mrs Bromley’s jewellery and diamonds) were kept by CTJ had no locking system and were therefore not locked.114 [85] The stated basis for Ms Roach’s unsubstantiated assertion that Ms Amor’s allegations of swapping diamonds were untrue was confined to her own experience and observation. She was not privy to the dealings between Ms Amor and Mr and Mrs Bromley and, contrary to her sworn evidence that they were, Mr and Mrs Bromley were not in fact clients of Ms Amor personally. Ms Roach’s professional opinion on 111 My italicisation for emphasis. 112 Supra. 113 My italicisation for emphasis. 114 See paragraph 52 of Mr Ward’s affidavit sworn 31 August 2021. -- 32 of 49 -- 33 awareness from some unstated source that Mrs Bromley’s solitaire diamond was either an “SI2” or “P1” was, I find, unreliable and speculative. [86] I have no reason to disbelieve Mr Cohen’s evidence of his international expertise, experience and qualifications, and the process of diamond grading briefly summarised by him. However, his conclusion that Mrs Bromley’s solitaire diamond was most likely an “I1” (or lower with an inclusion visible to the naked eye) or “I2” carries little weight because it amounted to second-hand speculation based upon the description of the diamond in these proceedings115 and the valuations of A.J. Walsh dated 6 August 1999 and 7 April 2021, without knowing the full extent of oral and documentary evidence adduced before the Tribunal. I do not accept Mr Cohen’s opinion that a valuation, as an estimate of a diamond’s 4C characteristics, cannot be accurate without a diamond grading report, because it is the Tribunal’s function to consider all relevant evidence, even if imperfect or incomplete, doing the best that it can in making findings of fact, determining liability, and assessing compensable loss (if any) of an Applicant in any given circumstances. Nor do I accept Mr Cohen’s statement that it is impossible, without a valuation specifying measurements, clarity, colour, and grade, to assess the retail value of a diamond, again because it is the Tribunal’s function and role to resolve disputes on the evidence overall, in a way that it considers fair and equitable,116 even where evidence, including in documentary form where unsworn, may be imperfect or incomplete. Ms Amor [87] Ms Amor was one of two witnesses called by Mrs Bromley to give evidence. Senior Constable Amanda Booker, whose evidence really did not advance Mrs Bromley’s case or assist the defence of Mr Ward and CTJ, was the other. [88] Ms Amor gave her evidence confidently. What distinguishes much of her evidence from that of Mr Ward and the other CTJ witnesses is that Ms Amor had most of the dealings with Mrs Bromley direct. She, together with Mr Ward, took Mrs Bromley’s jewellery in and assured Mrs Bromley that her jewellery was safe (could be “trusted”) with CTJ, and she was the person who interacted with Mr McMahon, the jeweller who unset Mrs Bromley’s diamonds, and assisted by Mr Ward who checked sizing of the diamonds. Ms Amor described the characteristics of the solitaire diamond to Mrs Bromley. [89] I accept Ms Amor’s evidence as it related to what jewellery and diamonds CTJ received from Mrs Bromley, the characteristics of the diamonds examined by her and unset by Mr McMahon including the quality and description of the solitaire engagement diamond, measurement of the diamonds for the CAD, the photocopy she made of Mrs Bromley’s jewellery, the cataloguing and packaging of the jewellery and diamonds, the “cadding” process and documentation for Mrs Bromley’s proposed elaborate new diamond ring, how the plastic packets containing the diamonds were marked by her, where those packets of jewellery and diamonds were stored whilst the job was on hold, and what they contained when last she saw them on 30 March 2020 when put on COVID-19 leave. I accept Ms Amor’s evidence that Mrs Bromley’s jewellery and diamonds were kept in an on-hold box in one of the drawers near the front door of the store where she placed the packet at Mr Ward’s request, that this 115 My italicisation for emphasis. 116 See section 13(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 33 of 49 -- 34 only changed to keeping customers jewellery in the safe after the situation with Mr and Mrs Bromley and Mr Ward occurred, and that Mr Ward said in his email to her dated 13 May 2020 that in situations (like these and others) he would enforce stricter guidelines in all areas of the business and would be formulating new guidelines for staff moving forward. [90] I accept that Ms Amor reported to, and took instructions from, Mr Ward in the course of her employment, and that, as a longstanding employee, she held a key position with CTJ, that she worked with minimal supervision, that she was permitted by CTJ and Mr Ward to trade jewellery for profit in her own right, as a business within CTJ’s business apparently, that Mr Ward suspended Ms Amor’s employment in March 2020 due to the COVID-19 pandemic, and that she was not present at the CTJ shop on 12 May 2020 and had no access to Mrs Bromley’s rings and diamonds in the packets between 30 March 2020 and that date. However I approach Ms Amor’s evidence regarding the disappearance of Mrs Bromley’s twelve smaller diamonds with caution and find that she was an unreliable witness in the following respects. (a) As I earlier noted, Ms Amor told Detective Senior Constable McAuliffe that neither she nor Mr Ward had changed their versions of what had occurred and Mr Ward agreed, at least tacitly. However, as both well knew, Ms Amor’s earlier version contained in her email to Mr Ward dated 12 May 2020 was that some of Mrs Bromley’s diamonds were used in another customer’s bangle on Mr Ward’s instruction, on which she further elaborated in her email to Mr Ward dated 14 May 2020 in reply to his dated 13 May 2020 and later in evidence. (b) I infer that the likely reason for Ms Amor and Mr Ward withholding the information contained in those emails from the police arose out of mutual self- interest, in case they might themselves later be prosecuted as accessories in the theft of Mrs Bromley’s small diamonds. In that regard, I am mindful of the evidence that Mr Ward had asked Mr Giltrap of Diamond Vault to put something in writing to him because “us jewellers need to stick together”117 even though he attempted later to downplay the significance of that. Mr Ward and Ms Amor withholding critical information from the police regarding Ms Amor’s explanation for the disappearance of Mrs Bromley’s smaller diamonds was tantamount to “sticking together” and collusive. (c) Under cross examination by Counsel, Ms Amor seemed not to appreciate