Wickremeratne v Dr Ina Van der Merwe t/as Balgowlah Family Practice [2021] NSWCATAP 161

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wickremeratne v Dr Ina Van der Merwe t/as Balgowlah Family Practice [2021] NSWCATAP 161 Hearing dates: 22 March 2021 Date of orders: 31 May 2021 Decision date: 31 May 2021 Jurisdiction: Appeal Panel Before: R C Titterton OAM, Senior Member M Gracie, Senior Member Decision: (1) Appeal upheld. (2) The whole of the proceedings be remitted to a differently constituted Tribunal for a new hearing and redetermination of the appellant's application in accordance with the evidence previously adduced to the Tribunal, the new evidence allowed in this appeal and such further evidence as the Tribunal may allow. (3) If the appellant seeks an order as to her costs of the appeal, within 14 days of the publication of these reasons she is to provide any submissions to the Tribunal and to the respondent's solicitors setting out the relevant provisions of the NCAT Act and Rules relied upon and the reasons why costs should be awarded in her favour. The submissions must be limited to three pages and also address whether the appellant consents to us dispensing with a hearing on costs and determine the issue "on the papers" pursuant to s 50(2) of the NCAT Act. (4) The respondent may provide any submissions in response within 14 days of receipt of the appellant's submissions, also limited to three pages and also to address whether the respondent consents to us dispensing with a hearing on costs and determining the issue "on the papers" pursuant to s 50(2) of the NCAT Act. Catchwords: APPEAL — appeal from decision of the Consumer and Commercial Division - questions of law - self represented appellant - legal standard of care and skill - professional standards and findings of Dental Council - whether Tribunal considered all available causes of action - application of state laws when federal jurisdiction exercised - where the Tribunal failed to take into account relevant considerations and took into account irrelevant matters - new evidence CONSUMER LAW - professional dental services - consumer guarantees - guarantee of due care and skill - fitness for purpose guarantee - result guarantee EVIDENCE - expert evidence - where some instructions to expert not established - where some opinions of expert not based on evidence - reasons relied upon to prefer respondent's expert evidence Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil Liability Act 2002 (NSW) Fair Trading Act 1987(NSW) Health Practitioner Regulation National Law (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Adler & Anor v ASIC [2003] NSWCA 131; (2003) 46 ACSR 504 ASIC v Rich & Ors [2005] NSWCA 152; (2005) 218 ALR 764 Bakovski v Lenehan [2014] NSWSC 671 Benic v State of NSW [2010] NSWSC 1039 BuildPlatinum Pty Limited v Micaleff [2021] NSWCATAP 129 Cominos v Di Rico [2016] NSWCATAP 5 Federal Commission of Taxation v Trail Brothers Steel & Plastics Pty Ltd (2010) 186 FCR 410 Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 Indico Holdings Pty Ltd v TNT Australia Pty Ltd (1990) 41 NSWLR 281 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Moore v Scenic Tours Pty Limited (No.2) [2017] NSWSC 733 Moore v Scenic Tours Pty Ltd [2020] HCA 17 Murphy v Trustees of Catholic Aged Care Sydney [2019] NSWCATAP 37 Old v Miniter [2021] NSWCA 92 Paino v Paino [2008] NSWCA 276; (2008) 40 Fam LR 96 Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85, Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Limited [2002] FCAFC 157; (2002) 55 IPR 354 Yong v Antworks Pty Ltd [2016] NSWCATAP 14 Texts Cited: None cited Category: Principal judgment Parties: Savithri Stella Wickremeratne (Appellant) Dr Ina Van der Merwe t/as Balgowlah Family Practice (Respondent) Representation: Solicitors: Appellant (Self Represented) Meridian Lawyers (Respondent) File Number(s): 2021/00056017 (AP 21/00372) Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 09 October 2020 Before: J Searson, General Member File Number(s): GEN 20/25533