Kennedy v Swagman Australia P/L t/a Swagman Motorhomes
[2010] QCAT 452
•9 September 2010
| CITATION: | Kennedy v Swagman Australia P/L t/a Swagman Motorhomes [2010] QCAT 452 |
| PARTIES: | Mr William Kennedy |
| v | |
| Swagman Australia Pty Ltd trading as Swagman Motorhomes |
| APPLICATION NUMBER: | 635/2010 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 10 September 2010 |
| HEARD AT: | Southport |
| DECISION OF: | C Trueman – Adjudicator |
| DELIVERED ON: | 9 September 2010 |
| DELIVERED AT: | Southport |
ORDERS MADE: | 1. THAT the witness Rowan Armstrong is not required to attend the hearing on 20 October 2010 pursuant to Notice requiring witness to attend dated 7 May 2010. |
| CATCHWORDS : | Claim for minor civil dispute - Damage to Motor home - Notice requiring witness to attend directed to employee of Respondent Company - objection by Respondent for witness to appear at hearing due to cost and inconvenience caused to the Respondent Company - witness not able to provide any relevant evidence - witness did not perform any works to the motor home - claim by Applicant that witness advised that he had worked on the motor home - section 95 of the Queensland Civil and Administrative Tribunal Act 2009 . |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr William Kennedy |
| RESPONDENT: | Swagman Australia Pty Ltd trading as Swagman Motorhomes represented by Neil Ingram and Stephen Searle |
REASONS FOR DECISION
Overview of the dispute
The Applicant filed a claim on 11 February 2010 seeking an order that the Respondent pay an amount of $5,858.60 to him. The costs relate to the costs of rectification of defects to the motor home and in particular to repair cracking to the Motor home slide outs.
Application for Notice requiring witness to attend or produce document or thing:
The Applicant filed two applications. The first application requires the Respondent to produce particular documents, invoices and documents at the hearing. That application is not a part of this dispute nor considered in these reasons.
The second application was directed to a witness, Rowan Armstrong, to attend the hearing in person and to give evidence. The application also required the witness to produce business records which were contained in a list and attached to the Application. It is this application that is contested by the Respondents.
The parties were heard on 22 June 2010 in relation to the issue of the necessity of the witness to appear at the hearing. The Applicant gave evidence that he required the witness to attend to be cross examined as he was the person who worked on his Motor Home, had not undertaken proper repairs and was a relevant witness to the proceedings.
The Respondents who appeared stated that they were duly appointed agents to act on behalf of the Company and were able to give evidence about the issues in dispute. The respondents gave evidence that the witness did not work on the Motor Home and had no involvement with the vehicle and little involvement in dealing with the Applicant. The respondents gave evidence that the list of business records that were required of the witness to produce were records of the business and not records belonging to the witness.
The Respondents gave evidence that if the witness was compelled to attend that this would have a severe impact on the company as the witness was the Production manager and could not be absent from the workplace if the Respondents were also absent. The Respondents contended that the presence of the witness would also cause financial hardship to the company as they would loose money from lost productivity. The Respondents further stated that the witness would have little evidence to give to the tribunal and what evidence he could give was not relevant. The Respondents contended and that any evidence the witness may be able to provide could be provided by the Respondents themselves.
The Respondents stated that the records and list of documents that the witness was required to produce were documents that the Respondent Company could produce. The list of documents included:
a)“Record of all work undertaken on slide outs inclusive of “worksheets” and Owner photographs of defects.
b)Reports derived of accredited experts who examined the vehicle slide outs and made recommendations to repair on three separate occasions.
c)Adopted repair procedure details
d)Copy of painters tax invoice for paining slide outs after repair.
e)Tax invoices of person who undertook work on slide outs and relevant “Worksheets”.
f)Qualifications of witness in relation to repairs undertaken on vehicle.”
The Applicant raised particular issues he would require the witness to address in evidence. The Applicant gave evidence that the witness worked on his motor home and had discussions with him that are relevant to the issues in dispute. Orders were made on 22 June 2010 which provided:
(1) That the Respondent must make file and serve within 30 days an Affidavit of Mr Rowan Armstrong and provide evidence of the following:
(a) details of all work performed by him on the applicant’s motor home
(b) details of the time he spent working on the Applicant's motor home
(c) details of any other person that he is aware of that worked on the Applicant's motor home
(d) details of the content of any discussions between him and the Applicant regarding the motor home either in person or by telephone.
The Respondents filed an Affidavit of Rowan Armstrong sworn on 13 June 2010. Rowan Armstrong deposed that :
(1) "I am employed by Swagman Motor homes ("Swagman") as a Production Manager.
(2) I did not perform any work on the Applicant's motor home.
(3) I did not spend any time working on the Applicant's motor home.
(4) I had the following discussion with the Applicant:
(i) On 11 August 2009 I spoke with the Applicant, in person, in relation to the cracks/fissures on the slide outs of his motor home. This conversation took place when the Applicant bought his motor home to the Swagman premises and left it here for rectification;
(ii) During the time the motor home was at Swagman for rectification work, the Applicant phoned tow or three times in relation to thow the work should be undertaken, and what method and material should be used. I replied that i was leaving the matter with Steve Searle;
(iii) The Applicant collected the motor home upon completion of the work on 28 August 2009, and signed off on the 'works order sheet' as rectified;
(iv) After the motor home was collected, early the following week, I received what I remember to be another tow or three phone calls in relation to the motor home, and the alleged 'defects'.