the conflict between her saying on the one hand that swapping one customer’s jewellery with that of another would be dishonest and disreputable and that she would not do it if asked, whilst on the other hand saying that she didn’t object to following Mr Ward’s instructions when told “by the boss” to do so in urgent circumstances. Implicitly, Ms Amor was willing to act disreputably and dishonestly, provided that she did so under instruction of Mr Ward, having nevertheless told Mrs Bromley they would not do a thing like that. The contradictions seem to me to have been lost on Amor, particularly since she acknowledged the importance of Mrs Bromley’s trust that CTJ was a reputable business. (d) Ms Amor falsely told the police in the recorded interview that what Mrs Bromley picked up what she had brought in, but she backtracked under cross- 117 See exhibit A5 tendered on 30 April 2021 referred to earlier. -- 34 of 49 -- 35 examination at the hearing when saying one would assume that to have occurred, but she wasn’t there and assumed that Mr Ward “would have” replaced the missing diamonds. [91] Those inconsistencies and contradictions undermined Ms Amor’s credibility in explaining the disappearance of Mrs Bromley’s 12 smaller diamonds whilst in the custody of CTJ. Mrs Bromley did not cross examine jeweller McMahon. Therefore, as against Ms Amor’s tested but unsatisfactory evidence of alleged diamond swapping involving another customer’s bangle, Mr McMahon’s evidence to the contrary stood uncontradicted. On the other hand, Counsel for CTJ and Mr Ward did not put to Ms Amor that she had stolen Mrs Bromley’s twelve smaller diamonds and the large solitaire engagement diamond. Ultimately, there was no evidence that Ms Amor took those diamonds for herself as Mr Ward implied. Mrs Bromley [92] Mrs Bromley was a credible, honest, reliable witness, in my observation. She gave her evidence clearly and methodically, mostly supporting it with corroborative documentary evidence where available although sometimes incomplete. She was neither shaken nor discredited under cross examination by Counsel and generally impressed me as a witness of truth. [93] Some discrepancies in Mrs Bromley’s evidence related to the precise measurement of her solitaire engagement diamond and date on which Mrs Bromley said that she handed over her jewellery to Ms Amor. The computer-generated CTJ take-in tax invoice/receipt118 established that Mrs Bromley handed over her jewellery to Ms Amor of CTJ on 13 February 2020, not 17 February 2020 as she stated, and I accept that the listed measurement of Mrs Bromley’s solitaire diamond at 5.96 mm on the CAD design, rather than the actual 5.9 mm measured by Ms Amor at take-in, was probably a typographical error made by the designer employed by CTJ. Nothing turns on those discrepancies. In my opinion, they are immaterial and inconsequential for the outcome in this case. [94] Documentary evidence from CTJ and Ms Amor, particularly CTJ’s documents to which Mrs Bromley referred in evidence, corroborated Mrs Bromley regarding the number and the size of her diamonds delivered to CTJ on 13 February 2021, including the CTJ photocopy depicted the rings that Mrs Bromley handed over to Ms Amor and CTJ, the plastic packets on which Ms Amor wrote and whose handwriting confirmed the quantity and size of the various diamonds after Mr McMahon unset them from the rings, the diamond sizes written by Ms Amor on the picture of the CAD design of the new composite ring, and the quantity and size of Mrs Bromley’s diamonds intended for setting in the new composite ring listed in the table to the Indian designer’s document. Except in the instances to which I refer in these reasons, I prefer Mrs Bromley’s evidence where it conflicted with the evidence of Mr Ward and other CTJ witnesses and I find as follows. (a) Before handing her jewellery over on 13 February 2020, Mrs Bromley relied on Ms Amor’s statement in Mr Ward’s presence that they, and therefore CTJ, could be trusted with her diamonds. She was not privy to CTJ’s internal security arrangements in place on 13 February 2020 to safeguard customers’ goods 118 See exhibit BX referred to in the attachment to Mrs Bromley’s application. -- 35 of 49 -- 36 whilst in its custody and was not informed of what those arrangements were at that time. (b) The CTJ Protocol that Mrs Bromley first saw on the CTJ website in June 2020 most likely came into existence after Mr Ward’s email to Ms Amor dated 13 May 2020 in which he said they would formulate and enforce stricter guidelines moving forward because of “situations like these and others” and is consistent with the fact that Mr Ward did not perform the CTJ protocol hand-back procedure with Mrs Bromley on 12 May 2020. (c) Mr Ward did not count out Mrs Bromley’s diamonds before handing the packets with contents back to her on 12 May 2020 and she did not sign an acknowledgment of receipt of her diamonds. Except when being examined by Mr Giltrap the same afternoon, the rings and diamonds which Mrs Bromley received from Mr Ward and CTJ on 12 May 2020 remained in her custody between then and her return to CTJ’s shop the same afternoon. (d) The diamonds delivered to CTJ on 13 February 2020, which Mr Ward and CTJ failed to return to Mrs Bromley on 12 May 2020, were: 4 x 4.1mm diamonds of H colour and SI clarity unset from her Family Ring valued on 31 March 2005 at $5,125.00 including ring,119 6 x 3.1 mm diamonds of G colour and VS clarity unset from her Eternity Ring and Queens Ring, 5 of the 6 of which valued on 6 August 1999 at $2,570.00 including ring,120 2 x 2.9 mm diamonds of undetermined colour and clarity reportedly valued on 25 September 2020 at $505.00 though the valuation itself was not exhibited, and the 5.9 mm solitaire diamond unset from her Engagement Ring. (e) The plastic bag that Mr Ward handed to Mrs Bromley on 12 May 2020, that should have contained Mrs Bromley’s solitaire diamond, in fact contained a substituted, lesser quality, smaller sized, 0.79 carat brown diamond, owned by somebody else, measuring 5.7 mm, of SI2 clarity and K/L colour (brown tint), exhibiting strong blue fluorescence, and is worth (only) $4,400.00.121 (f) Mrs Bromley’s unreturned solitaire diamond was probably a round brilliant cut 5.9 mm diameter white diamond weighing 0.80 carats, of G colour - near colourless and VS Clarity - denoting slightly included, because it is reasonable to infer, as I do, that if it was of lesser or better colour and clarity than G and VS then the original valuer A.J. Walsh would have said so in his valuation dated 6 August 1999 when he referred to G and VS as the colour and clarity of the diamonds