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Walker v Dobinson[2019] QCATA 170

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Walker v Dobinson [2019] QCATA 170

PARTIES:

CHRISTOPHER SHAW WALKER

(applicant)

 

v

 

MICHAEL JAMES DOBINSON

(respondent)

APPLICATION NO/S:

APL155-19

ORIGINATING

APPLICATION NO/S:

Q313-19 Southport

MATTER TYPE:

Appeals

DELIVERED ON:

18 December 2019

HEARING DATE:

16 December 2019

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes,  Member

ORDERS:

  1. The application for leave to appeal is allowed.
  2. The appeal is allowed.
  3. The subject decision of the tribunal is set aside.
  4. The matter is remitted for rehearing by a differently constituted tribunal.

CATCHWORDS:

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 [2008] 1 Qd R 39

Crystal Dawn Pty Ltd v Redruth Pty Ltd [1998] QCA 373

Eagil Trust Co Ltd v Piggott-Brown [1985] 3 All ER 119

Sherman v Evans (1977) 138 CLR 563

Sourlos v Luv A Coffee Lismore Pty Ltd [2007] NSWCA 203

Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480

APPEARANCES &

REPRESENTATION:

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

  1. [1]
    This dispute concerns the refurbishment of a driveway on the property of Christopher Shaw Walker (`Walker’) at Robina in February 2019.
  2. [2]
    The driveway was at least 19 years old.[1] Cracks had opened between the worn paving blocks. Walker was anxious to have the paving repainted, and the cracks `sealed’[2] so as to prevent, or at least inhibit the growth of grass and weeds between the blocks.
  3. [3]
    For those purposes he engaged the services of the respondent Michael James Dobinson (`Dobinson’) for an agreed cash payment of $2,800, increased from $2.300, which Walker duly paid.[3] There was an additional $500 for Dobinson `to fill in and seal the gaps between the pavers’.[4]

A matter of grouting – competing views

  1. [4]
    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’[5], whereupon the filling between the pavers, being nothing but sand topped by a coat of paint, promptly washed out.
  2. [5]
    Compare and contrast Dobinson’s claim that his `special’ sand filling solidified even before it was painted over.[6]
  3. [6]
    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.[7]
  4. [7]
    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’.[8] 
  5. [8]
    The GCSP quotation reads in part:

Resurface driveway, remove sand from between pavers, pressure clean and re-grout with grouting cement mixture[9] for a solid infill and coat with 2 coats of Everglaze tinted sealer.

  1. [9]
    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’.[10]
  2. [10]
    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.
  3. [11]
    When a tribunal member put it to Dobinson that he did not seal the job properly the answer was evasive: `The job looked fantastic’.[11] However, he was not further pressed on that point.

The appellant’s main point

  1. [12]
    Walker submitted that `both of my quotes are saying that the job hasn’t been done correctly’,[12] in that Dobinson’s failure to mix cement with the sand used for grouting was a failure to render the agreed services with due care and skill.[13]
  2. [13]
    However, the tribunal’s reasons include no consideration of the GCSP document or the Concrete Doctor’s quotation (`the quotes’).
  3. [14]
    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.[14]

  1. [15]
    There follows an uncritical description of Dobinson’s technique: `[He] places the sand in, makes it smooth, and then paints the driveway’.[15] Next, a recitation of section 54 of the Australian Consumer Law (`ACL’),[16] although the present contract is for the provision of services, not the supply of goods.[17]
  2. [16]
    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.[18]

  1. [17]
    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

  1. [18]
    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.[19] 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.
  2. [19]
    Reasons should be expressed in an informative manner, especially when a judgment on the merits is made.[20] It is not acceptable to adopt uncritically the submissions of one party.[21] Reasons should be given for preferring one version to another, after an analysis of the competing evidence:[22]

[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.[23]

 Conclusion

  1. [20]
    Absence of reasons is an error of law[24], particularly where there is an express statutory duty[25] to provide them. In this instance the omission or inadequacy of reasons is of such significance that the decision cannot stand. It must be set aside.

ORDERS

  1. The application for leave to appeal is allowed.
  2. The appeal is allowed.
  3. The subject decision of the tribunal is set aside.
  4. The matter is remitted for rehearing by a differently constituted tribunal.

Footnotes

[1]Transcript of hearing 12 June 2019 (`T’) page 34 line 11.

[2]T page 7 line 1 (Walker).

[3] T page 11 lines 44-45.

[4]Initial application filed 1 May 2019 Part C.

[5]T page 4 line 43.

[6]T page 15 line 5.

[7]T page 4 lines 35-37.

[8]T page 41 line 17.

[9]Emphasis added.

[10]T page 10 lines 2-3.

[11]  T page 15 lines 27-35.

[12]  T page 38 lines 24-25.

[13]Competition and Consumer Act 2010 (Cth) Schedule 2 s 60.

[14]  T page 46 lines 1-5.

[15]  T page 46 line 33.

[16]  In Schedule 2 of the Competition and Consumer Act 2010 (Cth).

[17]  See ACL s 60.

[18]  T page 47 lines 6-7, 13.

[19]  See again T page 38 lines 24-25.

[20]Sherman v Evans (1977) 138 CLR 563 at 572; Eagil Trust Co Ltd v Piggott-Brown [1985] 3 All ER 119.

[21]Sourlos v Luv A Coffee Lismore Pty Ltd [2007] NSWCA 203.

[22]Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816.

[23]Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443 per Meagher JA.

[24]Crystal Dawn Pty Ltd v Redruth Pty Ltd [1998] QCA 373; Camden v Mackenzie [2008] 1 Qd R 39.

[25]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at [43]; QCAT Act s 121(4).

Close

Editorial Notes

  • Published Case Name:

    Walker v Dobinson

  • Shortened Case Name:

    Walker v Dobinson

  • MNC:

    [2019] QCATA 170

  • Court:

    QCATA

  • Judge(s):

    Forbes

  • Date:

    18 Dec 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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