Wizardry Kennels v Semtech Animal Breeding Services

3 Bearing in mind that I am not making any finding of facts in relation to the merits of the matter and that I have heard no oral evidence on oath and, obviously, no cross examination, the following is the factual background against which this jurisdictional argument arises.

4 Wizardry operates a business in Victoria, that business involving the breeding of racing greyhounds. In late 2005, (although the Further and Better Particulars provided refer to 2006, which is clearly impossible) Wizardry purchased from one Scott Van Heurck ("Van Heurck") for the sum of $3,750.00 a straw of semen from a greyhound called "Token Prince". Van Heurck resides in Western Australia. The straw of semen was to be frozen and held at Applecross, which is also in Western Australia. Applecross was to prepare a special canister, and place the straw in it pending collection. The purpose of the canister is to maintain the frozen condition of the straw of semen. Following a recommendation, Wizardry contacted Semtech in relation to the freighting of the frozen straw from Western Australia to Victoria. The cost of this service was $184.80. This amount was paid by Semtech, which was reimbursed by Wizardry. Semtech confirmed that the transport company, Allied Express, would deliver the frozen straw to the Sandown Veterinary Clinic in Melbourne. That delivery was effected. Sandown Veterinary Clinic advised Wizardry that the semen had arrived in a defrosted condition and thus was unable to be used. Applecross claims that the canister in which the straw of semen was contained was in perfect condition when picked up from it, and must have been damaged in transit. Semtech alleges that the canister must have been already damaged or not properly prepared when it was picked up from Applecross, and the defrosting was not its fault. Wizardry arranged for its bitch to be impregnated by another stud dog in Victoria, and ultimately paid for this by providing to the owner of that dog three of the six puppies which were the product of the impregnation. Wizardry is claiming the loss of the value of those puppies; the replacement cost of a straw of semen from Token Prince, which straw has now increased in value; the cost of transportation of the straw from Western Australia; and the cost associated with the issuing of this application. Whether these various items can be recovered as claimed need not concern us, although I can imagine that, should it get to the point, some of the various items claimed may be productive of considerable argument. Furthermore, the actual arrangements in relation to the impregnation of Wizardry's bitch, and by the semen of which particular stud dog, were more complicated than the simple scenario which has just been described, but the details are not of concern for the purposes of the present argument.

5 Applecross relied upon two affidavits, one being sworn by Stephen Metcalfe, a veterinary surgeon employed by Applecross and the other by Clare Pether, a veterinary nurse also so employed. As discussed during the hearing, the dates contained in the affidavit of Ms Pether may well be incorrect (other documents would seem to suggest that the conversations to which she refers in fact took place one week later), but those possible errors have no bearing upon this ruling.

6 Both Wizardry and Semtech put before me a number of documents and statements, and indeed Mr Hamilton brought to the Tribunal and demonstrated canisters used for the transportation of straws of semen. While some of this material is of little or no relevance to the jurisdictional point to be determined, as discussed during the hearing and particularly when there is a mix of the legally represented and the self-represented, it is sometimes useful to allow people to have their say about some of the issues that lie at the heart of the principal dispute.

7 Further findings of fact which I make for the purposes of this ruling are these. Wizardry had purchased from Van Heurck, and had paid for, the semen prior to its collection and transportation from Applecross. In other words, Wizardry was the owner of the semen as at the time that it arrived at Applecross. I accept that there was no direct contact in any regard between Wizardry and Applecross. It was not alleged on behalf of Wizardry that, at least from a layman's point of view, any contract existed between Wizardry and Applecross. The hiring fee of the canister in which the semen was ultimately transported was paid by Van Heurck. It has not been suggested that Van Heurck paid this amount on behalf of Wizardry, or was subsequently reimbursed by Wizardry. Wizardry ultimately arranged for the return of this canister. Wizardry contacted Semtech in relation to the transportation of the canister from Applecross to Melbourne. Semtech organised this transportation with Allied Express, and paid for it (apparently Semtech has an account with Allied Express). Semtech was then reimbursed for this amount by Wizardry.

8 Mr Hamilton put forward a quite plausible argument as to why the fault lay with Applecross in its preparation of the canister, this being at least in part based upon a finding that, when it arrived, there was no evidence of liquid nitrogen being present in the canister. Of course, however plausible this explanation might be, it has not been tested. Mr Stirling, on behalf of Applecross, argued that the allegation of negligence on the part of his client, whether this be ultimately found to exist or not, did not bear upon the jurisdictional argument, but related to a possible cause of action not before the Tribunal and not falling within the purview of the Fair Trading Act 1999 ("the FTA").