in the associated Eternity Ring. [I reject Mr Ward’s unsubstantiated statement in his email to Mrs Bromley dated 14 May 2020122 that, whether A.J. Walsh of Robt. H. Parker & Sons Pty Ltd or someone else, the person who sold her the solitaire diamond engagement ring “may be what you call dishonest”.] (g) The designation G and VS for Mrs Bromley’s solitaire diamond is consistent with Ms Amor saying to Mrs Bromley at take-in that it was brilliant white with a little “wisp” or inclusion from the centre to the edge, not visible to the naked 119 Attachment to the Application, exhibit SX. 120 Ibid, exhibit RX. 121 Ibid, exhibit VX. 122 Ibid, exhibit LX. -- 36 of 49 -- 37 eye, when examined under the 10 x magnification loupe and is not materially inconsistent with Mr Giltrap saying that the diamond was a “minimum” H colour with a wisp running through the table of the diamond. (h) Ms Amor’s reference to “white’ as the diamond colour is consistent with it being near colourless, affected only by a faint wisp not visible to the naked eye, within the range G to J according to the Tiffany and Co. Guide. In terms of ordinary meaning, a synonym for the adjective “white” is “colourless”. 123 (i) The value of Mrs Bromley’s solitaire engagement diamond at the time of it going missing was somewhere in the range $12,800.00124 certified by A.J. Walsh on 7 April 2021and $15,000.00 being the top of the valuation range referred to in the estimation of value for retail replacement purposes by Kym Hughes dated 14 September 2020.125 (j) Though Mr Hughes’ estimation does refer to a diameter of 5.96mm, whereas the actual diameter of Mrs Bromley’s solitaire engagement diamond was 5.90mm, the difference of .06mm is immaterial, as I said earlier. [95] I prefer Mr Hughes’ opinion that the estimated retail replacement cost of a diamond with those specifications was (then) in the range between $13,000.00 and $15,000.00 depending on variables of how well the diamond was cut, if it was fluorescent, if it had an internationally recognised laboratory certification, and if the clarity was VS 1 or 2. Mrs Bromley’s solitaire engagement diamond was well cut, it did not exhibit any fluorescence under loupe magnification or to the naked eye, and it was probably a VS1 in clarity. The only thing it lacked was internationally recognised laboratory certification. I will make further findings of fact on the probable value of Mrs Bromley’s missing diamonds in the assessment which follows. Assessment of loss [96] Retail replacement cost of Mrs Bromley’s missing diamonds, not the wholesale cost to Mr Ward of buying them, is the appropriate measure of compensation to Mrs Bromley if I find the Respondents liable in this case. I must decide what it will probably cost Mrs Bromley to purchase the equivalent of her missing diamonds from a reputable retail Jeweller to restore her to the position before the loss, as far as money can do that. Mrs Bromley has received her rings back, therefore, where possible, the likely worth of each relevant ring should be assessed and brought to account in reduction of the claim for the unset diamond so as not to over-compensate her. It is convenient to undertake the assessment at this point. Missing single solitaire diamond unset from the Engagement ring [97] There is no difficulty in assessing compensation for the missing solitaire engagement diamond. In preferring Mr Hughes estimation126 over the opinion of Mr A. J. Walsh as I have, I assess the replacement cost of that diamond at $14,500.00. I arrive at this figure by deducting a notional $500.00 for lack of an internationally recognised laboratory certification from the range limit of $15,000.00. 123 Oxford Languages, Google’s English dictionary; search languages.oup.com. 124 A.J. Walsh certificate dated 7 April 2021, exhibit A1 filed 8 April 2021. 125 Attachment to the Application, exhibit VX. 126 Exhibit VX and see paragraph 127((j) to (l) supra. -- 37 of 49 -- 38 Missing six diamonds, five of which unset from the Eternity ring and one from the Queens Ring [98] There is equally no difficulty in assessing compensation for the five diamonds unset from the eternity ring. In Mr A. J. Walsh’s opinion, the total replacement value of equivalent pieces was $1,590.00 on 7 April 2021,127 not the sum of $2,570.00 including ring claimed by Mrs Bromley in her Application. I see no reason to depart from Mr Walsh’s figure which, divided by 5, means that the retail replacement value of each of the five diamonds was $318.00. The difficulty, however, is that there is no valuation or estimate amongst Mrs Bromley’s documents for the single missing diamond unset from the Queens ring which, according to her inexpert evidence, was a G VS gem just like the five eternity ring diamonds. On the other hand, Mr Ward and CTJ could have provided evidence that this diamond was not of G colour and VS clarity and that it was not worth $318.00 but apparently could not do so because Mr Ward failed to implement the CTJ protocol procedure when taking in Mrs Bromley’s diamonds. [99] I therefore assess the retail replacement cost of the Queens ring diamond, one of eight in that ring, at $318.00, which together with the five Eternity ring diamonds at $1,590.00, produces a total of $1,908.00 for the six diamonds overall. The missing four diamonds unset from the Family ring [100] The difficulty in assessing the retail replacement cost of these four diamonds lies in the fact that the valuation of Accord Valuation Services dated 31 March 2005128 relied on by Mrs Bromley did not distinguish the retail replacement cost of the ring from that of the diamonds. It established that each was a 0.25ct brilliant cut diamond of H colour and SI clarity but ascribed no figure to them, only stating a combined value of $5,125.00 for ring and diamonds together. The retail replacement cost of the 4.9 gram 18ct yellow and white gold ring must be deducted from the diamond component. The question is, how do I assess that cost in the circumstances? An indirect comparator is the 18ct yellow gold ring, the equivalent of Mrs Bromley’s Eternity ring, referred to in Mr A. J. Walsh’s opinion (supra) on 7 April 2021. It had a retail replacement value of $1,550.00. Swelling aside, Mrs Bromley’s ring finger size will not have changed for the various rings. In other words, ring sizes were in that sense the same, though their configurations differed. Nevertheless, one does not know the weight in grams of the Eternity ring equivalent and whether extra or less value ought to be attributed to the Family ring for its mix of yellow and white gold. [101] A comparison of the figures in exhibits RX and A1 for the Eternity ring with diamonds proves a total retail price appreciation of 122%129 for that combination. The price appreciation of Mrs Bromley’s solitaire engagement diamond provides another example of appreciation. If one deducts $1,400.00 for the engagement ring itself130 from the ring and diamond combination valued at $8,975.00 by Mr Walsh on 6 August 1999, the solitaire diamond retail price difference of $7,575.00 over just less than 21 years was approximately 191% of its original retail value. I calculate this as $14,500.00, assessed by me based on Mr Hughes’ estimation of the range $13,000.00 127 Exhibit A1 filed on 8 April 2021. 