Barton v Bridgeman & Anor [2020] QDC 16

District Court of Queensland|2020-03-05

TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - CONSUMER PROTECTION - GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS - GUARANTEES, CONDITIONS AND WARRANTIES - where defendants supplied a horse represented to be a gelding - where horse found not to be a gelding - whether representation was a breach of statutory guarantees in Part 3-2 (ACL) - whether any breach was a major failure under ACL

TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - ENFORCEMENT AND REMEDIES -where plaintiff notified defendants of rejection of horse - where horse injured before notification - whether injury meant goods were "damaged after being delivered" - whether plaintiff entitled to reject goods - whether any damage to goods related to state or condition at time of supply - whether property in goods revested in defendants - whether plaintiff's failure to return goods resulted in loss of plaintiff's entitlement to reject

TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - ENFORCEMENT AND REMEDIES - ACTIONS FOR DAMAGES - where plaintiff claimed for loss and damage suffered following the purchase of a horse - where plaintiff sought refund of purchase price - where defendants refused to refund purchase price - where plaintiff sought compensation orders - whether plaintiff has a right of action for purchase price - whether compensation orders should be made - whether plaintiff failed to mitigate loss or damage

TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS - PARTICULAR CASES - OTHER CASES - where horse supplied represented to be a gelding - where horse found not to be a gelding - whether representation was false or misleading

TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - GENERALLY - APPLICATION OF LEGISLATION - where plaintiff's pleading relied on the ACL not the ACL (Queensland) - where defendants are individuals - where defendants relied on ACL - whether sufficient for plaintiff to plead reliance upon the ACL rather than the ACL (Queensland)

Australian Consumer Law (Cth) s 2, s 3, s 18, s 29, s 54, s 56, s 59, s 236, s 237, s 259, s 260, s 262, s 263

Fair Trading (Australian Consumer Law) Amendment Act 2010 (Qld), s 18

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 149, r 150

Awad v Twin Creeks Properties Pty Limited [2012] NSWCA 200, considered

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, cited

Ferraro v DBN Holdings Aust Pty Ltd trading as Sports Auto Group [2015] FCA 1127, considered

Glenco Manufacturing Pty Ltd v Ferrari [2005] QSC 5; [2005] 2 Qd R 129, considered

HTW Valuers (Central Queensland) Pty Ltd v Astonland [2004] HCA 54; (2004) 217 CLR 640, cited

Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494, cited

Potts v Miller [1940] HCA 43; (1940) 64 CLR 282, cited

Roberts v Australia and New Zealand Banking Group Limited [2005] QCA 470; [2006] 1 Qd R 482, considered

Vautin v By Winddown, Inc. (Formerly Bertram Yachts) (No 4) [2018] FCA 426, considered

Wyzenbeek v Australasian Marine Import Pty Ltd (No 2) [2019] FCAFC 167, considered

[1] The claim by the plaintiff, Ms Barton, a competitive dressage rider, is for loss and damage suffered following the purchase by her from the defendants, Mr and Mrs Bridgeman (the Bridgemans), of a horse named "Silk Bridge Dante" (Dante) for the purchase price of $17,000.

[2] The Bridgemans carried on a business of supplying, marketing and distributing horses for sale in Australia in partnership under the registered trading name of "Silk Bridge Equine Services".

[3] Ms Barton alleges that Dante was not a gelding, as advertised by the Bridgemans, but instead had testicular matter and behaved like a stallion.

[4] At the end of the trial various issues arose as to the causes of action open to Ms Barton and as to the relief to which she was entitled.

[5] Before dealing with these matters, it is desirable to set out the facts.

[6] At the hearing, Ms Barton gave evidence and called Mr Rowan Sheridan, the horse trainer engaged to perform a behavioural assessment on Dante; Dr David Lovell, an equine veterinarian with 49 years' experience who treated Dante; Dr Natalie Fraser, a specialist at the University of Queensland in veterinary reproduction who performed testing on Dante and Mr Clinton Rich, a horse valuer.

[7] The Bridgemans did not give or call any evidence.

[8] Although each of the witnesses called by Ms Barton were cross-examined, most of the evidence was not seriously in dispute.

[9] The factual issues in dispute were mainly whether Ms Barton relied upon the representation made by the Bridgemans and the reasons why Ms Barton wanted to return the horse. In their final submissions, the Bridgemans attacked the credibility of Ms Barton generally, but particularly in relation to those issues.

[10] It is convenient if the facts are explained, before those submissions are dealt with. It is sufficient for present purposes to state that I found Ms Barton a credible witness and I reject the matters relied upon by the Bridgemans to found their submissions to the contrary. This makes it relatively easy to set out the facts in full.

[11] Ms Barton was a veterinarian by profession and is currently undertaking an equine related PhD. Ms Barton competed in dressage at the State Grand Prix level and acted as a judge for dressage competitions. Ms Barton had trained dressage horses, although she was not a commercial trainer and did not get paid money for training. While Ms Barton was not actively looking for a new horse at the relevant time, she had in her mind a replacement horse for her current dressage horse by way of a succession plan. At the time, Ms Barton was the owner of six horses.

[12] Dante had been advertised and promoted by the Bridgemans to the public since July 2014 as being for sale and as being, amongst other things:

(b) The offspring of sire of Donautraum and the dame "Silk Bridge Contessa"; and

[13] The advertisements and promotional material had been published by the Bridgemans in videos on YouTube since 22 July 2014 and on the Bridgemans' Facebook page under the name "Silk Bridge Warmbloods". In oral evidence, Ms Barton confirmed that she had viewed the videos before contacting the defendants through their Facebook website. In their defence, the defendants admit the videos and Facebook page advertised that Dante was, amongst other things, an unbroken gelding.

[14] Ms Barton said that she had become aware that Dante was for sale through friends who knew that there was a particular bloodline that Ms Barton liked because that progeny reliably had quite good temperaments. Her friends had mentioned that they had seen a horse for sale by this particular stallion on the Bridgemans' Facebook page.

[15] After a number of exchanges of Facebook messages on the Bridgemans' Facebook page, on 26 January 2016 Ms Barton went to the Bridgemans' property and had a ride on Dante.

[16] In the following few weeks, Ms Barton visited the property several times, observed Dante at the property and observed Dante being saddled up and ridden by Mr Bridgeman, rode Dante on a number of occasions, had a friend ride Dante, arranged for another veterinarian to come to the property to take a series of x-rays of Dante's joints, listened to Dante's heart and assessed Dante visually for lameness. Ms Barton said she spent about an hour with the horse on each of her visits.

[17] Ms Barton said, in discussions with Mr Bridgeman, she told Mr Bridgeman that she wanted a gelding. She said that she told the Bridgemans that she wanted a horse suitable for dressage training, a horse with a calm temperament and one that would not require riding every day or require a large amount of work to be done on it to bring the horse to a competitive level.

