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Walker v Dobinson QCATA 170
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Walker v Dobinson  QCATA 170
CHRISTOPHER SHAW WALKER
MICHAEL JAMES DOBINSON
18 December 2019
16 December 2019
Dr J R Forbes, Member
APPEAL – LEAVE TO APPEAL – PROVISION OF SERVICES TO CONSUMER – whether services provided with due care and skill – where competing opinions of acceptability of services – whether reasons for decision given – whether reasons adequate – where relevant evidence not considered – whether primary decision should be set aside – where matter remitted for rehearing
Competition and Consumer Act 2010 (Cth) Schedule 2 s 54, s 60
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 121
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Camden v Mackenzie  1 Qd R 39
Crystal Dawn Pty Ltd v Redruth Pty Ltd  QCA 373
Eagil Trust Co Ltd v Piggott-Brown  3 All ER 119
Sherman v Evans (1977) 138 CLR 563
Sourlos v Luv A Coffee Lismore Pty Ltd  NSWCA 203
Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
A contract for services
- This dispute concerns the refurbishment of a driveway on the property of Christopher Shaw Walker (`Walker’) at Robina in February 2019.
A matter of grouting – competing views
- Walker was originally dissatisfied with the quality of Dobinson’s paint work, but his major grievance arose when he (Walker) hosed the path down with `a normal garden hose’, whereupon the filling between the pavers, being nothing but sand topped by a coat of paint, promptly washed out.
- Compare and contrast Dobinson’s claim that his `special’ sand filling solidified even before it was painted over.
- It is Walker’s contention that sand was an inadequate filling, an unsatisfactory performance of Dobinson’s work, in that it should have been stabilised by mixing it with cement.
- On this point, Walker tendered a quotation by Gold Coast Spray Paving `GCSP’). That firm required $3,200 (including GST) to redo the job - a modest $400 more than Dobinson charged. This hardly supports Dobinson’s assertion that re-grouting the spaces between the pavers `would just be massive money’.
- The GCSP quotation reads in part:
Resurface driveway, remove sand from between pavers, pressure clean and re-grout with grouting cement mixture for a solid infill and coat with 2 coats of Everglaze tinted sealer.
- While the GCSP document cannot be described as a formal expert report, it is evidence, for whatever it may be worth, of the manner in which Dobinson – according to Walker - could and should have performed the service agreement. As Walker observed, both the GCSP quotation and another mentioned below that `they [had] to start again from scratch’.
- A second quotation tendered by Walker is from the firm of Concrete Doctor, dated 29 April 2019. It offers to `clean and seal existing concrete surface’ for $2,934.80.
- When a tribunal member put it to Dobinson that he did not seal the job properly the answer was evasive: `The job looked fantastic’. However, he was not further pressed on that point.
The appellant’s main point
- However, the tribunal’s reasons include no consideration of the GCSP document or the Concrete Doctor’s quotation (`the quotes’).
- The tribunal’s decision occupies one page of a transcript of 47 pages. It opens with a bland assurance that everything relevant was considered, and all else disregarded:
In giving our decision we may or may not mention all the evidence that has been put before the Tribunal. However, all of the evidence put before the Tribunal has been considered in reaching our decision.
- There follows an uncritical description of Dobinson’s technique: `[He] places the sand in, makes it smooth, and then paints the driveway’. Next, a recitation of section 54 of the Australian Consumer Law (`ACL’), although the present contract is for the provision of services, not the supply of goods.
- In the remaining 13 lines of the reasons it is held that:
[I]t is through [Walker’s] use of the power hose that the cracks in the pavers occurred ... we do not find any fault in the work of Mr Dobinson.
- There is no evidence that Walker was warned about hosing the pathway after the job was purportedly completed. It can hardly be suggested that it could never be hosed again. The likely result of a heavy rain shower was not considered.
The absence of reasons
- Signally, there is no indication that the quotes were `considered in reaching [the] decision’, although Walker clearly relied upon them in support of his case. Undoubtedly it was open to the tribunal, as judge of fact and credit, to prefer the evidence of an interested party to that of independent third parties, but only if it did so explicitly, with articulate and acceptable reasons for its preference. That was not done.
[Where] evidence is important or critical to the proper determination of the matter, and it not referred to ... an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it.
- The application for leave to appeal is allowed.
- The appeal is allowed.
- The subject decision of the tribunal is set aside.
- The matter is remitted for rehearing by a differently constituted tribunal.
Transcript of hearing 12 June 2019 (`T’) page 34 line 11.
T page 7 line 1 (Walker).
 T page 11 lines 44-45.
Initial application filed 1 May 2019 Part C.
T page 4 line 43.
T page 15 line 5.
T page 4 lines 35-37.
T page 41 line 17.
T page 10 lines 2-3.
 T page 15 lines 27-35.
 T page 38 lines 24-25.
Competition and Consumer Act 2010 (Cth) Schedule 2 s 60.
 T page 46 lines 1-5.
 T page 46 line 33.
 In Schedule 2 of the Competition and Consumer Act 2010 (Cth).
 See ACL s 60.
 T page 47 lines 6-7, 13.
 See again T page 38 lines 24-25.
Sherman v Evans (1977) 138 CLR 563 at 572; Eagil Trust Co Ltd v Piggott-Brown  3 All ER 119.
Sourlos v Luv A Coffee Lismore Pty Ltd  NSWCA 203.
Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816.
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443 per Meagher JA.
Crystal Dawn Pty Ltd v Redruth Pty Ltd  QCA 373; Camden v Mackenzie  1 Qd R 39.
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at ; QCAT Act s 121(4).
- Published Case Name:
Walker v Dobinson
- Shortened Case Name:
Walker v Dobinson
 QCATA 170
18 Dec 2019