128 Exhibit SX. 129 Calculated as $3,140.00 divided by $2,570.00 multiplied by 100. 130 See exhibit A1, the A.J. Walsh valuation of equivalent dated 7 April 2021. -- 38 of 49 -- 39 to $15,000.00,131 divided by $7,575.00 and multiplied by 100 to arrive at the percentage. The point of this is that Mrs Bromley is entitled to the benefit of retail price appreciation following the old valuation of the Family ring and diamonds. [102] Doing the best that I can on the available evidence, I estimate the retail replacement cost of the Family ring at $1,550.00, noting that the Accord valuation was done on 31 March 2005, sixteen years and one month before Mr A. J. Walsh’s Eternity ring valuation on 7 April 2021, having regard to more than 100% in probable retail price appreciation of the Family ring diamonds in that period. I think it would be unfair and inequitable to assess the value of the Family ring diamonds at nil for lack of direct valuation evidence or a direct comparator. If CTJ and Mr Ward are liable, a nil assessment for the four Family ring diamonds would visit a completely uncompensated loss on Mrs Bromley through no fault of her own in the causal sense. [103] I therefore assess the retail replacement cost of Mrs Bromley’s four 0.25ct brilliant cut H SI diamonds on 7 April 2021 as $5,125.00 minus $1,550.00 = $3,575.00 plus $1,787.50 for half (50% at least) of the appreciation of the diamonds over 16 years and one month = $5,362.50, reduced to $5,125.00 claimed by Mrs Bromley. The two missing 2.9 mm diamonds of undetermined colour and clarity unset from the Comfort ring [104] The claim for $505.00 for the two 2.9mm diamonds of undetermined colour and clarity, at which they were reportedly valued, was unsupported by a valuation document, though Mrs Bromley referred to the existence of one in the attachment to her Application. I have rounded the figure down to $500.00 as not unreasonable on the contextual evidence to which I have referred above. Mr Ward and CTJ did not produce or rely on a retail replacement cost valuation or estimate to contradict the amount claimed for these missing diamonds. I think that it would be unfair and inequitable to assess the loss at nil, for the same reasons to which I referred earlier. Summary [105] The total retail replacement cost of Mrs Bromley’s missing diamonds is therefore $22,033.00 for the sum of $14,500.00 plus $1,908.00 plus $5,125.00 plus $500.00 as assessed above. Other findings [106] Assessment of compensable loss aside, I find that there is no evidence whatsoever to support Mr Ward’s innuendo that Mrs Bromley was in conspiracy with her husband Mark Bromley to falsely make a claim for missing diamonds that he had in fact returned to her. Mr Ward and CTJ have not made out their defence that there is no132 reliable evidence of the exact, quantity, type or quality of diamonds taken in and not returned and that Mr and Mrs Bromley signed a receipt for the return of all the diamonds. They have not established that Mr Ward was not a “correct” Respondent either. [107] On the other hand, I am not reasonably satisfied to the Briginshaw standard of proof that Mr Ward substituted the brown diamond for Mrs Bromley’s solitaire engagement diamond, as alleged by Mrs Bromley. Although Mr Ward had opportunity, so too did 131 Exhibit VX. 132 My emphasis. -- 39 of 49 -- 40 others with access to the drawer on the CTJ shop floor in which Mrs Bromley’s diamonds and jewellery were kept on hold for two months or more. Mrs Bromley has not proved that Mr Ward had motive for the “one off” substitution. There is no evidence that he or CTJ was (then) in financial difficulty, and though the loss occurred in the early stages of the Covid-19 pandemic, I accept Mr Ward’s statement that he had no reason to risk his reputation of many years by substituting diamonds. However, it does not necessarily follow that he has no liability for Mrs Bromley’s loss. [108] Because of the shortcomings in Ms Amor’s evidence, I am also not reasonably satisfied that Mrs Bromley’s 12 missing smaller diamonds were set in another customer’s bangle on Mr Ward’s instruction, as she said occurred, which Mr McMahon denied. Equally, for the reasons already expressed, I am not reasonably satisfied that Ms Amor was involved in the theft of Mrs Bromley’s diamonds, as implied by Mr Ward. The Jones v Dunkel inferences adverse to Mr Ward and CTJ do no more than prove a negative. They do not fill the gaps in Mrs Bromley’s evidence and that of CTJ and Mr Ward. [109] I am reasonably satisfied that an unidentified person did substitute the brown diamond for Mrs Bromley’s solitaire engagement diamond because that is very unlikely to have happened by accident. The person probably had a forensic understanding of diamonds and knew the relatively high quality of Mrs Bromley’s solitaire engagement diamond compared to the much lesser quality brown diamond substituted for it. The person probably made the substitution in the belief it would go unnoticed by Mrs Bromley. An opportunistic member of the public rifling through unlocked drawers of on hold jewellery would have no reason to make the substitution to disguise a theft, they would more likely just have stolen the lot. Speculation on who within a range of people might have been the perpetrator of the substitution and theft is pointless and I make no finding on whether the person was a member of CTJ staff or CTJ’s director or someone else within or outside of the CTJ business. It is also impossible to ascertain the likely date on which Mrs Bromley’s diamonds went missing whilst in the custody of CTJ and whether that occurred before or after 30 March 2020 when Ms Amor was stood down on pandemic leave and left the Gold Coast for New South Wales. Law Fair Trading Act 1954 (Qld) / Australian Consumer Law (Qld)/ QCAT Act 2009 (Qld) interface [110] The Australian Consumer Law (ACL) was adopted as a law of Queensland by the Fair Trading Act 1989 (Qld) (the FTA)133 and is referred to as the ACL (Qld) and the ACL text, so defined in the