Kelly v Plunkett [2016] NSWCATAP 141

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kelly v Plunkett [2016] NSWCATAP 141 Hearing dates: 23 May 2016 Date of orders: 28 June 2016 Decision date: 28 June 2016 Jurisdiction: Appeal Panel Before: D Patten, Principal Member J Wakefield, Senior Member Decision: (1) Appeal allowed. (2) Quash order made by Tribunal at first instance. (3) Matter remitted to the Tribunal for re-hearing according to law. (4) No order as to cost. Catchwords: Inadvertent miscarriage of justice - failure to make findings and give adequate reasons - causation Legislation Cited: Civil and Administrative Tribunal act Category: Principal judgment Parties: Sean Terrance Kelly Sean William Plunkett Representation: Counsel: Mr Gelin (appellant) Respondent in person

Solicitors: File Number(s): AP 16/12266 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 11 February 2016 Before: K Rickards, General Member File Number(s): GEN 16/03058

Reasons for decision 1. This is an appeal against an order made by the Tribunal below on 11 February 2016: SEAN TERENCE KELLY and ROBYN FRANCES KELLY t/as SKR Engineering Australia are to pay SEAN PLUNKETT the sum of $8910.00 immediately. Particulars: $8910.00 Rectification costs for defective goods and installation work in relation to supply and fitting of SKR Griffin sidecar. The respondent's name SEAN KELLY, is amended to SEAN TERENCE KELLY and ROBYN FRANCES KELLY t/as SKR Engineering. 1. The grounds of appeal annexed to the notice of appeal were as follows: Grounds of Appeal The decision by Tribunal Member Mr K. Rickards is defective and erroneous as follows: 1. The business that supplied the sidecar to Mr Plunkett was SRK Custom Sidecars in which Mrs Robyn Frances Kelly has no official capacity at all. See business name registration attached and a copy of the original quote to Mr Plunkett. Note: that Mrs Kelly was not named as a Defendant or Respondent, received no notice of a claim and therefore had no reason whatsoever to have been present at a hearing. The FIRST notice Mrs Kelly had in relation to this matter was in the Tribunal's Notice of Order. Mrs Kelly should be removed from the claim altogether as a Defendant. 2. I, Sean Terence Kelly received notice of the Tribunal hearing on 9th February 2016 and advised the Tribunal on the same day of my inability to attend the hearing due to incapacity and recovery from a testicular cancer operation that required major abdominal surgery to remove the cancer and additionally required extra surgical procedure to repair a hernia which was discovered during the surgery. The operation took place on 1st February 2016 and I had been incapacitated by the surgery, remedial drugs and pain medication causing me to be unable to work. The Tribunal was informed on 9th February 2016, the day I received the Notice of Hearing that I was unable to attend. All documents attesting to this are attached to this annexure, including an additional medical certificate from the referring GP and the emails to NCAT advising non- attendance. It is an extraordinary lack of reasonable empathy and decency to have not accepted my medical condition despite having been accompanied by a Doctors Certificate. The medical certificate from my GP should have been accepted and the hearing postponed. 3. The Orders from NCAT are extraordinary in that they nominate that I could have joined the hearing by phone although I was not informed of that fact by the Tribunal. Additionally the Order states that Mrs Kelly could have attended in my place, again without any information provided by the Tribunal as to that fact. As outlined in Point 1 above Mrs Kelly had no capacity to answer questions or act on my behalf as she plays no role in the business and in fact works in another capacity in Bathurst. Note, the NCAT website under the section "Common Questions – Hearings" specifically states that an application to appear via phone must be made "in writing stating your specific reasons". At the time, my rehabilitation from the surgery prevented me from any from preparation. It is a denial of procedural fairness that I was not informed of the potential to have joined the hearing by phone although I was not fit to have such a discussion following my surgery. 4. The Notice of hearing dated 28 January 2016 arrived in the post at my O'Connell address on the 9th February 2016 giving me insufficient time to prepare adequately for a hearing to be held in a Court Room in front of a Tribunal. An appearance in a tribunal of this nature is intimidating in its own right even without taking into account my medical health at the time. So it is patently a denial of natural justice and procedural fairness for me to have been arbitrarily denied the right to adequately prepare for a hearing and it is reasonable that I should be allowed the opportunity to put forward my position. 5. The claim in the Application form lodged by Mr Plunkett dated 20th January 2016 includes an outline of a story in which many assertions are made that are factually incorrect to the point of fabrication. I repaired the sidecar while under warranty and later in good faith, made further adjustments to the sidecar that were unrelated to the warranty issue. Mr Plunkett has been opportunistic in continually returning to me wanting further work done on the sidecar when the machine was in fact more than double the warranty kilometres. I advised Mr Plunkett on 24th December 2015 that I no longer accept any liability or obligation (email attached). Further, modifications have been made to the sidecar that compromise it's roadworthiness and original structural design. I cannot be held liable for those modifications. Additionally, there appears to have been assertions made in the hearing (in my absence) that have added to the claim, increasing it from $5500 to $8910. The making of this decision by the Tribunal Member, which is adverse to me and my business, in a hearing wherein the NCAT describes it seeks conciliation is completely unfair. It is a denial of procedural fairness to me, firstly that I was unaware of the 40% increase in the claim without prior notice and secondly, without my having the reasonable opportunity to challenge, discuss or otherwise make a case to support my position. 6. Appeal fees of $396 are required prior to lodgement. I believe the Order by Mr. Rickards is so outrageously unfair that I should have the fees for an Appeal waived. Had the hearing been postponed, as it should have been and if I had been reasonably allowed to put my case to the Tribunal member this fee would not have been required. 1. Grounds 1 to 5 at least arguably raise questions of law and we will deal with them as such although we note that the appellant sought leave on the asserted basis that the decision was not fair and equitable. 2. Following pronouncement of the orders reproduced above the Tribunal below gave short reasons for them: