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: Reason for decision 1. The respondent Sean Kelly was originally named as the only respondent in respect of the goods supplied and work done. The evidence establishes that the contracted supply and work was agreed to be done by the business SRK Engineering of which both Sean Kelly and Robyn Kelly are registered proprietors. 2. The respondent Sean Kelly sent a Medical certificate yesterday to the Tribunal and advised that he could not attend today's hearing upon medical grounds. The certificate is a Centrelink Medical Certificate stating that, due to a recent surgical procedure, Mr Kelly is unfit to work. The certificate does not establish that Mr Kelly is unfit to attend the hearing today. There is no apparent reason why Mrs Kelly is not in attendance in any event. there is also no evidence as to why Mr Kelly could not participate by telephone, and no such application has been made. 3. The applicant's claim is supported by a quotation from a Mr Graeme Studdert of Classic Motorcycle Restoration Australia, which the Tribunal accepts as the best available evidence as to the amount of loss sustained by the applicant. The Tribunal is satisfied that this loss has been caused by defective supply and/or workmanship on the part of the respondent business. 1. The dispute between the parties concerned a motorcycle side car manufactured by the appellant for the respondent in or about June 2014. The application by the respondent for relief in the Tribunal was filed on 20 January 2016. It named as respondent Sean Kelly and expressed the claim as follows: We approached Sean Kelly at SRK Engineering to supply us with, fit and certify an SRK Griffin sidecar and also a leading link front end for our 2010 Triumph Rocket III Roadster motorcycle. The cost of these items and fitting was a total of $16,368.00 AUD including GST. We took delivery of this on 02/06/2014.The first defect was discovered on 03/06/2014 when the sidecar began to lean heavily against the motorcycle, resulting in poor handling and tracking of the outfit. The rim speed sensor attached to the SRK leading link front end broke at this time, meaning the ABS braking system no longer worked. The top rear sidecar mounting rod came out of its thread. SRK provided us with a replacement sensor. In all, this sensor broke 3 times and the last ABS sensor has not been replaced by SRK. In September 2014 whilst traveling on our long awaited and saved for trip to Perth on this outfit, the front bottom sidecar mounting arm broke. This resulted in us having to have it repaired in Ouyen Victoria by a welder there. All in all we have so far had 5 structural failures of the sidecar mounting points and whilst Sean Kelly has attempted to repair these problems on 3 occasions, each attempt has proven unsatisfactory, owing to his inability to see the structural problem lucidly and fix the engineering shortcomings of the sidecar. The problem as I perceive it is that the bike and sidecar lack rigidity and strength and the side car continually falls in against the bike, thereby "loading up" engineering stress of the mounting points and causing it to fail. On two further occasions we had the breakages re-welded on our travels. Finally, after the entire suspension unit on the sidecar collapsed while we were traveling at highway speeds near Kempsey NSW in August 2015, and a near death or serious injury episode, we took our complaints to Fair Trading. By this time the sidecar "boat" was also damaged by the impacts of the suspension unit continually hitting the wheel arch. This has been verified by a visit to and inspection by, the original manufacturer of the boat. After some consultation, we agreed to allow Sean Kelly to attempt to fix the problems. He redesigned and fabricated the suspension unit and sidecar chassis and we took delivery of this at Tamworth NSW. It is my opinion that once again he failed to address the fundamental engineering failure of the design and it is at this point that we need to have the sidecar fixed and rebuilt by a third party and certified from an engineering viewpoint. We have been patient and optimistic with the process for far longer than most clients would be, to the point of endangerng our own lives. These repairs will cost in excess of $2,000. We also seek costs to have the sidecar repaired and re painted. I estimate another $2000 for this. We also feel it is within our rights to have some costs reimbursed for our out of pocket and travel expenses incurred by our roadside repairs and trips to SRK to have the problems repaired. This I estimate to be around $1500. It is not our desire to claim anything more than what we feel is commensurate with our costs. We