FTA, consists of schedule 2 to the Competition and Consumer Act 2010 (Cth) and the regulations under section 139G of that Act. Section 19 of the FTA provides for the interpretation of the ACL and section 20 provides for the application of the ACL in Queensland. Section 50(1) of the FTA provides that a proceeding for the purposes of a provision of the Australian Consumer Law (Queensland) listed in the table to the section must (my emphasis) be heard in the Tribunal or in a court having jurisdiction for the proceeding having regard to – (1) for the Tribunal, whether the subject of the proceeding – 133 Ibid, s 16(1) and (2). -- 40 of 49 -- 41 (1) would be a minor civil dispute (sic) within the meaning of the QCAT Act; or (2) would be a matter to which section 50A applies; or (2) for a court – any civil jurisdictional limit, including any monetary limit, applying to the court. [111] A claim between consumer and trader, subject to QCAT’s monetary limit of $25,000.00, is, by statutory definition a minor civil dispute.134 The FTA and the ACL are enabling Acts as defined, to be read in conjunction with the QCAT Act. A trader is, relevantly for the present case, defined in Schedule 3 of the QCAT Act as excluding a person acting in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce. That exclusion135 does not apply on the facts in this case.136 [112] Section 50(1)(a)(i) of the FTA is important. The table incorporated in section 50(1) of the FTA includes reference to ACL section 236(1) for an action to recover an amount of loss and damage and section 267(2), (3) and (4) of the ACL with respect to action that may be taken by a consumer against a supplier of services for breach of statutory guarantees, in the minor civil dispute jurisdiction of this Tribunal. The Tribunal therefore has jurisdiction to adjudicate Mrs Bromley’s claim for loss or damage suffered because of the conduct of a trader, in this case CTJ, and another person, in this case Mr Ward, if involved in contravention of sections 18, 29 and 60 of the ACL, being provisions in Chapters 2137 and 3138 for the protection of consumers. [113] Section 236 of the ACL provides that if a person (claimant) suffers loss or damage because of the conduct of another person139 and, if the conduct contravened a provision of Chapter 2 or 3,140 then the claimant may recover the amount of the loss or damage by action against that other person or any person involved in the contravention. Section 2 of the ACL defines the meaning of “involved” and provides that someone is involved in a contravention if that person has: (a) aided, abetted, counselled of procured, the contravention; 134 For an analysis of the relevant provisions of the QCAT Act, see Helyar v Civil and Development Consulting Pty Ltd (in liquidation) & Ors [2020] QCAT 465 at paragraphs [124] to [140]. Also, see ss. 6, 9, 11, 12 and 13, and the relevant definitions in Schedule 3. 135 Dr J R Forbes in the recent decision of Peng v Darley Properties Pty Ltd (t/a L J Hooker Caboolture- Morayfield [2022] QCATA 45 provides a convenient summary of relevant case law on the exception. 136 For example, there is no evidence that either of the Respondents or any of their staff were members of the Jewellers Association of Australia and bound as such by a Voluntary Code of Conduct administered for the benefit of consumers, or that any of the indicia considered in Presnia v Aknar (1996) 40 NSWLR 165 at 186 apply to them. 137 Chapter 2 - General protections, Part 2-1-Misleading or deceptive conduct and the prohibition in section 18(1) against a person in trade or commerce engaging in conduct that is misleading and deceptive or likely to mislead or deceive. 138 Chapter 3 - Specific protections, Part 3-2 Consumer transactions, Division 1 - Consumer guarantees, Subdivision B - Guarantees relating to the supply of services, including in trade and commerce in connection with the supply or possible supply of services the prohibition under section 29(1)(b) against making a false or misleading representation that services are or a particular standard, quality, value or grade, and the guarantee in section 60 that the services supplied by a person in trade and commerce to a consumer will be rendered with due care and skill. 139 See the ACL (Qld), s. 236(1)(a). 140 Ibid, s. 236(1)(b). -- 41 of 49 -- 42 (b) induced, whether by threats or promises or otherwise, the contravention; or (c) been in any way, directly or indirectly, knowingly concerned in, or a party to, the contravention; or (d) has conspired with others to effect the contravention. [114] A consumer may “take action” under section 267 of the ACL if a person (the supplier) supplies services in trade and commerce to the consumer141 and a guarantee that applies to the supply under Subdivision B of Division 1 of Part 3-2 is not complied with.142 In the case of a guarantee under section 60 of the ACL that services will be rendered with due care and skill, none of the following exclusions143 apply on the facts of the present case: (a) where the failure to comply occurred only (sic) because of an act, default, or omission of, or a representation made by, any person other than the supplier, or an agent or employee of the supplier;144 or (b) where the failure to comply occurred only because of a cause independent of human control that occurred after the services were supplied.145 [115] By section 267(4) of the ACL, a consumer may, by action against the supplier of services, recover 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 because of the failure. Consistently with the absolute terms of the guarantee that services will be rendered with due care and skill, the remedy under section 267(4) of the ACL is, by operation of section 267(5), a stand-alone remedy, additional (my emphasis) to the following which do not apply on the facts of the present case: (a) the remedy under section 267(2) for a remediable failure to comply with a guarantee which is not a major failure; and (b) the remedy under section 267(3) where the failure cannot be remedied or is a major failure. [116] For completeness, I note that the remedies afforded under section 267(2) and section 267(3) of the ACL do not apply in the present case because Mrs Bromley terminated the contract with CTJ for reason other than a breach of the prohibitions in sections 18 and 29 of the ACL and breach of the guarantee in section 60. Case law – Accessorial liability [117] The High Court of Australia in Yorke v Lucas (1985) 61 ALR 307; [1985] HCA 65 (Yorke) held the following to be prerequisites for accessorial liability of a person in terms of section 75B for contravention of section 52 of the (former) Trade Practices Act 1974 (Cth) (the TPA) for the wrongdoing of a company: (a) knowledge of the essential facts constituting the contravention. 