Frank Acquilina v Felspin Pty Ltd t/as Byron Bay Microlights [2014] NSWCATCD 23

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Frank Acquilina v Felspin Pty Ltd t/as Byron Bay Microlights [2014] NSWCATCD 23 Hearing dates: 5 December 2013 Decision date: 14 March 2014 Jurisdiction: Consumer and Commercial Division Before: G Bassett, General Member Decision: The application is dismissed because having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders have been established. Catchwords: Risk, recreational activity, negligence, consumer, guarantee, skill and care, fit for purpose, flying, lessons, services Legislation Cited: Competition and Consumer Act 2010 (CTH) Consumer Claims Act 1998 (NSW) Fair Trading Act 1987 (NSW) Civil Liability Act 2002 (NSW) Cases Cited: Campbell v Hay [2013] NSWDC 11 Category: Principal judgment Parties: Frank Acquilina (applicant) Felspin Pty Ltd t/as Byron Bay Microlights (respondent) Representation: Applicant self-represented R Tabaka for the respondent File Number(s): GEN 12/62721

reasons for decision

APPLICATION 1The application was filed on 10 December 2012. The applicant attached written submissions of some six (6) pages. The matter was first set down for hearing on 26 February 2013. That hearing was adjourned as the applicant had been unexpectedly admitted to hospital. 2The two (2) respondents nominated in the originating application were Byron Bay Microlights, BN 983 862 48 and Hang Gliding Federation of Australia ("HGFA"). 3The matter came before me on 20 May 2013. There was no appearance by HGFA. The matter was adjourned for formal hearing. The usual directions were made in relation to the lodgement and service of documents for hearing. 4On 17 May 2013 the Tribunal received extensive written submissions from HGFA giving reasons why it should not have been a party in the proceeding. 5On 6 June 2013, the applicant provided further documents to be relied on at the hearing in addition to the submission he attached to his originating application. 6On 15 July 2013 the matter came before Member Ross for formal hearing. However, it was adjourned as the the matter had been listed on a date the respondent had indicated he was overseas. The application against HGFA was withdrawn. Felspin Pty Ltd is the corporate proprietor of the business name, Byron Bay Microlights. Member Ross directed that the respondent's name be amended accordingly. Further orders were made in relation to lodgement and service of documents. 7On 18 June 2013, Felspin Pty Ltd lodged documents on which it intended to rely at the hearing.