New South Wales Supreme Court CITATION : Krupowicz & Anor v Consumer, Trader & Tenancy Tribunal & Anor [2003] NSWSC 1159 HEARING DATE(S) : 27 November 2003 JUDGMENT DATE : 27 November 2003 JURISDICTION: Common Law Division Administrative Law List JUDGMENT OF : Master Malpass DECISION : I set aside the order made by the Tribunal on 5 September 2002. The proceedings are remitted back to the Tribunal for the determination of the question of fault according to law. I order that the second defendant pay the plaintiffs' costs of these proceedings and if the second defendant is so entitled, he is to have a certificate under the Suitors' Fund Act, 1951. CATCHWORDS : Appeal - gratuitous bailment - negligence must be proved - error in respect of a question of law. LEGISLATION CITED : Suitors' Fund Act, 1951. CASES CITED : N/A Christian Krupowicz and David Krupowicz (Plaintiffs) PARTIES : v Consumer, Trader & Tenancy Tribunal (First Defendant) Ryan Berryman (Second Defendant) FILE NUMBER(S) : SC 30008 of 2003 Mr B Slowgrove (Plaintiffs) COUNSEL : N/A (First Defendant) N/A (Second Defendant) John J. Puleo & Company (Plaintiffs) SOLICITORS : I V Knight - Crown Solicitor- Submitting Appearance (First Defendant) N/A (Second Defendant) LOWER COURT Consumer, Trader & Tenancy Tribunal JURISDICTION : LOWER COURT MV 02/70842 FILE NUMBER(S) : LOWER COURT K Ross, Member JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST Master Malpass Thursday 27 November 2003 30008 of 2003 Christian Krupowicz & Anor v Consumer, Trader & Tenancy Tribunal & Anor JUDGMENT 1 MASTER: The second defendant was the owner of a Holden Commodore motor vehicle. He left the vehicle at the first plaintiff's car yard so that work could be done on it by the second plaintiff. The work was to be performed gratuitously. Whilst the vehicle was at the car yard it was stolen. 2 As the question of liability could not be resolved between the parties, the second defendant brought an application before the Consumer, Trader and Tenancy Tribunal (the Tribunal) claiming damages. It went to hearing and the parties were unrepresented. At the end of the hearing, the Tribunal made an order that the plaintiffs pay to the second defendant the sum of $7,500 (this being the Tribunal's assessment of the value of the vehicle). 3 The plaintiffs now bring an appeal to this Court. The appeal lies only where the Tribunal has made a decision in respect of a question of law. 4 The appeal was set down for and heard on 27 November 2003. Although the defendant had earlier appeared in the proceedings and had notice of the hearing date, he did not appear at the hearing. 5 Subsequent to the commencement of the proceedings, reasons for decision were delivered by the Tribunal. This has led to further amendment of the originating process. The plaintiffs now proceed on the Further Amended Summons. 6 The Further Amended Summons propounds one ground of appeal only and it is in the following terms:- "1. The Tribunal erred in law in that it found the Plaintiff liable to the Defendant as a bailee without making Any (sic) finding that the loss of the Defendants (sic) vehicle was as a result of the Plaintiff's fault." 7 The reasons for decision disclose that the Tribunal determined that the plaintiffs were liable as bailees. Unfortunately, in addressing the question of liability, the Tribunal misdirected itself as to what should be determined. It appears to have proceeded on the basis that strict liability arose in the circumstances of this case. 8 Whilst there may be dispute on the question of onus (a number of Australian cases place the onus of proving negligence upon the bailor where the safekeeping is gratuitous), the law as it presently stands requires proof of negligence before damages can be recovered in a claim founded on bailment. 9 The failure of the Tribunal to properly address the question of liability leaves the court with no option but to set aside the decision and to remit the matter back to the Tribunal for determination of the question of fault according to law. 10 It is unfortunate that this has to be done, as the amount in issue in this case is only in the modest sum of $7,500. 11 I will make these orders:- I set aside the order made by the Tribunal on 5 September 2002. The proceedings are remitted back to the Tribunal for the determination of the question of fault according to law. (Mr Slowgrove applied for costs) 12 I will make an order that the second defendant pay the plaintiffs' costs of these proceedings and if the second defendant is so entitled, he is to have a certificate under the Suitors' Fund Act, 1951. ********** Last Modified: 12/08/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.