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:

1.   The application to adduce new evidence is dismissed.

2.   The application for leave to appeal is dismissed.

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?

The applicant seeks leave to adduce additional evidence as ‘fresh’ evidence.[1]
[1]Application for Miscellaneous Matters filed 2 September 2022.
The evidence in question is that of her husband Cameron Smith, who was not a witness at first instance.
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’].
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.
[2](1959) 100 CLR 298.
As the person principally involved with the respondent Mr Smith was obviously a material witness.
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.
With due respect, that is not an acceptable explanation. One need not know…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QCATA 95
Decision Date: 19 July 2023

CaseChat Overview and Summary

In the matter of Smith v Protheroe (t/a Angry Ant Asphalt, the applicant sought to appeal a decision that was made in a minor civil dispute. The respondent, who traded as Angry Ant Asphalt, had been contracted to renew the asphalt on the applicant's driveway. The dispute centred around the quality of the work done and whether the Australian Consumer Law guarantee applied to the contract. The applicant had instructed the respondent not to lay a new base before applying the asphalt. The respondent warned the applicant that this method was unsatisfactory, but the applicant insisted on the instruction. The respondent followed the instruction and applied the asphalt without a new base, resulting in a poor-quality job. The applicant sought to adduce fresh evidence and appeal the decision of the lower court.

The legal issues before the court were whether the Australian Consumer Law guarantee applied to the contract and whether an exception to that legislation applied. The court needed to determine whether the contract fell within the scope of the Australian Consumer Law and whether there were any exceptions that would exclude the guarantee from applying to the contract. The court also needed to consider whether the respondent had breached any terms of the contract or if the applicant's instructions had contributed to the poor quality of the work done.

The court dismissed the application to adduce new evidence and the application for leave to appeal. The court found that the contract was a consumer contract and that the Australian Consumer Law guarantee applied. However, the court found that an exception to the legislation applied because the poor quality of the work was due to the applicant's instructions, which were unreasonable. The court held that the applicant had not acted reasonably in instructing the respondent not to lay a new base before applying the asphalt. The court also found that the respondent had not breached any terms of the contract. Therefore, the application to adduce new evidence and the application for leave to appeal were dismissed.

The court's final orders were that the application to adduce new evidence was dismissed, and the application for leave to appeal was dismissed. The court's decision clarified the scope of the Australian Consumer Law guarantee and the exceptions that apply to it. The court also highlighted the importance of acting reasonably when giving instructions to a contractor. The decision serves as a useful reminder to both contractors and consumers of their respective obligations under a contract.

Orders

Orders of the court

1. The application to adduce new evidence is dismissed.

2. The application for leave to appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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