141 Ibid, s. 267(1)(a). 142 Ibid, s. 267(1)(b). 143 Ibid, s. 267(1)(c). 144 Ibid, s. 267(1)(c)(i). 145 Ibid, s. 267(1)(c)(ii). -- 42 of 49 -- 43 (b) being knowingly concerned in the contravention. (c) intentionally participating in the contravention based either on actual knowledge or wilful blindness, in which event constructive knowledge might suffice. [118] Those criteria are substantially replicated in the definition of “involved” in section 2 of the ACL, though the latter is broader in effect. Section 18 of the ACL is the equivalent of former section 52 of the TPA and section 236 of the ACL. The decision in Yorke therefore continues to provide some guidance on prerequisites for involvement of “another person” and in particular that mere involvement of another person in contravention of sections 18 of the ACL, without substantially more, is insufficient to establish personal liability of a non-contracting party for involvement in the contravention of a company. Case law -Misleading and deceptive conduct by representation or silence [119] In Kenxue Pty Ltd ATF The Susan Investment Trust v Westpro Finance Pty Ltd [2020] NSWSC 1146 (Kenxue) Rein J summarised, amongst others, the following principles concerning misleading and deceptive conduct: According to Russell V Miller, Miller’s Australian Competition & Consumer Law Annotated (Thompson Reuters, 42 nd ed, 2020) at [ACL 18.380] (Miller): The essential question is whether in all the circumstances constituted by acts, omissions, statements or silence, there has been conduct likely to mislead or deceive…146 In Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31; (1992) 110 ALR 608 at 609-610 (Demagogue) on the issue of silence, Black CJ said: Silence is to be assessed as a circumstance like any other. To say this is certainly not to impose any general duty of disclosure; the question is simply whether, having regard to all the relevant circumstances, there has been conduct that is misleading and deceptive or that is likely to mislead and deceive. To speak of “mere silence” or of a duty of disclosure can divert attention from that primary question. Although “mere silence” is a convenient way of describing some fact situations, there is in truth no such thing as “mere silence” because the significance of silence always falls to be considered in the context in which it occurs. That context may or may not include facts giving rise to a reasonable expectation, in the circumstances of the case, that if particular matters exist they will be disclosed.147 See also Gummow J at 618 in Demagogue who adopted the remarks of French J (as he then was) in Kimberly NZI Finance Ltd v Torero Pty Ltd (1989) ATPR (Digest) 46-054 at 53, 195 (Kimberly NZI): If in a particular case silence would, as a matter of fact, constitute misleading and deceptive conduct, s 52 by virtue of its prohibition of such conduct imposes its own statutory duty to make disclosure. The cases in which silence may be so characterised are no doubt many and various and it would be dangerous to essay any principle by which they might be exhaustively defined. However, unless the circumstances are such as to 146 Kenxue Pty Ltd ATF The Susan Investment Trust v Westpro Finance Pty Ltd [2020] NSWSC 1146, at [107] and see the cases there referred to. 147 Ibid, at [108]. -- 43 of 49 -- 44 give rise to the reasonable expectation that if some relevant fact exists it would be disclosed, it is difficult to see how mere silence could support the inference that the fact does not exist.148 It should be noted that if there has been silence on a topic of significance in a context where the expectation is established it need not be demonstrated that the silence was intentional: see CCP Australian Airships Ltd v Primus Telecommunications Pty Ltd [2004] VSCA 232 (CCP Australian Airships) and Liao v LNG Properties Pty Ltd [2019] NSWSC 1846 at [57].149 Contract law – Damages for breach of contract [120] Damages assessed as compensation for reasonably foreseeable loss causally related to material breach of a contract that were reasonably within the contemplation of the parties at the time of formation are recoverable, in accordance with the principle in Hadley v Baxendale.150 The Civil Liability Act (Qld) – Tort [121] The Civil Liability Act 2003 (Qld) (the CLA) by section 4(1) applies in Queensland to any civil claim for damages for “harm” as defined. The Queensland Court of Appeal in Meandarra Aerial Spraying Pty Ltd & Anor v GEJ Geldard Pty Ltd 151(Fraser and White JJA and Mullins J) has held that the CLA must be applied in all cases where its provisions are applicable.152 Though not codifying the common law,153 the Act modifies the general law regarding breach of the duty of care owed by one person to another, but the test is a restatement of common law principles.154 One such modification dispenses with the formula in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 that foreseeable risk must not be “far-fetched or fanciful” and replaces it with the requirement that the risk must be “not insignificant” that is “designed to increase the degree of probability of harm which is required for a finding that a risk was foreseeable.”155 [122] In Schedule 2 of the CLA, “damages” is defined as including any form of monetary compensation; “harm” is defined as including personal injury, damage to property, and (relevantly in the present case) economic loss; “duty of care” means a duty to take reasonable care or to exercise reasonable skill, or both duties; and “duty” is defined as: (a) a duty of care in tort; or (b) a duty of care under contract that is concurrent and coextensive with a duty of care in tort; or (c) another duty under statute (or otherwise) that is concurrent with a duty of care in (a) or (b). 148 Ibid, at [109]. 149 Ibid, at [110]. 150 Hadley v Baxendale & Ors [1854] EWHC J70. 151 [2012] QCA 315. 