[18] In their defence, the Bridgemans admitted to being informed by Ms Barton that she wanted a gelding and a horse that was suitable for dressage training and a horse with a calm temperament.

[19] In the course of her examination in chief, questions were asked in relation to the time Ms Barton inspected Dante at the Gatton Indoor Arena, while Dante was being trained. A question was asked as to whether, on that occasion, Mr Bridgeman had said anything to her about transporting Dante to shows. Ms Barton said:

"Not on that particular occasion, but another day at the defendants' property we were talking about taking the horse to shows and he suggested to me that he wouldn't recommend taking the horse on a float with my mare because the horse often bonds to - picks out a female horse at the show and will call out to them a lot. I - I think that may have been the day that I made in jest the comment, "Are you sure that the vet removed both testicles when he castrated him?" and he replied to me, "Absolutely, definitely." They saw the vet take both testicles out."[1]

[20] Ms Barton was then asked why she would make that sort of comment. Ms Barton responded:

"I just made it in jest. It was, I mean, ironic in hindsight, but it was the comment - I can't remember exactly what it was, but just about the horse particularly attaching to a - to another female horse, a mare, and - and calling out to her a lot, and they had disclosed to me that the horse would squeal and strike at other geldings, which is not an unusual behaviour for horses to - when they make contact to - to squeal and strike with one leg. It turns out Dante's reaction is actually a lot more dramatic than just a squeal and strike, but I hadn't been overly concerned about that comment."[2]

[21] Ms Barton was asked what she would have done if the Bridgemans had said that they were not sure that he's been castrated. Ms Barton responded, "There's no way I would have bought the horse."

[22] In cross-examination, Ms Barton was questioned further in relation to this conversation with Mr Bridgeman. Ms Barton admitted that, prior to that exchange with Mr Bridgeman, she had already been told by the Bridgemans that Dr Scantlebury had been engaged to castrate the horse.

[23] In cross-examination, the following exchange then occurred:

"So, at that point in time, the representation that the horse was a gelding you knew was a representation that the horse was a gelding because Dr Scantlebury has performed a castration and has removed the two testicles? - - - That's what they believed had happened.

And that's what you say is the representation - well, you say you relied on the representation that the horse was a gelding and the horse had been castrated by Dr Scantlebury? - - - Correct.

And the two [indistinct] you've been told the horse is a gelding? - - - Mmm.

The basis for the horse being a gelding, you were told, was because Dr Scantlebury had castrated the horse. You asked for clarification - in jest, but clarification - - -?- - -in jest. Yes.

- - - nevertheless - that, "Well, did he remove those testicles?" and you were told, "yes, he did" - - - Yes, and I even [clarified] that with Mr Scantlebury after I started having suspicions that there was something wrong."[3]

[24] It is accepted that the clarification Ms Barton obtained from Dr Scantlebury was after Ms Barton had purchased the horse and had taken the horse to her property.

[25] Given the manner in which the exchange occurred and the questions were asked, I do not consider that it can be said that as a result of that exchange, the representation that the horse was a gelding should be interpreted to mean, as submitted by the Bridgemans, that Dr Scantlebury had performed a procedure to remove both testicles when he castrated the horse.

[26] In giving evidence, Ms Barton said that she would never have entertained a stallion. She said she did not ride stallions and did not have the facilities to house stallions. She said that she really wanted a horse that did not have hormones.

[27] The fact of the horse being a gelding was one of the representations made and relied upon.

[28] Further, Ms Barton's evidence was that everything she had observed of Dante at the property was consistent with Dante being a gelding. In cross-examination, when Ms Barton was asked about that, Ms Barton accepted that, up to that point in time, "the horse wasn't put in any situations where he wouldn't have acted like that."[4]

[29] Ms Barton said that Dante was paddocked on his own at the Bridgemans but she had not thought that was unusual. She said he was paddocked next to a stallion with a laneway in between them. She said, "...in hindsight looking back all of their other horses except for the stallion live in a share paddock situation, and so perhaps for this particular property that was unusual, but I didn't think anything of it."[5] Ms Barton said, in those sorts of stable conditions, you would not expect to see any stallion-like behaviours.

[30] Ms Barton said that Mr Bridgeman had recommended to her that Dante not be paddocked with other geldings. She said he had told her that Dante would squeal and strike in that setting. Ms Barton said she asked Mr Bridgeman if Dante would be okay next to a mare, and was told, "He's fine. He just doesn't like when they go away."[6]

[31] Ms Barton says trouble started soon after Dante arrived at her property. Ms Barton described incidents of when Dante roared at the manure left by a former horse, striking at it with both front feet. Ms Barton said it was more than a squeal. She said at the time she thought that behaviour was very unusual for a gelding. Ms Barton confirmed that she loved the horse and thought the behaviour arose from being in a new paddock and his having previously been stabled near another stallion. She said that that really made no logical sense but she was trying to justify the strange behaviour.

[32] Ms Barton said, following Mr Bridgeman's advice, she decided to paddock Dante on his own next to her mare and not with the other geldings. She said, at her premises, they were her only choices. Ms Barton said that while Dante was in the paddock next to the mare, Dante had gone up and nicked at her. Ms Barton said that she thought it was after that incident that she rang Dr Scantlebury, the veterinarian who had performed the castration, and asked whether anything had gone wrong when he gelded the horse. Ms Barton said that Dr Scantlebury told her that he removed both testicles.

[33] Ms Barton described her first ride on Dante at home as unusual, with Dante having been unusually distracted by other horses. In a message sent to a friend, Ms Barton had described it as, "just like riding a young stallion."[7]

[34] As time progressed, Dante continued to roar and behave territorially with other horses' manure, remained to have extreme interest in the mare in the next paddock and became more and more belligerent. The farrier who had attended at the property had difficulty picking up Dante's back leg. Ms Barton said that she spoke to the defendant, Mr Bridgeman, about that and that Mr Bridgeman said that the farrier had not had any difficulty previously. Ms Barton said she had to do some work with Dante so as to be able to pick up his legs.

[35] On one day, when Ms Barton was riding Dante and she put Dante into a trot, Dante tipped her off. Ms Barton said that she continued to think something was not quite right; his behaviour were not consistent with a gelding and he was just pushing the boundaries.

[36] Ms Barton decided to send Dante to a horse trainer, Rowan Sheridan, for a behaviour assessment. She said she had a lot of respect for Mr Sheridan; he had worked with the trainer who runs the Australian Equine Behaviour Centre, he had written many books and published a thesis on equine behaviours.

[37] In giving evidence, Mr Sheridan confirmed that Dante had been brought to his training establishment, Windsong, to assess his behaviour. He explained that he went through his training regime, looking at the horse's basics responses in hand and on the saddle.

