Robertson v Kenport Petroleum Pty Ltd [2021] NSWCATAP 96

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Robertson v Kenport Petroleum Pty Ltd [2021] NSWCATAP 96 Hearing dates: On the papers Date of orders: 21 April 2021 Decision date: 21 April 2021 Jurisdiction: Appeal Panel Before: The Hon F Marks, Principal Member D Charles, Senior Member Decision: Leave to appeal is refused and the appeal is dismissed Catchwords: APPEAL – appeal from dismissal of claim that contaminated diesel fuel dispensed from petrol station – held no direct evidence of cause of contaminated fuel in appellant's vehicle – held insufficient circumstantial evidence to justify acceptance of claim – decision upheld – appeal dismissed Legislation Cited: None cited Cases Cited: Calin v The Greater Union Organisation Pty Limited [1991] HCA 23 Chamberlain v The Queen (No 2) [1984] HCA 7 Texts Cited: None cited Category: Principal judgment Parties: Murray Robertson (Appellant) Kenport Petroleum Pty Ltd (Respondent) Representation: Appellant (Self-Represented) Respondent (Self-Represented) File Number(s): 2021/00056034 (AP 21/01300) Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 26 November, 2020 Before: D Moss General Member File Number(s): GEN 20/30582

reasons for decision

Background 1. By Application filed on 16 July 2020 the Appellant in these proceedings, Murray Robertson brought a claim in the Consumer and Commercial Division of this Tribunal against the respondent Kenport Pty Ltd claiming payment of $11,000 as compensation for damage sustained to a motor vehicle allegedly caused by contaminated diesel fuel which he had purchased from the respondent. 2. By decision made on 26 November 2020, which was the subject of written reasons for decision issued on 2 December 2020 a Member of this Tribunal dismissed the appellant's claim. The appellant has sought leave to appeal and to appeal from that decision. 3. In essence, the appellant's application was dismissed because the Member concluded that she was not satisfied on the balance of probabilities that the diesel fuel supplied by the respondent to him was "not of acceptable quality or not fit for purpose." 4. Both parties filed submissions and certain factual documentation and both parties agreed that these appeal proceedings should be determined on the basis of that material without the necessity for a hearing. We agree that this is an appropriate course and have proceeded accordingly. We add for completeness that some of the factual material, especially that provided by the respondent was not provided to the Member in the original proceedings. The appellant has not objected to our receipt of this additional material. However, we are able to determine these proceedings without reference to that additional material.