Amos v Aldi Stores Supermarket Pty Ltd [2018] QCATA 50

CITATION: Amos v Aldi Stores Supermarket Pty Ltd [2018] QCATA 50 PARTIES: Edward Amos (Applicant/Appellant) v Aldi Stores Supermarket Pty Ltd (Respondent) APPLICATION NUMBER: APL336-17 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Howe DELIVERED ON: 23 April 2018 DELIVERED AT: Brisbane ORDERS MADE: The application for leave to appeal is refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – where a supermarket style store advertised particular XL size goods for sale – where store did not stock all sizes advertised on day of sale – where limited evidence that other stores did not have that size product in stock on the day of sale – where disclaimer in sales brochure – where the market the merchant traded in considered – where respondent gave evidence by email – where tribunal took unsworn evidence into account – where tribunal concluded failure to stock XL size product at one store not bait advertising Australian Consumer Law (Schedule 2 Competition and Consumer Law) 2010 (Cth), s 35, s 236, s 237 Fair Trading Act 1989 (Qld), s 51 -- 1 of 8 -- 2 Amos v Aldi Stores Supermarket [2017] QCAT (unreported) Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 66 ALR 299 Pickering v McArthur [2005] QCA 294 The Watermark Body Corporate v Jon Diplock t/as Diplock Building Service [2015] QCAT 97 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION The respondent company (Aldi) advertised hail protective car covers for sale at their stores on 31 December 2016. The covers were advertised as available in small/medium, large or XL sizes. The price was $99.99. Mr Amos attended the Toombul Aldi store to purchase two covers but found only three covers available, none in an XL size. All were small/medium size. Mr Amos brought proceedings as a consumer in the minor civil dispute jurisdiction of the tribunal. He sought an order that Aldi supply to him two XL size covers at $99.99 each, and in the event Aldi could not do so, that the company supply him with two XL size covers of the same quality for the price of $199.98. The matter was heard on 8 May 2017 with the tribunal ordering that the application be dismissed. Mr Amos seeks leave to appeal that decision. Given this is an appeal from a decision made in the tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.1 Leave to appeal will usually be granted only where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.2 Mr Amos relies on the following grounds of appeal: Ground 1 The decision of the tribunal was wrong in law and/or in fact. Ground 2 The decision of the tribunal was against the evidence and the weight of the evidence and was unreasonable. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294, [3]. -- 2 of 8 -- 3 Ground 3 The tribunal erred in law and misdirected itself in wrongly receiving as evidence an email of 20 February 2017 from Aldi which email is an unsigned, unsworn inadmissible document which asserts self serving unsubstantiated allegations which the appellant objected to being put in evidence and particularly so as the appellant was denied the opportunity of examining the author of the said email and/or its integrity. Ground 4 The tribunal erred in law and misdirected itself upon the true meaning and construction of s 35(1) and (2) of the Australian Consumer Law (Schedule 2 Competition and Consumer Law) 2010 (Cth). Ground 5 The tribunal erred in law by allowing irrelevant and extraneous matters to influence its consideration. As stated above, in an application for leave to appeal one of the things an appellant must do is point to an error in the decision below. Simply disagreeing with the outcome reached below is not enough. The appellant must say with some precision why the decision sought to be appealed is wrong. Hence with respect to grounds 1, 2 and 5, to simply assert as a ground of appeal that the decision of the tribunal was wrong in law and/or fact and that the decision was against the weight of the evidence or the tribunal erred in taking into account irrelevant matters without particulars of error alleged, discloses no adequate grounds of appeal. Mr Amos also filed submissions in support of his application for leave to appeal. In those submissions, he contends that ground 2 should be read with ground 3 and ground 5 read with all the other grounds of appeal. His grounds of appeal are somewhat confusing however the application for leave to appeal will be considered in those groupings save that ground 1 is inappropriate as a discrete ground of appeal and will not be considered as such. Grounds 2, 3 and 5 Ground 2: the decision of the tribunal was against the evidence and the weight of the evidence and was unreasonable. Ground 3: the tribunal erred in law and misdirected itself in wrongly receiving as evidence an email of 20 February 2017 from Aldi which email is an unsigned, unsworn inadmissible document which asserts self-serving unsubstantiated allegations which the appellant objected to being put in evidence and particularly so as the appellant was denied the opportunity of examining the author of the said email and/or its integrity. -- 3 of 8 -- 4 Ground 5: the tribunal erred in law by allowing irrelevant and extraneous matters to influence its consideration. Mr Amos attended the hearing and gave evidence. His witness Mrs Morris gave evidence by telephone. Aldi did not appear, however they