Smith v Protheroe (t/a Angry Ant Asphalt
[2023] QCATA 95
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- Smith v Protheroe (t/a Angry Ant Asphalt[2023] QCATA 95
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Smith v Protheroe (t/a Angry Ant Asphalt[2023] QCATA 95
Smith v Protheroe (t/a Angry Ant Asphalt[2023] QCATA 95
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Smith v Protheroe (t/a Angry Ant Asphalt [2023] QCATA 95 |
PARTIES: | melissa smith (applicant) v GREG PROTHEROE (t/a Angry Ant Asphalt) (respondent) |
APPLICATION NO: | APL187-22 |
ORIGINATING APPLICATION NO: | MCDO269/21 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 19 July 2023 |
HEARING DATE: | 13 July 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes |
ORDERS: |
|
CATCHWORDS: | APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – CONSUMER DISPUTE – APPLICATION FOR ADMISSION OF FRESH EVIDENCE – where contract to renew asphalt on existing drive – where applicant instructed respondent not to lay new base – where respondent warned applicant that that method was unsatisfactory – where applicant adhered to instruction not to lay new base – where respondent as instructed applied asphalt without new base – where the work as so ordered was a failure – whether Australian Consumer Law guarantee applies – whether an exception to that legislation applies Competition and Competition and Consumer Act 2010 (Cth) Schedule 2 s 54, s 61, s 64 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142, s 143 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Fox v Percy (2003) 214 CLR 118 Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135 JM v QFG and KG [2000] 1 Qd R 373 Jones v Dunkel (1959) 100 CLR 298 Orr v Holmes (1948) 76 CLR 632 The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 |
APPEARANCES & REPRESENTATION: | The parties appeared in person. |
REASONS FOR DECISIONS
preliminary application: fresh evidence?
- [1]The applicant seeks leave to adduce additional evidence as ‘fresh’ evidence.[1]
- [2]The evidence in question is that of her husband Cameron Smith, who was not a witness at first instance.
- [3]As the applicant indicates, this application is in response to the following passage in the primary tribunal’s reasons for decision:
I accept the respondent’s evidence that he interacted primarily with Cameron during the performance of the work, and I do find that Cameron’s absence from the proceedings and the absence of a statement from him to be curious and unexplained. … I draw a Jones v Dunkel inference that Cameron’s evidence would not have assisted the respondent [sic – read ‘applicant’].
- [4]The decision of the High Court in Jones v Dunkel[2] is authority for this proposition: that if a party fails to call a material witness without due explanation the court may infer that the witness would not have assisted the party’s case.
- [5]As the person principally involved with the respondent Mr Smith was obviously a material witness.
- [6]The applicant offers this explanation for his absence:
The applicant is a consumer who is self-represented and did not understand the processes of the tribunal.
- [7]With due respect, that is not an acceptable explanation. One need not know one stanza of law or legal or legal procedure to be aware that a person who joined in, and in fact led negotiations with the respondent is an important witness.
- [8]But even more to the point are the rules governing claims of fresh evidence. By no means is every piece of evidence omitted at first instance ‘fresh’ in the present sense. In particular it must be shown that the material in question could not, with reasonable diligence, have been adduced at the time of the trial.[3] Here it is inconceivable that the applicant could not have identified her husband as a vital witness and called him at that time. The application to tender ‘fresh’ evidence is dismissed.
The application for leave to appeal
Introduction
- [9]In April 2020 Mr and Ms Smith[4] of Narangba were minded to repair the asphalt driveway to their residence.
- [10]On or about 29 April 2020 the Smiths obtained a quotation from the respondent Greg Protheroe (‘Protheroe’), trading as Angry Ant Asphalt, who advertised his business as specialising in asphalt repairs and the construction of asphalt driveways.