[38] He said he observed "some stallion behaviours."[8] He described the behaviours as conflict behaviours in the paddock and in training; pushing behaviours; spiked arousal levels around other horses, though not all the time; biting type behaviour of the lead and trying to bite his hand when being led and neck rolling and barging of the shoulder. He said, in riding past the mares on the arena, he saw conflict behaviours; Dante had jumped around a little bit and then spun back towards the other horses and, when asked to go on, even had a couple of rears.

[39] Mr Sheridan had a further conversation with Ms Barton and Ms Barton went out to Windsong and collected some blood from Dante and submitted it to the UQ Vets - Equine Specialist Hospital (UQ Vets) for hormonal analysis.

[40] Dante remained at Windsong while awaiting the test results. Ms Barton said she could not bring Dante home to her property. She said that with his increasingly bad behaviours she was getting reluctant to keep the horse at home, particularly being paddocked next to her female horses and as she had a small child at home.

[41] The test results from the UQ Vets were received by Ms Barton on 7 May 2016. The testosterone level was 1.8 which Ms Barton described as being elevated; above that of a castrated horse. She said a castrated horse should be less than 0.15. In cross-examination, Ms Barton agreed that upon receipt of those results and based on her understanding of those results, she had jumped to the conclusion that this horse was not a gelding.

[42] Ms Barton also received the anti-Mullerian hormone (AMH) results. Her evidence was that she needed to discuss those results as she was not familiar with the AMH. Ms Barton said she had not obtained that advice by the time the injury occurred.

[43] Once advice had been obtained, Ms Barton explained that the AMH was an interesting hormone in horses; it is very low in geldings and extremely high in cryptorchidic horses, over 36 picomole per litre and in stallions it is 16 picomole per litre. She said Dante's was greater than 168 picomole, so it was extremely elevated.

[44] On 9 May 2016, whilst still at Windsong, Dante received an injury by way of a laceration to the inside of his left pastern. In evidence, Mr Sheridan said that he did not see the injury happen but, as he was riding past, from about 15 metres away, he noticed something was wrong. He said the injury must have happened in a very short time span, as before observing the injury about 10 minutes earlier he been right near him.

[45] Mr Sheridan said that when he observed him, he thought he had a stick or something sticking out of his leg. He said as he got closer he realised it was quite a bit of blood coming out. He said he then noticed that the fence had been stretched. He said, "It wasn't broken... but it had...evidently been pulled." The fence was an electric fence with a plain wire which was plastic coated white over the wire. The damaged section of the fence was one metre 20 or one metre 30 up the fence. When asked what damage he saw to the fence, Mr Sheridan said:

"..the electric [indistinct] wire had been stretched, not snapped, not stretched right down to the ground - like, it wasn't hanging on the ground, but normally it is [indistinct] tension and it had definitely had a tug."[9]

[46] Ms Barton was contacted by Mr Sheridan. Ms Barton instructed Mr Sheridan to contact Redlands Veterinary Clinic (Redlands Clinic) because she considered that they were a well-respected equine clinic.

[47] The injury required immediate attention as the horse had nicked an artery in the process. Mr Sheridan applied a bandage. When the ambulatory veterinarian arrived, the bandage was removed, the wound was dressed and a compression bandage applied to stop the bleeding. Ms Barton attended at Windsong and had a conversation by telephone with Dr Lovell, the Redlands Clinic's principal, and he advised that the horse should be transported to the clinic, given the location of the laceration and so as to ensure that the tendon sheath had not been damaged.

[48] In speaking to Dr Lovell, Ms Barton expressed her concerns as to whether the horse was a cryptorchid and asked Dr Lovell to take some more blood and to send it off for analysis. Ms Barton accepted, in cross-examination, that by that time she had already received some test results; though she said she had not yet had the opportunity to discuss the results.

[49] Dante was transported by Mr Sheridan to the Redlands Clinic where Dr Lovell treated Dante. Dante was able to be loaded on the float and walked off the float. Mr Sheridan said at that time Dante was not showing any signs of lameness. Upon assessment at the clinic, Dr Lovell described him as "moderately lame".[10] Dr Lovell said, he would have rated him 2 out of 5. In cross-examination he accepted that at the time he had noted a lameness of 3 out of 5.

[50] Dante was heavily sedated, anti-inflammatory medication and pain killers were administered, the wound was stitched, bandaged and immobilised in a cast. Dr Lovell said it was a serious laceration, though he also described it as a "typical cut".[11] He said they happen all the time. Dante was kept in a stable at the clinic.

[51] Dr Lovell's evidence was that the morning after the injury, there was no remaining sign of lameness.

[52] Ms Barton wrote to the Bridgemans via Facebook message on 14 May 2016 at 7:42 pm, following receipt of the blood test results. Ms Barton informed the Bridgemans that Dante was a cryptorchid. She explained to the Bridgemans his unusual behaviours, the fact that Dante had been assessed by a horse trainer who specialises in equine behaviour and the fact that hormonal tests had been conducted on him and he had been given the results. In the Facebook message, Ms Barton said:

"I am very sad, as you know from many discussions with you before I bought him, my 'dream horse' was a small Donatraum Gelding, which is what we believed Dante was. Unfortunately this is not that case. I find this quite ironic given I had actually asked you the question in jest prior to purchase if you were sure the vet had removed both testicles, but it appears the gelding was not complete as you had thought. It is unfortunate that Dante does not match the description of the horse that I thought I was purchasing."

[53] Whilst the Facebook message is consistent with Ms Barton's reliance on the representation that Dante was a gelding, the message was written after the purchase was completed and, as evident from Ms Barton's evidence was written with the assistance of her lawyers. The Facebook message cannot be used to bolster her evidence of reliance.

[54] Ms Barton concluded the Facebook message, "I would like to kindly request a return of the horse and refund of the purchase price given the horse is not a gelding as we had thought."

[55] There was an exchange of messages that evening but, by a message sent at 9:36 pm, the Bridgemans wrote back to Ms Barton saying: "Yes of course bring him back for a refund. Is a bank transfer ok or do you want it in cash?"

[56] In the messages sent on 14 May 2016, Ms Barton did not mention the injury which Dante had sustained on 9 May 2016. When asked in cross-examination, she said that she did not mention it because she had been told by Dr Lovell that Dante would make a complete recovery and it was not relevant to the horse not being castrated properly. In cross-examination, it was put to Ms Barton that she was intentionally deceptive. Ms Barton responded that she was acting on advice that she had received.

[57] By Facebook message dated 16 May 2016, Ms Barton notified the Bridgemans of the injury sustained by Dante to his left fore-pastern while at the trainer's property. She said:

"It's not a bad cut, and I've had Redlands assess it to be sure nothing important could have been damaged, but it's in an area that comes under tension when he walks. I think it will heal optimally if I can keep him confined and the cut wrapped in the initial stages, so if it's okay with you I would prefer to keep him for another week or so until it's healing well before returning him, Not really what we needed, but I want to do the best thing by him."

