Ash Industries Pty Ltd v Plumb [2010] QCATA 53

CITATION: Ash Industries Pty Ltd v Plumb [2010] QCATA 53 PARTIES: Ash Industries Pty Ltd (Applicant/Appellant) v Robert Lindsay PLUMB (Respondent) APPLICATION NUMBER: APL132-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 21 September 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. Grant leave to appeal; 2. Allow the appeal; and, 3. Return the matter for rehearing in the Minor Civil Disputes’ jurisdiction, with leave to the parties to adduce further evidence. CATCHWORDS : MINOR CIVIL DISPUTE – CONTRACTUAL DISPUTE – WARRANTIES – where applicant constructed a driveway at the respondent’s premises – where respondent alleged large cracks appeared on driveway – where applicant did not make specific warranties in respect of driveway – where evidence did not establish cause of cracks – where respondent obtained verbal quotes for repairing cracks – where adjudicator awarded respondent sum based on verbal quotes – where applicant alleges decision did not accord with weight of evidence – whether error of law, mixed law and fact, or fact MINOR CIVIL DISPUTE – EVIDENCE – FINDINGS OF FACT – whether findings of fact and inferences supported by the evidence – whether contrary to the inferences -- 1 of 5 -- 2 PRACTICE – REASONS – whether reasons properly address evidence and findings Queensland Civil and Administrative Tribunal Act 2009, ss 43, 142(3) Attorney-general v Kehoe [2001] 2 Qd R 350, cited Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, applied Canada (Director of Investigation and Research) v. Southam Inc [1997] S.C.R. 748, cited Chambers v Jobling (1986) 7 NSWLR 1,cited Collector of Customs v Agfa-Gevaert Ltd (1995) 186 CLR 389, cited Dearman v Dearman (1908) 7 CLR 549, cited Fox v Percy (2003) 197 ALR 201, applied Tully v McIntyre [2001] 2 Qd R 338, cited REASONS FOR DECISION [1] This appeal concerns a driveway at Mr Plumb’s property at Anstead. It was constructed by Ash Industries Ltd in early 2007 but, as Mr Plumb alleges, large cracks began to appear in it about 10 months later. He brought proceedings in QCAT’s Minor Civil Disputes jurisdiction for $12,985.20 and, after a hearing by an adjudicator on 9 April 2010, was awarded that sum. [2] Documents tendered at the hearing include a quotation from Ash Industries to construct an asphalt driveway for $12,827.16 plus GST (for a total of $14,109.88). Ash Industries’ ultimate invoice to Mr Plumb (and Ms Kerry Plumb) of 8 February 2007 was for $14,110.54 and, as is not in issue, followed the construction of a driveway in accordance with the quotation. [3] Mr Plumb’s complaint is that the initial cracks, appearing some 10 months after February 2007, were only temporarily repaired and by 2009 large cracks had appeared all over the driveway which Ash Industries has wrongly refused to repair. His evidence at the hearing was to the effect that he had ‘verbal quotes’ for the rectification of the cracking problem, the lowest of which was $12,985.20. [4] At the hearing Mr Plumb appeared for himself and Mr James Harriman represented Ash Industries. The transcript of the hearing suggests that neither was sworn but each proceeded to evidence and address the learned adjudicator, and each other in what was, in effect, a lengthy discussion taking up just over 17 pages of typed transcript. [5] At the conclusion the learned adjudicator, in his reasons, referred to submissions from Ash Industries that the cracks were the result of earth -- 2 of 5 -- 3 shifting, as a result of a drought and subsequent rain; and, that the cracks would continue to appear but were nothing more than a ‘maintenance issue’; and, that no warranty had been given in respect of the driveway. [6] The learned adjudicator’s reasons do not record any findings of fact but it is clear, by inference, that he accepted Mr Plumb’s evidence that the cracks were significant. The material parts of the reasons, delivered orally at the end of the hearing, are: I am somewhat concerned that in a job such as this no warranty is given. It is not inexpensive work and one would have thought that the driveway, such as it was, would have lasted a lot longer than it did without cracking. Obviously everyone is aware of sessional changes and soil movements, but that should not be the basis upon which a respondent is not liable for what appears to be shoddy workmanship. In the circumstances, I propose to allow the claim as sought and I direct that the respondent company do pay the plaintiff the amount claimed of $12,985.20… [7] This Appeal Tribunal directed that the application for leave to appeal, and the appeal itself (if leave is granted) would be determined by written submissions, which the parties have exchanged. The submissions for Ash Industries have plainly been prepared by solicitors acting for it although Ash Industries has neither sought, nor obtained, leave to be represented: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 43. In his submissions Mr Plumb has, not unreasonably, protested about this. It is regrettable but, for reasons which follow, two things are apparent: that the appeal must succeed; and, that nothing which might have been said on Mr Plumb’s behalf, e.g. by lawyers, would have prevented that outcome. [8] There are, with respect, a number of troubling elements in the decision. First, under the contract between the parties it was agreed in writing that the supplier had not made any warranties in respect of the driveway it would build, and that the ‘customer’ had ‘…satisfied itself as to the extent and quality of the fitness of the services for the purposes to which the customer intends to put the services to