are resigned to keeping the product and living with it the best we can, but require assistance to do this. Order/s Sought An order to pay me the amount of $5500.00 Total Amount Claimed: $5500 1. According to the documents before us a notice dated 28 January was sent to the appellant by the Registrar. It was headed "Notice of Conciliation and Hearing (Group list)" and indicated that the respondent's application would be listed at Bathurst Court House on 11 February 2016 at 9:15am. 2. The appellant asserts that the notice arrived by mail on 9 February 2016 and on that day, he notified the Tribunal that "for medical reasons I will not be able to attend the Conciliation hearing on Thursday 11 February". The following day he produced to the Tribunal a medical certificate dated 9 February 2016 referred to in the Tribunal reasons. 3. The certificate on a form provided by Centrelink over the hand of a Dr S Kapuwatte was quite inadequate for the intended purpose. It certified that Mr Kelly had symptoms of a "Testicular Lump" for 3 months and in a box headed: "Surgery done". It certified that he would have symptoms which "will affect the patients capacity to work or study for 3 – 12 months". Finally it relevantly expressed the opinion that the "patient is/has been unfit for work/study from 01/02/2016 to 01/05/2016". 4. Unsurprisingly the Tribunal below did not regard the certificate as persuasive on the issue of granting an adjournment. No doubt the Tribunal would have taken a different view if it had known that the respondent only received notice of the hearing 2 days previously and that the notice itself was somewhat equivocal as to the purpose of the hearing. 5. However as at 11 February 2016 the respondent seems to have been in fact unfit to attend the hearing as evidenced by the medical report dated 22 February 2016 of Dr Kapuwatte which is before us: 22/02/2016 This is to certify that Sean Kelly XXXXXXXXXXXX XXXXXXX Was diagnosed with a Left side Testicular Tumour. He was operated on the 1st of Feb 2016 by a Urologist under general Anaesthesia. He was given narcotic analgesics for the pain and was discharged the same evening with oral narcotics analgesics. Sean had a left inguinal orchidectomy and would approximately take two weeks to recover from the surgery and effects of anaesthesia and narcotics analgesic effects. He will need to follow up with his urologist for review and he is also referred to a Oncologist at Daffodil cottage for follow up treatment. Dr Sanjaya Kapuwatte MB, BS, DCH 1. In the above circumstances we think the hearing below involved a substantial miscarriage of justice and, as it happened, the hearing was not fair and equitable, within the meaning of the Civil and Administrative Tribunal act. 2. Furthermore we think there is merit in the other grounds of appeal. 3. The proceedings were commenced against Mr Kelly only. He asserts that the sidecar was manufactured and supplied by SRK Custom Sidecars a registered business name of which he was the sole proprietor. The Tribunal gave no reasons for its conclusion that the contracting party was SRK Engineering of which Sean Kelly and Robyn Kelly were proprietors. The failure to give reasons on this important issue constituted an error of law as did the making of an order against Robyn Kelly without notice to her. 4. We also think the Tribunal erred in law by making an order for payment of a sum far in excess of the sum claimed in the Application without notice to the appellant. This came about because the Tribunal below accepted into evidence and relied upon a document issued by Dr G Studdert of Classic Motorcycle Restoration Australia described as "an estimate of the cost to modify the existing structure frame and connections on your Triumph Rocket and Sidecar. "The scope of the work in the estimate which totalled $8950 was expressed as: "Scope. Revise the existing design, develop a new design, fabricate the new design, install the new design, test, commission and sign off". 1. It is apparent from that document that Dr Studdert says nothing as to the causation between any defects in the work carried out by Mr Kelly and the need for the work comprised in his estimate. Although the Tribunal makes a finding on causation it gives no reasons for this finding which does not seem to be supported by any evidence. This also constituted an error in law. 2. In the result the order made below cannot be allowed to stand and there will need to be a re-hearing. Orders 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. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 28 June 2016 - Corrected clerical error on coversheet 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. Decision last updated: 28 June 2016