[58] The Bridgemans responded on 17 May 2016, asking some further questions. In response, Ms Barton said, "...the injury happened last week while at the trainers (after the hormone tests were done and while I was waiting for feedback and advice)." In the message, Ms Barton said, "Prognosis is excellent. Worst case scenario is a small scar, which is what I'm trying to minimise." She said that the Bridgemans were welcome to go and visit Dante at Redlands Clinic.

[59] Mr Bridgeman visited Dante on 18 May 2016 at the Redlands Clinic. Ms Barton had told Dr Lovell that the Bridgemans were coming for a visit and she said that he had "full disclosure to discuss the case with them."[12]

[60] Mr Bridgeman spoke to Dr Lovell. Mr Bridgeman created typed written notes of his visit which were admitted by consent. The notes record:

"When questioned if Dante would be fit for the purpose of dressage or show jumping after recovering from the injury. His reply was that Dante would make a full recovery and be sound to compete as a dressage or show jumping horse."

"[Dr Lovell] suggested that there was a 95% chance Dante would make a full recovery but reserved making a prognosis until the cast was removed on Monday 23rd May. He did also make comment [that] he was 99 to 100% sure the horse would make a full recovery but avoided being confident as it may not be the case. He also believed his treatment strategy was the best for Dante's full recovery."

[62] In oral evidence under cross-examination, Dr Lovell said: "Well, I was very upbeat ... the way this horse was progressing, I would be very optimistic that he would do well."[13] He was asked whether he had a discussion with Mr Bridgeman as to whether the injury would likely affect Dante's use for show jumping or dressage. While he said he could not remember back then, he could recall that Mr Bridgeman had come while Dante still had the cast on. But he said he would have said that he would be very confident that the horse would return to full function. Dr Lovell explained in his evidence that when he was referring to a return to full function, that included whatever you wanted to do with the horse.

[63] The results of the oestrone sulphate test requested by Dr Lovell were obtained on 19 May 2016. Ms Barton sent a Facebook message to the Bridgemans on that day commenting further on the injury to the horse and providing the oestrone sulphate results. In the message, she said, "Geldings are less than 50 units (ng/ml, I think, the report was meant to be emailed to me this morning and I still don't have it). Dante's is well over 200 units (I think they said 223)." Ms Barton said, "This test also agrees with the other two tests (AMH and testosterone) that testicular tissue, either one or both, has been left behind."

[64] The cast on Dante was removed on 23 May 2016. Dr Lovell confirmed that the Bridgemans did not attend to see Dante after the cast had been removed and he said, he did not recall speaking to the Bridgemans again.

[65] On 24 May 2016, the Bridgemans sent an email to Ms Barton and said, "...we have been advised by our veterinarian and our consulting veterinarian to not proceed with the return of a damaged horse." The Bridgemans said they had discussed their obligations with the Queensland Office of Fair Trading and, it was said, "On these advices we are no longer prepared to accept the return of Dante and will not be providing a refund." On the issue of the failed castration, it was said, "...the Queensland Office of Fair Trading have advised that the owner can [pursue] the veterinarian who provided the failed service. To that end we are attaching the invoice from Dr Scantlebury, so that you as the owner can seek a remedy for the failed castration."

[66] Ms Barton did not respond to that message. She said she ceased direct communication with the Bridgemans at that point and communicated entirely through her lawyer. On the basis of the Bridgemans' message, Ms Barton said she could not deliver Dante back to the Bridgemans so Dante remained in the stable at the Redlands Clinic. Ms Barton said she could not bring Dante to her property. Her evidence was that, as a cryptorchid, Dante had to be housed as a stallion and she did not have the facilities to do that.

[67] After leaving Redlands Clinic, Dante was taken to the UQ Vets, Gatton for a valuation of his cryptorchidism and further hormonal tests and subsequently moved to stallion agistment at WestVets and later to Team VanDenBerge at Beaudesert.

[68] Dr Lovell's evidence was that as Dante was a cryptorchid, he would "behave exactly like a stallion."[14] Dr Lovell said that "by nature a stallion is much more aggressive, is a leader"[15] and they will seek other horses all the time. Dr Lovell said cryptorchids can often be more aggressive than a regular stallion and nastier animals to deal with than regular stallions. He said there is no scientific basis for that but confirmed they can turn into very difficult animals to deal with. In cross-examination, he said this happens as they get older, as they mature.

[69] Dr Lovell confirmed that he had observed stallion-like behaviours in Dante. He referred to possession, separation anxiety and seeking out other horses all the time. He said it was noted that if his mate, in the stall next to him, was taken away from him, he would get upset. He described it as behaviour that was just much more re-active to other horses.

[70] Dr Lovell said that, while Dante was a pleasure to handle at the clinic, they took particular caution when bringing him out of the stable to ensure that there were not other horses around; that is, no possibility of him engaging with another horse.

[71] In his report dated 25 May 2016, Dr Lovell referred to the blood samples for Dante which had been submitted for oestrone sulphate analysis, and commented that they, "returned with very high levels". Dr Lovell said, "This confirms the presence of testicular tissue and the horse undoubtedly is a cryptorchid". In his report, Dr Lovell stated that correction would require surgery. Dr Lovell stated, "Palpation of the scrotal area revealed no signs of testicle or cords and so the testicle is almost certainly abdominal". The report then stated:

"Castration as a young foal introduces some issues for the surgery as we will probably have to investigate both sides and it can be difficult to locate ligaments or landmarks that usually lead us to the testicle. Nevertheless, I would be optimistic for successful surgery and removal of the testicle (or testicles)."

[72] In giving oral evidence, Dr Lovell explained that in performing the procedure of castration in young horses, you can grab the epididymis, emasculate it and think you have removed the testicle but the testicle is still inside. Dr Lovell said, "I've never made the mistake but I've dealt with quite a number of horses over the years where practitioners have removed the epididymis and left the testicle."[16]

[73] Dr Lovell described the corrective procedure as being major surgery, but confirmed that he would offer "excellent prognosis for surgery".[17] Dr Lovell explained what can make the surgery more difficult is the fact that the anatomy has already been destroyed, when the first procedure was undertaken. Dr Lovell said the base range for the standard procedure at his clinic was between $1,500 and $1,800, and it could go up to $2,500, without GST. The horse would be required to be confined for up to three months.

[74] Dr Lovell said that the stallion-like behaviours would continue until the corrective surgery was performed. Dr Lovell said that after the surgery is performed it can take three to twelve months for the horse to loose direct effects of the testosterone. He said that the behavioural traits that the horse had learnt would remain for quite a while as well. During that period, Dr Lovell said that the horse would still need specialised housing.