152 Ibid, at [23] per Fraser JA. 153 Ibid. Also see s. 7(5) of the Civil Liability Act (2003) which provides that it is not a codification of the law relating to civil claims for damages for harm. 154 Ibid, at [25] per Fraser JA referring to the second reading speech for the (then) Bill. 155 Ibid and at [26]. -- 44 of 49 -- 45 [123] By section 9(1), a person does not breach a duty to take precautions against a risk of harm unless – (a) the risk was foreseeable (as one which the person knew or ought reasonably to have known); and (b) was not insignificant; and (c) in the circumstances, a reasonable person in the position of the person would have taken precautions. By section 9(2), in deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other things) – (a) the probability that the harm would occur if care were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; and (d) the social utility of the activity that creates the risk of harm. By section 10, in a proceeding relating to liability for breach of duty happening on or after 2 December 2002 – (a) The burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and (b) The fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and (c) The subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk. [124] Section 11 provides as follows. (1) A decision that a breach of duty caused particular harm comprises the following elements – (a) the breach of duty was a necessary condition of the occurrence of the harm (“factual causation”); (b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (“scope of liability”). (2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty – being a breach of duty that is established but cannot be established as satisfying subsection (1)(a) – should be accepted as satisfying subsection 1(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach. (3) If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach – (a) the matter is to be decided subjectively in light of all relevant circumstances, subject to paragraph (b); and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For purpose of deciding the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty. [125] The statutory principles apply in all cases to which the Act applies, having regard to sections 4, 9, 10, 11, and the definitions in Schedule 2. For completeness, I note that sections 23 and 28 of the CLA, concerning contributory negligence and apportionment of liability (or proportionate liability) have no application in the -- 45 of 49 -- 46 present case. It has not been suggested that Mrs Bromley was contributorily negligent in any way. Case Law – Duty of care [126] A director of a company that is a party to a contract who contravenes the ACL may owe a duty of care in negligence to the other contracting party, the breach of which may give rise to personal liability of the director to compensate the client of the contracting company for pure economic loss, concurrently with accessorial liability provided for in section 236 of the ACL. [127] The High Court, in Perry v Apand Pty Ltd 156 and Woolcock Street Investments v CDG Pty Ltd,157 held that vulnerability rather than proximity of relationship is the prerequisite for a duty of care to avoid economic loss and, in Brookfield Multiplex v Owners Corporation Strata Plan 61288, distinguishing Bryan v Maloney,158 recognised, in the case of a claimant’s known reliance or dependence or the assumption of responsibility by a defendant or a combination of the two, an exception to the rule that damages not consequential on personal injury or property damage, even if foreseeable, are not recoverable. Case law – Directors’ liability in tort [128] The Supreme Court of Queensland revisited High Court authority on personal liability of company directors for negligence in Mousa & Anor v Vukobratich Enterprises Pty Ltd & Anor159 (Mousa) at [338] to [340]. This case concerned breach of a building construction contract. Justice Henry referred to the line of High Court authority culminating in Brookfield Multiplex Ltd v Owners160 (Brookfield) and said the following at [340]. In Brookfield Multiplex, French CJ explained there has been a shift of emphasis from proximity to vulnerability as the most material determinant of the existence of a duty of care for pure economic loss. His Honour explained the relevant vulnerability was “the plaintiff’s incapacity or limited capacity to take steps to protect itself from economic loss arising out of the defendant’s conduct.”161 He reiterated the authorities’ emphasis on considering the salient features in the individual case under consideration: Consistently with the approach taken in Woolcock and, before that, in Bryan v Maloney, the determination of this appeal requires consideration of the salient features of the relationship between the Corporation and Brookfield, including whether Brookfield owed Chelsea a relevant duty of care and whether the Corporation was vulnerable in the sense discussed above.162 [129] The decision in Mousa at [341] is authority for the proposition that the fact a company director is not a party to a building contract does not of itself preclude the existence of a duty of care owed to the owners Mr and Mrs Mousa under the law of tort.163 Though the Court ultimately dismissed the claim because Mr and Mrs Mousa were 156 (1999) 198 CLR 180. 157 (2004) 216 CLR 515. 158 (1995) 182 CLR 609. 159 [2019] QSC 49. 160 (2014) 254 CLR 185. 161 Ibid, 201. 162 Ibid, 203-204. 163 See Bryan v Maloney (1985) 182 CLR 609, 619-620. -- 46 of 49 -- 47 not vulnerable and therefore not owed a duty of care by the builder, the principle stands to be applied appropriately in cases other than building contract disputes. This is an appropriate case, in my opinion. Liability [130] Applying the law to the facts, I find CTJ liable to pay Mrs Bromley the following amounts. (a) Compensation in the amount of $22,033.00 for the loss of her 12 smaller diamonds and her large solitaire engagement diamond which CTJ failed to keep safe and secure and failed to return to her on 12 May 2020 in breach of the contract. (b) Interest on the amount of $22,033.00 calculated as $1,481.30 for the period 12 May 2020 to 11 May 2022 for a total of 730 days. (c) The filing fee of $352.00 as the only recoverable cost in this minor civil dispute. [131] CTJ did not discharge the reverse onus164 on it to prove that appropriate steps were taken to protect Mrs Bromley’s property. On the contrary, Mr Ward’s own evidence proved that he and CTJ failed to keep Mrs Bromley’s on hold diamonds safely and securely, leaving them in an unlocked drawer for on hold jewellery beneath the counter on the floor of CTJ’s shop for more than two months, rather than in the fireproof combination safe available for the purpose. [132] I find Mr Ward and CTJ jointly and severally liable to pay Mrs Bromley $22,033.00 for the loss of her 12 smaller diamonds and her large solitaire engagement diamond, plus interest in the amount of $1,841.30, plus $352.00 for filing fee, because CTJ, with the knowledge and involvement of its then sole director, Mr Ward, breached the ACL prohibitions of misleading and deceptive conduct and false and misleading representations about services by inducing Mrs Bromley to enter into the contract upon the representation by Ms Amor in the presence