submitted a statement by email addressed to the registry dated 20 February 2017. The tribunal accepted the statements made in the email as persuasive. That evidence was not sworn. Mr Amos says in his submission that he objected to the reception of the email statement at hearing given the author was not available for questioning. Mr Amos did not object at the hearing to the tribunal receiving the email as evidence. He complained about it being self-serving, but to a certain extent, all evidence given by a party is self-serving. The transcript reveals the email was only seen by Mr Amos on the day of hearing. A copy was not forwarded to him by Aldi before the hearing. He said if it had been he may have called for the production of records, which it appears is a reference to a comment by Mr Amos that he would like to know how many hail covers Aldi ‘got in’, where they were distributed and how many.3 Mr Amos says the tribunal should not have accepted the unsworn email evidence in any case. By s 28 of the QCAT Act in conducting proceedings the tribunal: is not bound by the rules of evidence or any practices or procedures applying to courts of record other than to the extent the tribunal adopts the rules, practices and procedures the tribunal must observe the rules of natural justice; must act with as little formality and technicality and speed as the requirements of the QCAT Act, any enabling Act, the rules and a proper consideration of the matters before the tribunal permit; and must ensure, so far as practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts. The tribunal often accepts unsworn statements of evidence in disputes determined in the minor civil disputes list. Mr Amos refers to the decision of The Watermark Body Corporate v Jon Diplock t/as Diplock Building Service [2015] QCAT 97 where the tribunal found an unsigned and unsworn report of which the author was not called to give evidence to be of no assistance to the tribunal. That matter was a building matter, a difficult and oftentimes complex jurisdiction and far different to proceedings in the minor civil disputes list. It appears there was a significant amount of evidence available to the learned member in The Watermark case for his consideration. What the 3 Transcript 1-20 Line 34. -- 4 of 8 -- 5 evidence was in the unsworn statement is not disclosed. The rejection of unsworn evidence where a deponent is not available for cross-examination, as in that matter, is entirely a matter for determination based on the facts and circumstances applying there as assessed by the learned member hearing the dispute. Regardless of the learned member’s comments in The Watermark, given the provisions of s 28 of the QCAT Act it cannot be argued that it is an error of law or that the tribunal has misdirected itself only on the basis that the receipt of unsworn evidence offends against the rules of evidence. Similarly if unsworn evidence is relied on in determining the issues in dispute. The matter involved a minor civil dispute. In such matters, parties are almost invariably without any legal experience or legal representation. The minor dispute list is a very busy forum where the tribunal endeavours to resolve disputes with the minimum of fuss and delay and without burdening parties with complex rules of evidence. I find no error of law in the tribunal considering the unsworn submission of the respondent, including, in the circumstances, that the author of the statement is not available for cross-examination. That is a factor which goes to the weight to be given the evidence and is entirely a different matter. Mr Amos has little prospect of success in respect of this combined ground of appeal. Grounds 2, 4 and 5 Ground 2 The decision of the tribunal was against the evidence and the weight of the evidence and was unreasonable. Ground 4 The tribunal erred in law and misdirected itself upon the true meaning and construction of s 35(1) and (2) of the Australian Consumer Law Schedule 2 Competition and Consumer Law 2010 (Cth). Ground 5 The tribunal erred in law by allowing irrelevant and extraneous matters to influence its consideration. Mr Amos attended the hearing in person but Aldi made no appearance. Instead, as stated, they relied on the email of 20 February 2017. Mr Amos contends that the only evidence before the tribunal was his evidence that the Toombul store had no XL size hail covers on the day of sale and that that was also the case with two other stores. He submits ‘(in) the absence of admissible competing evidence from the Respondent, that evidence was capable of being accepted and ought to have been accepted as the only evidence available on the issue.’4 4 Appeal submissions, [34]. -- 5 of 8 -- 6 But, that is not correct. There was also the evidence in the email and the disclaimer clause at the bottom of the sales brochure. The full terms of the disclaimer in the sales brochure read: Special Buys. While stocks last – please note stocks are limited and will vary between stores. Despite our careful planning, we apologise if selected items may sell out on the first day due to unexpected high demand. In the event of unexpected high demand, Aldi Stores reserves the right to limit purchases to reasonable quantities. The brochure reminds the consumer of two things about stock sold as Special Buys. First, that stocks are limited. Second, that stock will vary between stores. The tribunal said the first issue for determination was whether, having regard to the nature of the market and the advertisement (sales brochure) there were reasonable grounds for believing that Aldi was not able to supply the advertised goods at the advertised price for a reasonable period. 