[75] Ms Barton accepted that Dr Lovell had advised her that the horse should undergo the procedure to correct the cryptorchidism. She said she did not reject that advice but, as she was trying to return the horse, she had been told that once she performed the procedure on the horse, she would have altered it significantly from what she purchased.

[76] In answering questions in crossexamination, Dr Lovell said that there was obviously some dispute about ownership of the horse, and he said, "I thought that she had to sort that out. So I didn't encourage her to do it."[18]

[77] Following the injury, Dante remained under the care of Dr Lovell from May 2016 until December 2016. Dante was kept bandaged until mid-July 2016. Dr Lovell said that he was being cautious in keeping the wound bandaged and accepted dressing changes could have been managed outside the clinic. He said that the original plan had been that Dante be discharged at the end of May 2016.

[78] In his report dated 25 May 2016, two days after the removal of the cast, Dr Lovell stated, "This wound has completely healed and I am very confident that there will be no long term consequences."

[79] Dr Lovell said there was a time, about six to eight weeks after the injury, when he became a little concerned about a small scab which started to form, no greater than half the size of a one cent coin. Dr Lovell considered the scab could be associated with a bone sequestrum which, he said, could be corrected by surgery; though he did not recommend that as there was no clinical signs or effects. He said x-rays confirmed, in Dr Lovell's opinion, there was a bone reaction. He said, they are "very, very common, and we deal with them all day every day."[19]

[80] Dr Lovell considered that the condition would self-cure. In cross-examination, he agreed that nearly seven months after, "there were still sequelae of the 9 May incident which were continuing",[20] but said it was being managed and would self-cure. He said the scab was only present very intermittently; so you would look at it some days and there would be nothing.

[81] He said at no point was there any continuing lameness. He said they had no special requirements for looking after Dante at the clinic, other than keeping him as a stallion.

[82] Dr Fraser, a registered specialist in veterinary reproduction employed at the UQ Vets, provided an expert report dated 7 June 2017 regarding an examination she conducted of Dante in February 2017. Dr Fraser conducted a behavioural assessment of Dante, performed an ultrasound examination and submitted a blood sample for analysis. Dante was allowed to interact with an oestrus mare over a fence barrier whilst confined to a small paddock and was observed to be immediately highly interested in the mare, vocalizing, displaying a flehmen response and achieving an erection. Dr Fraser said that Dante had clearly exhibited stallionlike behaviours. Dr Fraser said that, in her experience, it would be very unusual for a gelding to display that degree of stallion-like behaviour, particularly achieving an erection.

[83] In her report, Dr Fraser stated that, on physical examination, Dante appeared to be a gelding, as there was no evidence of testes descended into the scrotum or palpable in the inguinal region. Dr Fraser refers to a transabdominal ultrasound being performed to identify the presence of testicular tissue in the inguinal region and abdomen but that no testicular tissue was identified. Transrectal palpation and then ultrasonography demonstrated that the architecture of a structure found being consistent with a testis, which Dr Fraser considered was a complete testis. A similar structure was palpable on the right hand side of the abdomen but it was not possible to obtain any images of that structure.

[84] In her report, Dr Fraser stated, "The results of the transrectal ultrasound indicate the presence of testicular tissue, thus Dante is not a gelding." Further, Dr Fraser said the results of the blood tests (oestrone sulfate and AMH), which were provided to Dr Fraser as part of her instructions, indicated that Dante was not a gelding. Dr Fraser said that the repeat hormonal assays (AMH and hCG stimulation test) performed by UQ Vets also indicated that Dante was not a gelding. She concluded in her report, "Therefore, all currently available endocrine diagnostic tests for the diagnosis of cryptorchidism indicate the presence of testicular tissue in this horse."

[85] In cross-examination, Dr Fraser confirmed that the presence of testicular tissue meant that the horse was not a gelding. She said, a gelding is a castrated male horse. She said the word, cryptorchid, means "hidden testes".[21] When asked whether the horse had been castrated, she said:

"Well, unfortunately, since histopathology was not performed on the tissue that was originally removed from this horse, we have no idea if testicles were ...removed at all."[22]

[86] When questioned as to whether the fact that a procedure was performed meant that it could be said the horse had been castrated, Dr Fraser said:

"In the extremely unlikely event that a horse had been born with four testicles and someone had removed the two descended ones, then yes, it would be reasonable to assume that the horse had been castrated but I can't stress enough how absolutely unlikely that is actually to occur."[23]

[87] In her report, Dr Fraser was asked to comment on the differences between stallions and geldings. Dr Fraser referred to stallions being innately highly alert to their surroundings, seeking mares and looking for potential threats. Dr Fraser commented that aggressive inter-male behaviours can range from playful, sparring in nature to serious aggression. She said, "Aggressive encounters typically occur because the stallion is trying to protect or maintain the mares he considers to be part of his harem."

[88] Dr Fraser said there was no scientific evidence to document any difference in proneness to injury between geldings and stallions. Dr Fraser said that generally stallions are housed separately and the fencing is typically higher, up to two meters, to reduce the risk of jumping out in search of mares. She said that as the majority of geldings are not as prone to aggression towards other horses, they can be housed in groups of mixed sex or with other geldings. Given the characteristics observed in Dante, Dr Fraser said that, whilst she did not consider it likely Dante was still fertile, there was still a risk of injury to him and the mare, if he attempted to breed with a mare and a risk of damage to the mare's reproductive tract.

[89] Mr Rich was called by Ms Barton to give valuation evidence. He had been involved in valuing horses for 12 years and had owned horses for 45 years.

[90] In his report dated 25 July 2018, Mr Rich expressed the view that the difficulty in valuing Dante was that there was no market for cryptorchid horses in Australia and no public sales data on them. Mr Rich considered that if cyrtorchidism was discovered in a male horse, its future will largely depend on its quality, general demeanour and background (including pedigree), cost to breed and natural ability. He stated that surgery might be elected for the better horses, but that others will often find their way into horse auctions and be sold for little money as either rejects or horse meat.

[91] In that report, he stated the Fair Market Value (FMV) for Dante as at the date of purchase with full knowledge of his cryptorchidism was $5500 and Dante's current FMV absent any injury was $3500 and with the scar caused by the injury was $2500. In an addendum report dated 13 February 2019, relying on recent 'still' images and a video of Dante, the FMV post injury was revised to $3000.

[92] In cross-examination, Mr Rich admitted that there is no public sales data available for horses of any type, not just cryptorchid horses. In correcting that statement, Mr Rich said that he relied on his own historical data that he had collected over 12 years of valuing. He confirmed he had no data for cryptochid horses on the basis that people would not knowingly purchase such a horse. Mr Rich agreed that that it was possible that cryptorchid horses made up 1% of the horse population.

[93] The amended statement of claim filed 16 May 2018 claimed various relief under what the pleading said was "the Australian Consumer Law (the ACL)".