- [11]Materially, the Angry Ant quotation reads:
New driveway at … Burpengary $13,000 (ex GST)
Cut out front of shed at 100mm deep if needed
Lay 100mm of cbr roadbase Across whole driveway
Lay 30mm of ac10mm asphalt
Sub-total (ex GST) $13,000 GST $1,300 Total (inc GST) $14,300
A quest for economy – a departure from the quotation
- [12]The Smiths were disinclined to spend so much, and on 11 May 2020 (as the tribunal found[5]) they issued a notice reading:
Looking for someone to lay asphalt on an old driveway. Don’t need anything flash, just need it spread out and rolled.
- [13]Subsequently Protheroe reduced his price by $2,000 and just ‘spread [the asphalt] out and rolled’. But there was an important caveat. Protheroe warned the Smiths:
[W]hen we don’t do the road base we don’t warranty [sic] the top. We don’t warranty the asphalt and, in this case, we didn’t do the road base … The quote for the road base was 13,000. We invoiced her for 11,000 …[6]
We … had another conversation on the phone about – can we put it over the top of the existing [indistinct] I said we can, but there’s no warranty on anything we don’t base.[7]
- [14]It is common ground that the driveway failed soon after the new surface was applied.[8] The tribunal rejected the Smiths’ claim that they were unaware of the omission of a new bed of gravel from the work programme:
[T]his matter turns on whether the tribunal accepts the respondent’s contention that the applicant instructed him to lay asphalt over the existing road base, rather than to dig out the existing road base and apply new road base, contrary to the respondent’s recommendations. … After carefully scrutinising the evidence … I am of the opinion that the applicant and [her] husband Cameron did in fact tell the respondent to simply lay asphalt over the existing road base. … Further, during the performance of the work, it would have been plainly apparent to the applicant and to Cameron that the existing road base was not being removed.[9]
- [15]In short the parties abandoned the terms of Protheroe’s original quotation in favour of an economy job – ‘don’t need anything flash’.
- [16]The tribunal’s conclusion that the omission of a new base was ‘plainly apparent’ to the Smiths is consistent with the respondent’s evidence that Mr Smith ‘was home the whole time. He knew we weren’t doing road base. He was there the whole time.’[10]
- [17]The tribunal accepted the respondent’s evidence that “Cameron [Smith] was constantly interacting with him during the performance of work, and no objection was raised [to the omission of a new base] at that time”.[11]In the vernacular, Cameron was ‘breathing down the respondent’s neck’ as the respondent did the job.
- [18]Indeed, that view is supported by Smith’s own words, not alluded to in the decision:
At all relevant times Melissa and I instructed and communicated with the respondent jointly, and I was involved in all major communications with the respondent prior to the work and while the work was being undertaken.[12]
- [19]By way of compensation the Smiths sought compensation in the amount of $18,500 to engage another contractor to replace the driveway in toto.[13]
Action dismissed – leave to appeal is sought
- [20]For the reasons outlined herein the tribunal dismissed the application.
- [21]
- [22]Subsidiary grounds of appeal assume that the tribunal’s duty extends to conduct of a party’s case, and canvass questions of fact disposed of in the primary decision. That is seldom a promising approach.[16] Questions of fact and credit are the prerogative of the primary judge[17], and are seldom disturbed on appeal.[18] It is not a function of the tribunal to organise or present a party’s case. As a former President of QCAT observed:
[QCAT’s] jurisdiction is a busy and demanding one, in which parties are expected to present their own cases, and act in their own interests ... The legislation, and the demands upon public resources which fund QCAT necessarily impose an expectation and an obligation upon a party that it will ensure that it acts in its own best interests, or accept the consequences.[19]
Error of law? – The Australian Consumer Law
- [23]However the applicant’s principal ground raises an important point of law:
[The tribunal failed] to consider the application of the Australian Consumer Law (ACL) in that goods and services supplied to consumers are guaranteed to be of acceptable quality and fit for the purpose for which they are ordinarily supplied; and our rights as a consumer under the ACL cannot be waived or contracted out of.
