Bond v Sims [2015] QCATA 100

CITATION: Bond v Sims [2015] QCATA 100 PARTIES: Robert Stuart Bond (Applicant/Appellant) v Denis Sims Jane Sims (Respondents) APPLICATION NUMBER: APL099-15 MATTER TYPE: Appeals HEARING DATE: 25 June 2015 HEARD AT: Brisbane DECISION OF: A/Deputy President Stilgoe OAM DELIVERED ON: 7 July 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 5 January 2015 is set aside. 4. The proceeding is remitted to the tribunal for rehearing. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – CONSUMER/TRADER – where purchase of young working dog – where dog not suitable – where claim for refund of purchase price – where tribunal ordered return of dog and delivery of new puppy – whether tribunal biased - whether proper application of Australian Consumer Law - whether grounds for leave to appeal Australian Consumer Law s 261(c) Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Pickering v McArthur [2005] QCA 294 APPEARANCES and REPRESENTATION (if any): -- 1 of 4 -- 2 Applicant: Robert Bond Respondents: Jane Sims and Denis Sims REASONS FOR DECISION [1] Robert Bond wanted a cattle dog that would go to the lead and herd cattle with force and bite. There was a waiting list of 2 to 3 years for a fully trained dog, so he approached Denis and Jane Sims to buy a young dog. Mr Sims picked out Rex. He demonstrated Rex with some weaners in a small round yard. Mr Bond thought that Rex was stiff and disinterested but, after assurances from Mr Sims, he bought Rex for $1,500. [2] Rex will not work cattle. Mr Bond took Rex back to Mr Sims, who attempted to work with Rex but Mr Bond was not satisfied. He wanted his money back. A Magistrate, sitting in the minor civil disputes jurisdiction of the tribunal ordered that Mr and Ms Sims deliver a new, younger dog worth $770 and that Mr Bond return Rex to Mr and Ms Sims. [3] Mr Bond wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [4] Mr Bond submits that the learned Magistrate was biased against him. He submits the learned Magistrate erred in her findings about a “pecking order” in Mr Bond’s working dogs. He says the learned Magistrate did not apply the consumer law correctly, that he is entitled to a full refund and that he does not want a new dog. Was the learned Magistrate biased? [5] Bias is a very serious allegation. The test is3: … if a fair-minded lay bystander might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide. [6] Mr Bond submits that the learned Magistrate was biased because she continually interrupted him and questioned him while he was giving evidence. I have read the transcript carefully. Mr Bond told the learned Magistrate his story in detail and without significant interruption4. The learned Magistrate then engaged in a series of questions and answers that 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. 4 Transcript page 1-5, line 41 to page 1-8, line 2. -- 2 of 4 -- 3 might be interpreted as interruptions5. But the learned Magistrate did not single out Mr Bond; she interrupted both parties. [7] The learned Magistrate interrupted Mr Sims at one point, stating “I don’t know how you expect me to take anything in when both of you are yelling at me”6. She also pointed out to Mr Bond that he had told her the same piece of information three times7. While these extracts from the transcript may demonstrate a certain lack of patience, they do not, in my view, demonstrate bias. The dogs’ pecking order [8] The parties spent much of the hearing before the learned Magistrate discussing whether Rex was the victim of a pecking order in Mr Bond’s dogs. As I observed at the appeal tribunal hearing, it is a strange phrase to use in relation to a pack animal such as a dog. There is, I think, an accepted term of a “pack leader” that might better describe the behaviour in question. [9] Whatever the correct terminology, the point is irrelevant in the application for leave to appeal. The learned Magistrate found that Mr Bond did not get what he paid for8. She was prepared to order compensation. The reason why Mr Bond did not get what he paid for – whether Rex was bullied or simply not suitable – did not affect the learned Magistrate’s decision. It is not necessary for me to answer specifically each of Mr Bond’s 26 submissions on this issue. “Consumer law” and compensation [10] In his written submissions, Mr Bond stated that this was a clear case of consumer law not being upheld by the learned Magistrate. Mr Bond did not tell either the learned Magistrate or me what parts of the consumer law might apply. [11] It is implicit in her finding that Mr Bond did not get what he paid for, that the learned Magistrate determined Mr and Ms Sims had breached one of the consumer guarantees in the Australian Consumer Law. That finding does not sit well with her earlier finding that Rex was supplied as a properly trained working dog9. Either Mr and Ms Sims supplied a properly trained working dog, and Rex went “bad” after delivery through no fault of the suppliers, or Rex was unsuitable from the start. [12] If Rex was a properly trained working dog which went “bad”, then I fail to see how Mr and Ms Sims can be liable to Mr Bond under the Australian Consumer Law. Mechanical goods, such as a car or a washing machine, may work well when delivered but have a latent fault that develops over 5 Transcript page 1-8, line 25 to page 1-11, line 18; page 1-11, line 46 to page 1-12, line 47. 6 Transcript page 1-16, lines 29 – 30. 7 Transcript page 1-22, lines 43 – 44. 8 Transcript page 1-24, line 46. 9 Transcript page 1-24, lines 30- 31. -- 3 of 4 -- 4 time. The same analysis cannot apply to a young animal which, having left its trainer’s control, will continue to develop in response to its new owner and its environment. [13] If Rex was never capable of performing the work required of it, then it is a question of whether Mr and Ms Sims guaranteed that it would so perform. The evidence on that issue is unclear. If Rex was never capable of being a working dog, then it is arguable that there was a major failure of a guarantee. In that case, Mr Bond as entitled to reject Rex and obtain a full refund. [14] A supplier may remedy a failure to comply with a guarantee by replacing the goods – that is replacing Rex – only if the goods are replaced with good of an identical type10. Rex was a young dog. A puppy that can be trained is not a dog of an identical type. [15] As none of these questions was canvassed before the learned Magistrate, and she made no discernable findings about them, there is an error of law for which leave to appeal should be granted and the appeal allowed. The decision of 5 January 2015 should be set aside and the proceeding remitted to the tribunal for rehearing. [16] As I have already observed, the learned Magistrate received no assistance from the parties about the relevant legal principles she was to apply. I have considerable sympathy for the learned Magistrate but that is one of the challenges of the minor civil disputes jurisdiction where legal assistance is the exception, not the rule. [17] At the hearing of the application for leave to appeal, I also observed to the parties that the legal issues involved in this dispute are complex. It is a matter where a sensible solution – such as that ordered by the learned Magistrate – may be preferable to a legal solution. The parties may benefit from a further mediation of the dispute. 10 Australian Consumer Law s 261(c). -- 4 of 4 --