[94] It was expressly pleaded that the Bridgemans "carried on business in partnership". Importantly, the amended statement of claim said they "carried on a business" within the meaning of s 4 of the Competition and Consumer Act 2010 (Cth) (the CCA) and were a "supplier" within the meaning of s 4 and s 4C of the CCA and s 2 of the ACL. Those three facts were admitted without qualification in the second further amended defence filed 29 May 2018.

[95] After citing the advertisement and promotion of the horse, inspection of the horse by Ms Barton and subsequent purchase by Ms Barton, it was pleaded that on or about 14 May 2016, Ms Barton notified the Bridgemans of her election to reject the goods pursuant to s 259 of the ACL and to obtain a refund pursuant to s 263(4) of the ACL. In the second further amended defence, the Bridgemans admit the notification of the rejection, but deny it was a valid election pursuant to s 263(6) because of the exclusion provided by s 262(c) of the ACL.

[96] A similar reliance upon s 263(6) was made in response to the allegation that, upon the notification, property in the horse had revested in the Bridgemans.

[97] Admissions relevant to the statutory claim for misleading or deceptive conduct were made in the defence; namely that the horse was "goods" and "consumer goods" and Ms Barton acquired the horse as a "consumer" within the meaning of the ACL. Contraventions of s 18 and s 29(1)(a) of the ACL were denied, but on the basis that the horse had been castrated by Mr Scantlebury and the Bridgemans had no reason to believe the horse was not a gelding.

[98] Importantly, the second further amended defence contains admissions that there were statutory guarantees under s 54, s 56 and s 59 of the ACL that the horse was of acceptable quality, would correspond with the description by which the horse was supplied and would comply with express warranties given by the Bridgemans. All of those admissions were unqualified. A breach of those guarantees was denied as a matter of fact only.

[99] On the morning of the trial, leave was sought to file a third further amended defence. That request was not opposed and leave was granted.

[100] None of the admissions as to the application of the ACL were withdrawn. Neither was any parties' case pursued on the basis that it did not apply. Indeed, the third further amended defence reinforced the application of the ACL by expanding upon the validity of the election to reject by reason of s 263(3), mainly on the grounds that the goods were damaged, and inserting a new defence under s 263 of the ACL that Ms Barton had failed to return the horse to the defendant.

[101] The issues in dispute were accordingly confined to a factual dispute as to whether there were the five breaches of the ACL alleged.

[102] That was the position until the closing address of counsel for the Bridgemans. At that time, Mr Forde submitted, for the first time, that Ms Barton's claim must be dismissed because the ACL does not apply to the Bridgemans because it does not apply to individuals, like the Bridgemans.

[103] The submission was made in reliance on s 131 of the CCA which provided that the ACL applied only to corporations. Counsel conceded that similar conduct of individuals is covered, but only as part of the Fair Trading Act 1989 (Qld) (the FTA).

[104] Sections 15 and 16 of the FTA provide as follows:

(a) schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth; and

(b) the regulations under section 139G of that Act.

(1) The Australian Consumer Law text, as in force from time to time -

(b) as so applying may be referred to as the Australian Consumer Law (Queensland); and

(2) This section has effect subject to sections 17, 18 and 19."

[105] In short, the submission was that if Ms Barton wished to rely upon the ACL she should have described it as the "Australian Consumer Law (Queensland)". That submission emphasises paragraph (b) of sub-section (1) of s 16. In doing so, however, it treats the word "may" as mandatory, or at least more than a matter of discretion or permission. Moreover, it does not give any effect to paragraph (a) which provides that the ACL text applies as a law of this jurisdiction.

[106] It is true that sub-paragraph (c) makes the ACL part of the FTA, but that does not, in my view, derogate from the important effect of sub-paragraph (a) which is to make the ACL a law of this jurisdiction.

[107] Sections 15 and 16 were introduced into the FTA by the Fair Trading (Australian Consumer Law) Amendment Act 2010 (Qld). The explanatory notes to the Bill explain that the amendments gave effect to an agreement at the Council of Australian Governments that all jurisdictions would adopt the ACL as a single instrument of generic consumer protection legislation. The reform, said to be largely based on the Productivity Commissions' Review of Australian Consumer Policy Framework, was designed to provide a nationally consistent and enhanced consumer law for all Australians. Similar statements appeared in the Second Reading Speech made on 31 August 2010. The explanatory note described s 16 as the operative clause which "applies the Australian Consumer Law text as the law of Queensland."

[108] A court is entitled to have regard to these extrinsic materials if the provision of an act is ambiguous or obscure, to provide an interpretation of it or, if the ordinary meaning of the provision leads to a result that is manifestly absurd or unreasonable, to produce an interpretation of it that avoids that result; see s 14B of the Acts Interpretation Act (Qld) (Queensland Act). This provision complements the requirement that in the interpretation of an act, the interpretation that will best achieve the purpose of the act is to be preferred to any other interpretation: s 14A of the Queensland Act.

[109] These provisions of the Queensland Act do not apply to the Australian Consumer Law (Queensland) by virtue of s 19 of the FTA. Section 19 provides that the Acts Interpretation Act 1901 (Cth) (Commonwealth Act) applies to the Australian Consumer Law (Queensland). Section 19 does not say that the Commonwealth Act, however, applies to the interpretation of the FTA. If necessary, resort could therefore be had by reason of the Queensland Act to these extrinsic materials in the interpretation of s 16.

[110] Alternatively, resort might be made to the common law regarding statutory construction; as explained in such cases as Project Blue Sky v ABA[24] and CIC Insurance Ltd v Bankstown Football Club Ltd.[25] (The Commonwealth Act contains similar, though slightly differently worded, provisions to the Queensland Act (s 15AA and s 15AB), but the reference to extrinsic material in the Commonwealth Act, as one would expect, is limited to the parliament of the Commonwealth.)

[111] The language, however, in my view is clear and unambiguous. Section 16 has the effect of making the ACL part of the law of Queensland. The ACL makes a "person", not just a corporation, liable for various contraventions of its provisions. Whilst it might have been preferable to have described the route by which this is achieved, it was sufficient for Ms Barton in this case to plead reliance upon the ACL.

[112] That it was sufficient for the statement of claim to refer only to the ACL for both parties to be clear about the legal issues in dispute is clear from an examination of the pleadings. Indeed, this examination reveals that the submission made at the end of the trial by the Bridgemans was little more than a pleading point.

[113] No reference was made in the statement of claim to the FTA or the means by which the ACL was able to be adopted as a cause of action against the Bridgemans. Equally no allegation was ever made in the defence that the ACL did not apply, or that it should have been described as the Australian Consumer Law (Queensland).

[114] No application was ever threatened or made for summary judgment or to strike out the statement of claim on the basis that Ms Barton could not possibly succeed in a claim based on the ACL.