of Mr Ward that it could be trusted with her jewellery and diamonds, he all the while knowing that was not so because CTJ’s internal procedures permitted customers’ jewellery and diamonds on hold to be kept in a drawer on the floor of the CTJ shop that was never locked and which was accessible to anyone, and staying silent about that risk. [133] In context, Mr Ward’s conduct amounted to substantially more than “mere involvement” in the sense considered in Yorke165 and the misrepresentation by silence on internal procedures amounted to something more than “mere silence” in the sense considered in Kenxue, Demagogue and CCP Australian Airships considered earlier.166 But for that conduct,167 Mrs Bromley would not have contracted with CTJ and she would not have suffered the loss. No person in their right mind would have entrusted CTJ with jewellery and gems knowing the reality and risk, had it been disclosed. By permitting Mrs Bromley’s jewellery and diamonds on hold to be kept in an unlocked drawer on the floor of the CTJ shop, accessible to anyone, CTJ, aided and abetted by Mr Ward, breached the statutory guarantee that CTJ’s services would be rendered with due care and skill, because storage in that way was neither safe nor secure and 164 See Jackson v Cochrane footnoted earlier. 165 Supra. 166 Supra. 167 See Wallace v Kam (2013) 250 CLR 375, 297. -- 47 of 49 -- 48 facilitated the theft of Mrs Bromley’s diamonds. The loss would probably not have occurred if Mrs Bromley’s rings and diamonds had been kept in the combination safe. Mr Ward only changed and tightened CTJ’s procedures after Mrs Bromley’s loss. That is further proof of his knowledge of their inadequacy when Mrs Bromley contracted with CTJ and at the time that her diamonds disappeared. [134] Mrs Bromley was a vulnerable person because she had no means of knowing, nor the right to be informed of, nor any control over, CTJ’s internal procedures for the security of customers’ jewellery and diamonds, and because the (mis) representation that CTJ and Mr Ward could be trusted with them was, unbeknown to her at the time, illusory. The contractual term that Mrs Bromley’s rings and diamonds would be kept safe and secure was also illusory because, as Mr Ward knew, the on-hold procedures did not achieve or ensure that. The statutory guarantee under section 60 of the ACL that CTJ’s services would be performed with due care and skill guaranteed that they would not be performed negligently, therefore the provisions of the Civil Liability Act (2003) (Qld) apply. Applying the “calculus”168 of those provisions, I find as follows. (a) Mr Ward, as sole director, and his company CTJ, owed Mrs Bromley a duty of care in tort to not perform the services negligently. The services were performed negligently in the respects I have identified. As sole director, he was responsible for the prescription, administration, and supervision, of effective security procedures for the protection of customers jewellery and diamonds. That duty was non delegable insofar as liability for lax procedures is concerned. (b) The risk of loss of Mrs Bromley’s diamonds was foreseeable, not insignificant, and one against which a reasonable person would have taken precautions, having regard to the likelihood of harm absent the precautions, the seriousness of the harm that occurred, the negligeable burden of taking the precautions because goods on hold could routinely be kept in the jeweller’s safe, and the social utility of the activity (the storage of customers’ valuables awaiting reconstruction) that created the risk of harm in circumstances where consumer protection is paramount. (c) The obvious risk to the consumer, Mrs Bromley in this case, of the lax and unsafe practice of keeping a customer’s valuable jewellery in an unlocked on hold drawer on the CTJ shop floor accessible to anyone, which was unreasonable in the circumstances, the simple and effective other course open to CTJ and Mr Ward at no additional cost to the company being to keep on hold goods of customers in the jeweller’s safe, an existing facility, and following the CTJ protocol and procedures revised by Mr Ward only after Mrs Bromley’s loss to prevent similar occurrences in future. (d) The breach of duty by CTJ and its sole controller, Mr Ward, was a necessary occurrence of the harm, that is – it caused the harm by facilitating easy, unaccountable, untraceable theft, absent which the loss would probably have not occurred, alternatively, in the consumer protection context, the scope of liability of the breaching persons (Ward and CTJ) makes it appropriate to extend that liability to them for the harm caused. 168 See Meandarra supra, at [25] per Fraser JA. -- 48 of 49 -- 49 [135] Mr Ward and CTJ are liable for their breach of the duty of care owed to Mrs Bromley for those reasons. [136] I find that the amount of $4,400.00 as the value of the brown diamond substituted for Mrs Bromley’s large solitaire engagement diamond that she collected from Mr Ward of CTJ on 12 May 2020 is not to be brought to account in reduction of CTJ’s liability to Mrs Bromley because it is property belonging to an unidentified person. Mrs Bromley must return it to CTJ. I cannot order Mr Ward and CTJ to return her diamonds because it is unclear who possesses them and an order for return of property may only be made where the person in possession is a party to the proceeding. [137] I decline Mrs Bromley’s request that I direct the Principal Registrar to refer a copy of the papers and this decision to the Commissioner of the Queensland Police Service for investigation. As I explained, the Tribunal in its minor civil dispute jurisdiction has no disciplinary role in respect of perceived shortcomings of a police investigation. The Tribunal has no criminal jurisdiction whatsoever to identify and punish miscreants. Mrs Bromley is however at liberty herself to refer a copy of the papers in her possession, together with this decision, which will also be published online by the Supreme Court Library on the QCAT case law database, if so advised. Orders [138] I order as follows. (1) The Respondents pay the Applicant $22,033.00 for claim, $1,841.30 for interest, and $352.00 for filing fee, in total $24,226.30, no later than 4 pm on 25 May 2022. (2) The Applicant return to the Respondent, CTJ Jewellery Pty Ltd, the brown diamond presently in her possession, by handing it to a current director of the company as ascertained by an ASIC search no later than 4 pm on 1 June 2022. DIRECTION (3) QCAT Registry email and mail the Orders and these Reasons for Decision to the parties and to Solicitors of record for the Respondents. -- 49 of 49 --