9 The argument advanced by Mr Stirling on behalf of Applecross is twofold. Firstly, as has just been stated, it is alleged that no fair trading dispute exists between Wizardry and Applecross because Applecross is not a supplier within the meaning of ss.3 and 107 of the FTA. Secondly, it is submitted that proper service has not been and cannot be effected upon Applecross because of the provisions of the Service and Executive of Process Act 1992. It is submitted that the nature of the claim against Applecross filed by Wizardry does not fit within any of the categories set out in s.48 of the Service and Execution of Process Act.

10 Against that background I make the following ruling.

11 As I pointed out during the hearing, this Tribunal is a creature of statute and, whilst it has broad powers, its jurisdiction is limited to that conferred by the VCAT Act and by the enabling enactments, of which the FTA is one. VCAT may be a decision-making body not bound by the rules of evidence, and with a statutory obligation to conduct proceedings with as little formality and technicality as a proper consideration of matters permits. However, its essential jurisdiction must be established, and, however tempting it might be to determine what might appear to be a simple factual matter in a prompt, economical and hopefully fair way, that cannot be done if the jurisdiction so to do does not exist.

12 Whilst the relevant provisions of the FTA do not specifically require the existence of a contract, the nature of consumer and trader disputes may be such that a contract frequently, if not almost invariably, lies at the heart of the dispute. However, it is not spelt out as a statutory prerequisite. What is required pursuant to s.107 of the FTA is a dispute arising between a purchaser or possible purchaser of goods or services and a supplier or possible supplier of goods or services in relation to a supply or possible supply of goods or services. The terms "supplier" and "purchaser" are defined in s.3 of the FTA, and they basically mean the person who has or is to supply the goods or services and the person to whom they have been or are to be supplied. The terms "goods" and "services" are also defined in the same section, and such things as the performance of work and the provision of facilities are included. "Supply" is also defined, and includes the provision, granting or conferring of services.

13 Wizardry is claiming against Applecross pursuant to the provisions of the FTA. However, the material placed before me would indicate that there was no agreement, arrangement or understanding that Applecross would provide either goods or services to Wizardry. There was no contact or contract between the two. Wizardry purchased the semen from Van Heurck. Van Heurck paid the hire fee of the canister to Applecross and left the semen with it. Semtech, pursuant to an arrangement with Wizardry, engaged Allied Express which collected and transported the semen.

14 Given that Wizardry reimbursed Semtech in relation to the fee charged by Allied Express, it may be argued that Semtech, in engaging Allied Express, was acting as an agent of Wizardry. But does this take the matter any further as far as Applecross is concerned. Arguably, via an agency arrangement, Allied Express may have been providing the service of transportation of the canister to Wizardry. However, it is not against Allied Express that Wizardry is claiming. Applecross, at the request of and as a result of payment from Van Heurck, may have provided to him a canister that was not fitted for, or was ill-prepared for, the task which it was to perform. However, it is not Van Heurck that is claiming against Applecross. Nor is Wizardry alleging that Van Heurck was its agent in arranging the provision of the canister or that he was paying the hiring fee on its behalf. It might be argued that, as a term of the purchase of the semen, Van Heurck had an implicit obligation to supply it in a fit and proper condition to Wizardry. Wizardry is not claiming against Van Heurck. It may well be that, as asserted by Semtech, fault, in the form of negligence, can be sheeted home to Applecross. However, that would be fault on the part of what could be described as a third party. It is not fault on the part of a person who is to supply goods or services to the entity now making a claim against it.

15 This is a most unfortunate situation. As I pointed out from the bench, Wizardry may well have a claim which, pursuant to the provisions of the FTA, can be brought against Semtech. However, as we have already heard, Semtech will almost certainly deny responsibility and point to negligence on the part of Applecross. In the present application, Wizardry could fall between stools.

16 Mr Stirling stated, and I accept, that it gave him no great pleasure to be arguing a technical point in a matter which lent itself to a relatively simple determination on the merits. However, as I have stated, matters of jurisdiction cannot be ignored.

17 Unfortunately for it, Wizardry's claim against Applecross does not seem to me to be one which can be brought pursuant to the provisions of the FTA. Therefore, this Tribunal has no jurisdiction to hear it. In those circumstances, it is not necessary for me to move on to the arguments concerning the Service and Execution of Process Act, but it seems to me that Wizardry also faced difficulties there. If a contract between it and Applecross does not exist, s.48 of that Act may well have posed problems for Wizardry in relation to proper service upon Applecross. However, in the circumstances, a ruling in this regard is not required.

18 The end result is that I am of the view that this Tribunal does not possess the jurisdiction to hear the application which Wizardry has made against Applecross. Accordingly, that part of its claim is dismissed. In addition to reserving liberty to apply, I shall reserve the question of any ancillary orders that may be sought.

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Wizardry Kennels v Semtech Animal Breeding Services (Civil Claims) [2006] VCAT 2368 (24 November 2006)

Parties