[115] This was clearly because both parties proceeded on the basis that, by whatever route was taken, the ACL founded a basis for the claim.

[116] The Bridgemans argued that the ACL did not apply and that they could not be estopped from relying upon an erroneous view of the law that it did apply; referring to Glenco Manufacturing Pty Ltd v Ferrari[26] and Roberts v Australia and New Zealand Banking Group Limited.[27] Those were cases where the plaintiff and the defendant proceeded upon false legal assumptions as to the validity of certain conduct under the relevant statutes under consideration.

[117] This, however, is not a case where the parties have proceeded on the basis of an erroneous view of the law. This is simply a case where both parties proceeded on the basis that the law was sufficiently pleaded.

[118] It was argued that the admissions made in the defence relating to the ACL were admissions as to law and that therefore they did not have the effect of admissions as to fact. However, the facts upon which Ms Barton relied to found the allegations "carried on business", "supplier", "consumer", "goods" and "trade and commerce", were all admitted. These terms have particular meanings under the ACL. Those meanings are probably more expansive than the meanings given to those words at common law. Although it is true that a court is not bound by erroneous admissions of law, at no time did the Bridgemans seek to withdraw the admissions. Admissions, whether of fact or law, enable the court to proceed on the basis that those matters were not in issue: Ms Barton was a consumer, the Bridgemans carried on a business and were a supplier, the horse was a good and the transaction was in trade or commerce within the meaning of the ACL.

[119] The admissions also raise another issue. If the ACL had no application, the fact that Ms Barton was a consumer, the horse was a good or that the events happened in trade or commerce had no relevance and should not have been alleged or admitted. The defence took no point that any of these allegations was irrelevant.

[120] In addition, as mentioned, the defence contained positive admissions that the three guarantees applied. Those guarantees apply if a person supplies, in trade or commerce, goods to the consumer in the circumstances set out in those guarantees. If the allegations were not understood by the Bridgemans to apply to them, there would be no basis for making those admissions.

[121] There would also be no basis for the defence to advance a positive case regarding the ability of Ms Barton to return the goods; either in the second further amended defence or the defence filed at the commencement of the trial. Importantly, if the ACL was not understood to apply, there would be no basis for the positive (albeit, as closer examination later revealed, erroneous) claim in the second further amended defence that the Bridgemans' liability was limited under the proportionate liability provisions of the CCA.

[122] In any event, the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) not only require pleadings to contain the facts upon which a party relies, but also to "state specifically any matter that if not stated specifically may take another party by surprise"; see rule 149(1)(c). Rule 150(4)(c) is in similar terms. Those rules are not limited to statements of fact. In addition, rule 150(4)(a) requires a party to specifically plead a matter that the party alleges makes a claim not maintainable. That rule is equally not limited to facts. If the Bridgemans truly considered that the case was not maintainable as a matter of law (not fact), there was clear non-compliance with these rules.

[123] Rule 5 requires the court to apply the rules with the objective of facilitating the just and expeditious resolution of the real issues and the parties to proceed in an expeditious way. The failure of the Bridgemans to plead that the ACL only applied by virtue of the FTA, or did not apply without it, if either were required, is also inconsistent with this rule and the modern approach to litigation.

[124] It is clear that the submission made at the end of the trial that Ms Barton could not succeed in her claim because of the nature of her pleaded case took Ms Barton and her lawyers by surprise. If the allegation had been made earlier and no doubt, equally consistent with rule 5, it could have been quite simply solved by an amendment.

[125] The Bridgemans rely in response to these matters upon a letter sent by the solicitors for the Bridgemans to the solicitors for Ms Barton on 5 February 2019 (seven business days before the trial was due to begin). In that letter, the solicitors for the Bridgemans forecasted an amendment to their pleading and raised the issue of the FTA. Because of the very subtle nature of the letter it is necessary to quote the relevant part:

"Upon further reviewing the pleadings in anticipation of the trial, we note that your client has not pleaded any reference to the Fair Trading Act 1989 (Qld). We note that your client has sought relief pursuant to various sections of the Australian Consumer Law, which is schedule 2 of the Competition and Consumer Act 2010 (Cth). We further note that our clients are individuals and not corporations. It would therefore appear to us that the Competition and Consumer Act 2010 (Cth) and Schedule 2 to that Act being the Australian Consumer Law, does not apply to conduct by our clients as individuals.

In order to obtain the relief that your clients seek, it would appear to us that your clients will need to rely upon s 16 Fair Trading Act 1989 (Qld) so as to have the Australian Consumer Law text apply as part of the Fair-Trading Act 1989 (Qld) and therefore, be applicable to the conduct of our clients.

In the circumstances, we request that you advise us as to whether your clients intend to rely upon the provisions of the Fair Trading Act.

If you do not, then we reserve our clients rights in respect of this issue and in particular, the fact that the Competition and Consumer Act 2010 (Cth) does not apply to our clients."

[126] It will be noted that the letter says that "the Australian Consumer Law does not apply". It does not say that the plaintiff cannot succeed on its pleaded claim. The draft amended defence enclosed with the letter did not allege that either. Indeed, it contained the same admissions and positive cases based upon the ACL contained in their existing defence. Furthermore, that defence still relied upon the proportionate liability provisions of the CCA which applied to claims under s 236 of the ACL; see s 87CB.

[127] The only addition in the draft amended defence was to add a defence that the defendant's liability was also limited by the proportionate liability provisions of the Civil Liability Act 2003 (Qld) (Civil Liability Act) which, by s 28 of the Civil Liability Act, applied to claims under s 18 of the ACL (Queensland).

[128] The only real issue raised by the letter was that if Ms Barton proposed to rely upon the FTA the Bridgemans proposed to amend to include, as an alternative, reference to the proportionate liability provisions of the Civil Liability Act.

[129] It was perhaps unsurprising that the solicitors for Ms Barton in these circumstances, and bearing in mind the purpose of the amendments made across Australia in 2010 to Australian consumer law, evidently missed the point being made and simply responded:

"Our client does not intend to amend her Amended Statement of Claim in the manner you suggest. In those circumstances, the proposed amendments to your clients' Defence are unnecessary and the Plaintiff does not consent to them."

[130] In their letter dated 5 February 2019, the solicitors for the Bridgemans had stated that their clients reserved their rights, but they took no steps to advance the issue, until as stated earlier, in closing submissions at the end of the trial.

[131] In my view, correspondence is not a substitute for pleadings. The Bridgemans cannot have it both ways: meeting Ms Barton's case in documents filed in court on the basis that it properly pleaded the ACL and the claim was maintainable, and then contending at the end of a trial that it had by subtle correspondence between the parties stated that the claim was not maintainable.

[132] The conduct of the Bridgemans in not properly stating their position in their pleadings or by correspondence was compounded by their conduct (through their lawyers) at the start of the trial.