- [24]Plainly this is a dispute between trader and consumer. There is, I think, no need to expatiate at length on this point. Indeed, a preliminary application by the Smiths to the Queensland Building Authority was rejected on the precise ground that this proceeding is a consumer dispute, not a building case.
- [25]Curiously the ACL is not explicitly mentioned in the transcript of the hearing or in the reasons for decision. But that does not prevent the statutory guarantees[20] from operating, provided that the circumstances invoke them, and that no statutory exception overrides the prima facie protection. When that protection is applicable it cannot be excluded, restricted or modified.[21]
- [26]However, the applicability of the guarantees is not quite absolute. On supply of goods section 54(4) of the ACL provides:
- If:
- (a)goods supplied to a consumer are not of acceptable quality; and
- (b)the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer’s attention before the consumer agreed to the supply;
- the goods are taken to be of acceptable quality.
- [27]And in relation to services – the more appropriate category here - section 61((3) enacts
This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier.
- [28]The exception relating to services is somewhat wider than the goods exception, in that the latter requires the caveat to be ‘specifically drawn to the consumer’s attention’, whereas the services exception considers any ‘circumstances’ from which it may be inferred that the consumer did not rely, or reasonably rely on the supplier’s skill and judgment.
- [29]In my opinion the circumstances of this case warrant the conclusion, if need be, that both exceptions apply. The tribunal found that the applicant and her husband ‘did in fact tell the respondent to simply lay asphalt over the existing road base.’[22] The adjudicator notes, without critical comment, the respondent’s claim that he ‘told the applicant and her husband that the existing driveway needed to be dug out and new road base applied’.[23] The applicant herself conceded that Protheroe ‘gave me his professional advice and said [that method] will not work’.[24] Despite this advice, the applicant insisted that a new base should not be laid. In an email to the applicant on 25 February 2021 the respondent repeated: ‘We do not warrant works we do not base … It’s the base that failed not our asphalt’.[25] There was no responsive reply.
- [30]There being, for those reasons, no breach of section 54 or 61 of the ACL no question of contracting out arises.
- [31]I can discern no appellable error in the primary decision. The application for leave to appeal must be dismissed.
ORDERS
- 1The application to adduce new evidence is dismissed.
- 2The application for leave to appeal is dismissed.
Footnotes
[1] Application for Miscellaneous Matters filed 2 September 2022.
[2] (1959) 100 CLR 298.
[3]Orr v Holmes (1948) 76 CLR 632 at 640-641; Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135.
[4] Ms Smith is formally the sole applicant in these proceedings but it is convenient and realistic to refer to them jointly as ‘the Smiths’.
[5] Tribunal’s decision 22 April 2022 (‘D’) page 4 lines 41ff; transcript of hearing 9 February 2022 (‘T’) page 29 lines 29-30.
[6] T page 21 lines 3-6; see also T page 22 line 46,
[7] T page 36 lines 30-32.
[8] D page 4 line 25.
[9] D page 43 lines 25-35, 44-46.
[10] T page 40 lines 29-30.
[11] D page 5 lines 1-2.
[12] Affidavit of Cameron Smith, filed 31August 2022 paragraph 2.
[13] Quotation of Asphalt Concepts Pty Ltd 12 October 2021.
[14] Leave is required by the QCAT Act s 142(3)(a)(i).
[15] QCAT Act s 143(4).
[16]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151; JM v QFG and KG [2000] 1 Qd R 373 at 391; Fox v Percy (2003) 214 CLR 118 at 125-126.
[17]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151; JM v QFG and KG [2000] 1 Qd R 373 at 391
[18]Fox v Percy (2003) 214 CLR 118 at 125-126.
[19]The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 at [9] and [10] per Wilson J.
[20] ACL s 54 (goods); s 60 (services)
[21] ACL s 64.
[22] D page 4 lines 32-34.
[23] D page 4 lines 4-5.
[24] T page 30 lines 17-18.
[25] See also D page 3 lines 32-34.