use’. [9] Secondly, the supplier’s obligation to repair was limited to the terms of legislative warranties. Thirdly, there was no evidence before the learned member which pointed to a finding that the cracks were caused by any breach of contract (or negligence, or any other cause). Indeed, the learned member made no finding of that kind although the phrase ‘shoddy workmanship’ might imply that conclusion. If that is so, however, the finding was made in the absence of any evidence from anyone other than Mr Plumb (and, in particular, the absence of any expert evidence) that the cracking was the product of inadequate workmanship, inappropriate or incorrect materials, or the like. [10] Finally, there was no written evidence to support the amount claimed for repair work by Mr Plumb. That would not prevent the decision maker from -- 3 of 5 -- 4 making a finding on the basis of oral evidence but it is troubling that the amount claimed for repair work approximates the entire cost of the original job. [11] Under s 142(3)(a)(i) of the QCAT Act a party seeking to appeal a decision in a Minor Civil Dispute must first obtain leave. Leave to appeal will ordinarily only be granted where there some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and reasonable prospect of the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [12] The reasons fail, with respect, to disclose whether or not the learned adjudicator took the terms of the contract into account at all. In the absence of a reference to them it is compelling that he failed to do so. Secondly, while the existence of the cracks might give rise to an inference of shoddy workmanship, they do not compel that conclusion. The reasons fail to address the possibility of an innocent explanation. Thirdly, the process of reasoning which led to the assessment of damages in the sum claimed by the applicant below is not disclosed. [13] Generally speaking, the nature and extent of the obligation to provide full reasons varies according to the nature of the case 1 . In QCAT’s minor civil disputes jurisdiction, giving immediate oral decisions accords with the spirit and purpose of the QCAT Act. Those decisions will not be exposed to criticism which fails to acknowledge the circumstances in which they are given, or the pressure of the adjudicator’s caseload. That proposition is not exclusive to the minor civil disputes jurisdiction or the work of adjudicators; as Spigelman CJ remarked in Commissioner of Taxation v Baffsky [2001] NSWCCA 332 at [49]: It is not appropriate to parse and analyse judgments given on an ex tempore basis by judges of the District Court, who have a considerable caseload. [14] However, as I stated earlier, the reasons here did not disclose with sufficient certainty that relevant inferences or findings of fact could be supported by the evidence. Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it 2 . An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case 3 . As the High Court said in Fox v Percy: 1 Attorney-general v Kehoe [2001] 2 Qd R 350 at 356; Tully v McIntyre [2001] 2 Qd R 338 2 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at 207, 208 3 Chambers v Jobling (1986) 7 NSWLR 1 at 10 -- 4 of 5 -- 5 In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must not ‘shrink from giving effect to its own conclusion. 4 [15] An appeal in this Tribunal may be granted where the primary decision is vitiated by an error or law, mixed fact and law, or fact5 . The distinction between questions of law and fact is not always clear, and courts have not found it easy to formulate a satisfactory test of universal application6 . A concise and helpful summary appears, in my view, in this passage from a decision of the Supreme Court of Canada 7 : Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.8 [16] In Australian Broadcasting Tribunal v Bond9 Mason CJ observed that the question whether there is any evidence of a particular fact is a question of law, as is the question whether a particular inference can be drawn from facts found, or agreed; and, that the making of findings or the drawing of inferences in the absence of evidence is an error of law. [17] In the present case the failure to give any apparent weight to the terms of contract, and the finding about the quality of the workmanship in circumstances where there is apparent uncertainty whether the evidence supported that finding are questions of law, and the applicant should therefore have leave to appeal. For the same reasons, the appeal should be allowed. [18] Under s 146 of the QCAT Act, in an appeal on the question of law the Appeal Tribunal may take a number of courses, one of which is to set aside the decision and return the matter to the Tribunal for reconsideration. Here, the shortcomings in the evidence are apparent but, at the same time, the correct decision in the matter is uncertain as a consequence of those shortcomings. In particular, this Appeal Tribunal is not in a position to determine the correct decision. [19] The evidentiary deficiencies in Mr Plumb’s case will be apparent from what has already been set out. The appropriate cause is to order that the matter be returned to QCAT’s Minor Civil Disputes jurisdiction for rehearing by an adjudicator, with leave to both parties to adduce such further or additional evidence as they may wish to present. 4 Fox v Percy (supra) at 209 per Gleeson CJ, Gummow an Kirby JJ 5 See QCAT Act, ss 146 and 147 6 See Collector of Customs v Agfa-Gevaert Ltd (1995) 186 CLR 389 at 394 7 Canada (Director of Investigation and Research) v. Southam Inc [1997] 1 S.C.R. 748 8 Ibid, at [35] per Iacobucci J 9 (1990) 170 CLR 321, at 355 -- 5 of 5 --