5 That is, the tribunal set out the elements to be considered under s 35 of the Australian Consumer Law Schedule 2 Competition and Consumer Law 2010 (Cth) (‘ACL’). The tribunal then considered them. The tribunal took the statements made in the disclaimer clause in the sales brochure into account and that the disclaimer suggested not all customers would be able to purchase the items advertised.6 The tribunal also took into account the email evidence from Aldi: a) That Aldi had implemented a comprehensive ACL compliance framework. b) That each store obtains different levels of stock of Special Buys according to established customer purchasing levels. c) That the Aldi buyer for the product purchased the product based on customer demand of ‘like for like’ products. The tribunal found these factors relevant in determining the nature of the market in which the trader (Aldi) carried on business and advertised its goods for sale and following on from that the reasonableness of the supply and quantities of the goods offered for sale. The tribunal concluded it was reasonable that different amounts of stock be available in different Aldi shops.7 There is no suggestion that Aldi used the advertisement of XL size hail covers at a cheap price as bait to draw Mr Amos into the store with the intention of selling him another more expensive type of hail cover. 5 Ibid [37]. 6 Amos v Aldi Stores Supermarket [2017] QCAT (unreported), [31]. 7 Ibid [43]. -- 6 of 8 -- 7 Advertising goods at cheap prices to draw buyers into a store is not in itself prohibited by s 35 ACL as long as the requirements of s 35 ACL are met. The tribunal found insufficient evidence that Aldi did not make the car covers available ‘at other shops’. Though not clearly stated, the tribunal was referring, it seems, to other Aldi stores in Australia in the reference to ‘other shops’. Against that it weighed the evidence by Mr Amos and Mrs Morris that there were no XL size hail covers in three Aldi stores. Mrs Morris’ evidence does not offer much by way of support to Mr Amos. She said she did not go to the Fortitude Valley Aldi store on the day of sale but only some days later. Further, she did not ask there if they had ever had XL size hail covers in stock. She simply found there were none available when she went. An additional matter of note from Mrs Morris’ evidence was that she said she found she could not telephone individual Aldi stores, that there was only one central number for Aldi. Mr Amos does not explain how he says he managed to telephone two individual Aldi stores other than the Toombul store, which other stores he does not name. Presumably, he would have had to telephone the same central number, which it appears he did on his evidence that he initially telephoned only to be told Aldi was closed.8 The tribunal was entitled to take all these matters into account and assess the weight to be given them, which it did, though it is unclear how the statement in the email that Aldi had implemented a comprehensive ACL compliance framework was relevant. Though that irrelevant matter may have been taken into account, unless the conclusion reached by the tribunal was manifestly unreasonable in consequence, it is not appropriate for an appeal tribunal to set it aside merely because of that.9 The disclaimer clearly stated that stock was limited and varied between stores. Stocks were supplied to different stores dependent on previous trading activity at stores, described as ‘like for like’ in the email from Aldi. It was open to the tribunal to conclude the failure to stock XL size hail covers at Toombul store or at two other stores out of many Aldi stores did not amount to Aldi engaging in bait advertising where that particular size product was not available at its Toombul store on the day of sale. Accordingly, there being no error of consequence disclosed on the part of the tribunal the application for leave to appeal is dismissed. It should be noted that, even had Mr Amos succeeded in his application for leave to appeal, the appeal itself would fail because of the remedy sought. He sought a remedy beyond the jurisdiction of the tribunal. He sought an order that the tribunal direct Aldi to supply him with two XL size hail covers 8 T1-7 L 42-44. 9 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 66 ALR 299, 309-310 (Mason J). -- 7 of 8 -- 8 ‘as advertised’, and he was to pay Aldi $199.98 when that was done. In further submissions prior to hearing he added a claim to relief for an order that if no such advertised covers were available then Aldi be ordered to supply hail covers ‘of the same quality as the goods advertised … for the price of $199.98’. Mr Amos would be entitled to an award of damages under s 236 ACL had he been successful. However, Mr Amos has paid nothing and received nothing and there is no evidence that these particular covers are not otherwise available at or about the advertised price from other merchants. His damages would be nought. The orders sought are available under s 237 ACL, but only from the District Court,10 not from the tribunal. 10 Fair Trading Act 1989, s 51. -- 8 of 8 --