[133] No mention of the issue was raised when the amendments were sought to be made to the defence on the morning of the trial. Counsel simply stated:

"This has come about as a result of the plaintiffs confirming that they're not relying on the Fair Trading Act. They're relying solely on the...Competition and Consumer Act and, therefore, we're withdrawing the proportion[ate] liability arguments - claims. They're no longer pursued."[28]

[134] By the amendment, the Bridgemans withdrew any reliance upon the proportionate liability provisions of the CCA. This was not significant because, as counsel for the Bridgemans submitted at the end of the trial, those provisions only applied to a claim for damages under s 236 of the ACL, and no damages were claimed in reliance upon that section. The claim made by Ms Barton was only made in reliance upon s 237, which contains more extensive provisions for compensation and other orders than those available under s 236; which is solely concerned with damages for a contravention.

[135] The significant matter for present purposes is that the amended defence did not contain, as the foreshadowed one had, any reliance upon the proportionate liability provisions available under the Civil Liability Act. When the trial resumed for the purpose of hearing argument about the issue concerning the ACL, counsel for the Bridgemans stated that, as a consequence of the letter in reply from the solicitors for Ms Barton, the Bridgemans did not make this claim.

[136] It is unclear what the Bridgemans lost by reason of the absence of that claim.

[137] At one time the veterinarian, who performed the operation, was a party to the proceedings; having been made a third party by the Bridgemans. Those proceedings were discontinued on 1 June 2018. The basis or reasons for the discontinuance were not explained. Obviously, there were a number of possibilities; including that the Bridgemans agreed that the veterinarian had no case to answer or that some commercial monetary settlement occurred between the parties. If there was a negotiated settlement, it may have dealt with the possibility of future proceedings against the veterinarian by Ms Barton or the veterinarian co-operating with the Bridgemans in the proceedings.

[138] The responsibility of the veterinarian for the events that happened is unclear. There is no doubt that the horse underwent an operation. Ordinarily that fact may be of great significance in determining whether a statement based upon that operation was misleading or deceptive. In this case, however, there is evidence that certainly Mr Bridgeman knew that the horse had certain characteristics that suggested he was not a gelding and there is also evidence that these types of operations are not always successful and that the only way to determine success is by blood tests. Against those facts, the Bridgemans made a number of unqualified representations that the horse was a gelding.

[139] The defence under the Civil Liability Act is available, as Mr Forde submitted, in relation to claims made under s 18 of the ACL (Queensland). The defence, however, is not available against a claim made by a consumer; see s 28(3)(b) of the Civil Liability Act. A "consumer" means an individual whose claim is based on rights relating to goods where the goods are being acquired for personal, domestic or household use or consumption; see s 29. The horse was acquired in the present case for the purposes of being ridden by Ms Barton in dressage events. No submissions were made on s 28(3)(b), but the Bridgemans had admitted in their defence that Ms Barton acquired the horse as a consumer within the meaning of s 3 of the ACL in that the horse was of a kind ordinarily acquired for personal, domestic or household use. In short, the defence may not have been applicable as a matter of law in any event.

[140] Leaving aside the question whether it was necessary to plead the FTA, or the ACL (Queensland), the obvious answer to the issue was for Ms Barton to be allowed to amend the statement of claim to make clear her reliance upon the ACL (Queensland), and for the Bridgemans, if they sought fit, to be allowed to amend to add a proportionate liability claim.

[141] When asked why Ms Barton should not be allowed to make the amendment at the end of trial, counsel for the Bridgemans responded that he would have to get instructions on whether the Bridgemans would reinsert the proportionate liability clauses, or call Dr Scantlebury and other witnesses, and submitted that there would be two more days of hearing, all over what could just be $10,000. He submitted that the amendment should not be allowed on that basis.

[142] Mr Forde also submitted that the response by the solicitors in their letter amounted to a tactical decision and that there will be a need for cross-examination of those who participated in that decision. Mr Forde did not state what tactical decision he alleged had been made or why.

[143] As it turned out, during argument, counsel for Ms Barton submitted that rather than Ms Barton being allowed to amend to change the reference from ACL to the ACL (Queensland) and, if the Bridgemans wished, for the Bridgemans to amend to re-enliven their proportionate liability case, Ms Barton would abandon the claim based on s 18; leaving in place the claims based on s 259 and s 29.

[144] This appeared to satisfy counsel for the Bridgemans; though unstated was the precise position that would prevail if I concluded that the ACL was not the law of Queensland applicable to individuals, and that the only legislation under which a plaintiff could proceed in the circumstances was the ACL (Queensland) and that the intended claim had not been properly pleaded.

[145] Presumably I was to proceed on the basis that, in the light of the concession and all the other circumstances, there was no need for Ms Barton to amend the statement of claim by pleading the route by which she was entitled to make a claim under s 259 and s 29. That has the advantage of being consistent with rule 5 and the submissions made on behalf of the Bridgemans, apparently accepted by Ms Barton, that further costs should not be incurred on the prosecution and defence of this case.

[146] Had a formal request for a formal amendment been made it would have been granted.

[147] In the result, I will proceed as apparently intended by the parties to consider whether the plaintiff has proved her case under s 259 of the ACL, and in the alternative s 18 and s 29.

[148] In referring to the facts, as previously noted, the Bridgemans' counsel submitted that Ms Barton was not a credible witness and her evidence should not be accepted unless supported by independent evidence. Mr Forde submitted that aspects of the evidence from Ms Barton was self-serving, non-responsive, absent of appropriate concessions, and some evidence of a hearsay nature was given by her, despite her being warned not to give that type of evidence.

[149] There were a few occasions when those criticisms could be justified. On the whole, however, Ms Barton gave her evidence in an honest and forthright way and there is nothing in her answers or her demeanour generally which would cause me to reject her evidence. Ms Barton appeared to be a lay witness doing her best to tell the truth and, in my view, did so.

[150] It is true that Ms Barton did not inform the Bridgemans at the time of her rejection of the horse that it had been injured, but she said that this was done on legal advice. I accept that evidence. In those circumstances, it would not be fair or reasonable to draw any adverse inferences.

[151] Finally, it was submitted that Ms Barton was driven by an improper motive causing her to wish to reject the horse. The Bridgemans submitted she had a difficult pregnancy and financial issues and suggested that it was this that led to her no longer wanting the horse. I do not accept that submission. I find that Ms Barton was acting on the basis that Dante was not a gelding and that she specifically wanted a horse that was a gelding.

[152] The result is that the attack on the credit of Ms Barton fails. This has the consequence that I accept Ms Barton relied on the representation that Dante was a gelding. The exchanges which occurred, particularly in cross-examination, clearly and expressly confirmed reliance.

[153] The primary claim is made under s 259 of the ACL. Section 259(1) provides:

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