Davidson v Jetta Express [2011] QCATA 294

CITATION: Davidson v Jetta Express [2011] QCATA 294 PARTIES: Aaron Davidson (Applicant/Appellant) v Jetta Express (Respondent) APPLICATION NUMBER: APL144-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 25 October 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS: Minor Civil Dispute – whether the respondent in breach of contract – where damages claimed to remote – whether error of law Queensland Civil and Administrative Tribunal Act 2009, s 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Hadley v Baxendale (1854) 156 ER 145 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 5 -- 2 REASONS FOR DECISION [1] On 7 September 2010 Mr Davidson entered into a contract with Jetta express for it to deliver excess baggage to Guangzhau airport in China. The shipper’s letter of instruction signed by Mr Davidson indicates that the arrival time for the baggage was to be 13 September 2010. [2] Associated with that document is a “yellow card” which has the estimated arrival date 14 September 2010. Mr Davidson acknowledges receiving a copy of this card. It provided:- “All baggage is to arrival of destination airport (except door to door) and does not include duty taxes, trust and clearances terminal fees, custom fees and/or quarantine fees (if applicable) Jetta Express aim to get your baggage to its destination at the requested time but sometimes delays occur which are beyond our control due to airlines and current security requirements.” [3] The baggage was received by Singapore Airlines, the carrier, on 13 September 2010. The flight departed that night at 23.33, and arrived in Guangzhau on 15 September 2010 at 13.30. On the face of it, there are no unusual delays in the shipment from Australia to Guangzhau. Once the baggage arrived at Guangzhau airport, it was then delivered to a bonded warehouse for collection. Mr Davidson did not become aware of the location of the baggage for another day after the 15th, presumably on the 16th. [4] The “baggage” was in fact a miniature turbine which was to be displayed at a trade fair in China which was conducted on 15 September. As it happened he did not retrieve the baggage until approximately a month later at a retrieval cost of $300. [5] As he was not able to use the turbine at the trade fair, he contends that his business trip to China was a failure and has sought to be reimbursed part of the costs of the trip. He contends that Jetta Express’ breached the contract in failing to have the baggage delivered on 14 September 2010 “at the Guangzhau airport” so it could be immediately retrieved by him that day. [6] He commenced a proceeding in the minor civil disputes jurisdiction of QCAT on 7 October 2010. By way of a response, Jetta Express filed an application in a miscellaneous matter to have the claim struck out and dismissed on the basis that Jetta Express did not breach its contract with Mr Davidson. [7] The matter came on for hearing before a Tribunal Adjudicator on 11 April 2011. Reasons for the decision to dismiss Mr Davidson’s claim were delivered. [8] From that decision Mr Davidson has filed an application for leave to appeal or appeal in the Tribunal. The grounds of appeal include the following: -- 2 of 5 -- 3  Jetta admitted the wrong doing;  Jetta did not deliver the excess baggage in 7 days as agreed;  Jetta did not deliver the baggage to the airport as agreed – it was delivered to a bonded warehouse;  Jetta provided false and misleading information (of gouging on “all the time” in China) prior to dispatch;  Jetta did not provide the number for Singapore Airlines on the airwave bill;  Jetta introduced malicious and prejudicial evidence against the applicant;  The applicant was denied an adjournment. [9] As this is an appeal from a decision in the minor civil disputes jurisdiction, leave to appeal is necessary.1 [10] The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?2 Is there a reasonable prospect that the applicant will obtain substantive relief?3 Is leave necessary to correct a substantial injustice to the applicant caused by some error?4 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?5 [11] The learned Adjudicator gave detailed reasons for the decision. She correctly identified that the onus in proving the contract, its terms and any breach was on the applicant. She correctly identified that it was Jetta Express’s obligation to deliver the baggage to the arrival airport which clearly occurred in this case. Subsequent to its arrival at Guangzhau airport it was then placed into a bonded warehouse. This is obviously to comply with Chinese import and security regulations. [12] The fact that the baggage arrived a day late was certainly within the contemplation of the terms of the contract because the date of arrival was estimated only. The fact that it was kept in Brisbane for seven days seems to result from some security requirements for baggage leaving Australia, although there is some uncertainty on this point. [13] There is no reason why the learned Adjudicator could not rely on the disclaimer clause referred to in the terms and conditions of the contract. [14] Mr Davidson contends that Jetta Express engaged in misleading and deceptive conduct and breached section 52 of the Trade Practices Act 1 QCAT Act section 142(3). 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232 at 2. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. -- 3 of 5 -- 4 1974. There are two things to be said about this. Firstly, the Trade Practices Act 1974 was not relied upon during the course of the hearing. Secondly there is no evidence that Jetta Express is a corporation, although I assume it probably is, so that jurisdiction under the Trade Practices Act 1974 is enlivened. [15] If I am wrong about this contention, then the question becomes whether the representation by the Jetta Express staff that they had no knowledge of price gouging in China actually induced Mr Davidson to enter into the contract. The learned Adjudicator did not have to consider this question because the misleading and deceptive conduct claim has only been raised on this appeal. Further there was no evidence that he was so induced nor is there evidence of actual price gouging. The cost of holding the turbine in bonded storage for a month seemed reasonable. [16] Even if the applicant could identify some error to justify a finding that Jetta Express did breach its contract, a difficulty still arises with the damages claimed. At the time of the hearing the claim was for $4,775 which included cost of half the trip plus, it seems some costs of preparing the affidavit of Mr Ansell. Damages can only be recovered from a breach of contract if they fairly and reasonably arise naturally, according to the usual course of things from the breach itself. Damages might also be recovered if it could be reasonably supposed to have been in the contemplation of both parties at the time the contract was made and they were a probable result of the breach6. [17] With respect to the first limb, the only direct loss from the breach is the cost of the goods being held in the bonded warehouse for a period of about a month. This loss is limited to about $300. Even so, in terms of mitigation, there does not appear to be any apparent reason why the goods could not have been recovered at an earlier time. [18] With respect to the second limb, that is the loss that might have been in the reasonable contemplation of the parties, on any view, a the time the contract was made, Jetta Express could not have reasonably contemplated that if the baggage arrived one day late Mr Davidson’s whole mission to China would result in failure. There is no evidence of any discussion between Mr Davidson and any Jetta Express representative where he made known the purpose of his trip to China and the importance of the turbine arriving on time. This consequential loss is not recoverable. In addition to that, the learned Adjudicator made specific findings that the trip was not a complete loss because, according to the newspaper7 Mr Davidson claimed it as a success. This evidence is certainly not conclusive but it does purport to report Mr Davidson’s views about the trip. [19] Even if a breach of contract was proved, the damages claimed are not recoverable. 6 Hadley v Baxendale (1854) 156 ER 145 at 151. 7 Although I have reservations about the lack of this evidence. -- 4 of 5 -- 5 [20] The detailed reasons of the learned Adjudicator are not indicative of any denial of procedural fairness. Mr Davidson was able to adduce all relevant evidence during the hearing, including the documentary evidence, and it is difficult to see how he could have presented his case any better than he did on the day of the hearing. [21] Mr Davidson has been unable to satisfy the Appeal Tribunal that the learned Adjudicator has fallen into error nor is there any prospect he would obtain substantive relief if leave was granted. Here, there is no substantial injustice to remedy. The conclusions reached by the learned Adjudicator were clearly open on the evidence available to her. As no error of law has been identified, nor is any apparent, leave to appeal must be refused. -- 5 of 5 --