(v) During these phone calls, the Applicant stressed that the cracks were unacceptable, and that the material used was incorrect, which is what he believed led to what he refers to as the "fractures" or "fissures";
(vi) The Applicant returned the motor home to Swagman on 19 October 2009, on which date I spoke to him again in person regarding the cracks in the slide outs;
- The Applicant collected the motor home on 6 November 2009. The Applicant appeared to be in a hurry, and he did not go through any paper work, nor did he sign anything off, he simply collected his keys and explained he was in a hurry and had to go. "
10. An order was made on 20 August 2010 :
(1) That a copy of the Affidavit of Rowan Armstrong sworn on 13 July 2010 be provided to the Applicant.
(2) That the Applicant file an Affidavit in support of his application for Notice requiring a witness to attend and a response to the Affidavit of Rowan Armstrong within 7 days from the date of this order.
11. The Applicant did not file a response until 6 September 2010. The response was filed out of time but has been accepted, considered and taken into account.
12. The Applicant claims that the content of the Affidavit of Rowan Armstrong is "untruthful and ….. flawed in accuracy". He further states that "Notwithstanding, the contents of the response are not in keeping with the application." This response by the Applicant is unclear and the reasons he proposed for the witness to appear in person, relies on the following :
"(1) Mr Rowan Armstrong admitted to the Applicant that he had undertaken work personally on the subject vehicle, as Swagman Motor homes did not have any employees to undertake the work. I submit to the Court that the evidence and attendance of Rowan Armstrong will assist the Court in the deliberation of this matter."
13. The evidence provided to the tribunal by the Applicant to compel the witness to appear at the hearing is without merit. The Applicant contends the witness worked on his motor home. The witness deposed that he did not. The content of the Affidavit of Rowan Armstrong that was sworn on 13 June 2010 at Helensvale supports the oral evidence of the Respondents. The Applicant did not produce any evidence to the tribunal that the witness had worked on the vehicle or had any dealings with the vehicle, or any evidence that would be relevant to the determination of the matter. I am satisfied that all relevant oral evidence regarding this claim can be provided by Mr Neil Ingram and Ms Steve Searle, who both are authorised by the Respondent Company to appear, and who had dealings with the Applicant. From the evidence I am satisfied that Rowan Armstrong had little knowledge or dealings with the Applicant and did not perform any work on the Motor home. From the content of the affidavit the witness appears to be able to give any relevant evidence to the issues in dispute.
14. I find that the list of documents that this witness was required to produce were documents that were not in his possession but the documents relate to the Company and are company records. I am satisfied that the Respondents, not the witness, have any such documents in their power, possession and control and can produce them at the hearing, if such documents exist.
15. Section 95 of the Act provides :
95 Evidence
(1) The tribunal must allow a party to a proceeding a reasonable opportunity to--
(a) call or give evidence; and
(b) examine, cross-examine and re-examine witnesses; and
(c) make submissions to the tribunal.
(2) Despite subsection (1)--
(a) the tribunal may refuse to allow a party to a proceeding to call evidence on a matter if the tribunal considers there is already sufficient evidence about the matter before the tribunal; and
(b) the tribunal may refuse to allow a party to a proceeding to cross-examine a witness about a matter if the tribunal considers--
(i) there is sufficient evidence about the matter before the tribunal; and
(ii) the evidence has been sufficiently tested by cross-examination; and
(c) for an expedited hearing under section 94, cross-examination or re-examination of witnesses is at the discretion of the tribunal, subject to the rules.
(3) Also, the tribunal may place time limits on the giving of evidence and on the examination, cross-examination and re-examination of witnesses.
(4) Evidence in a hearing--
(a) may be given orally or in writing; and
(b) if the tribunal requires, must be given on oath or by affidavit.
(5) A member or adjudicator may administer or cause to be administered an oath for the purpose of taking evidence at a hearing.
(6) A child can not be compelled to take an oath
The tribunal must allow the Applicant to conduct his case by allowing him to call and adduce evidence, cross examine witnesses and to make submissions to the tribunal. The tribunal may however, refuse to allow a party to a proceeding to call evidence on a matter if the tribunal considers there is already sufficient evidence about the matter before the tribunal. I am satisfied that the Respondents are the appropriate persons to give evidence regarding the work undertaken to the Applicants motor vehicle.
17. The tribunal has the power to accept evidence in a hearing by way of oral evidence or by way of sworn evidence by affidavit or statutory declaration. The content of the affidavit sworn by the witness does not in my view provide any assistance to the tribunal in the determination of the matter.
18. The claim is listed for hearing on 20 October 2010 at 2.00 pm and will proceed without the requirement for this witness to appear and attend. If it is determined during the Hearing that there is evidence of the witness, Rowan Armstrong, not already raised that becomes relevant to the Applicant’s claim, the Tribunal may consider an application by the Applicant at that time for a Notice to issue requiring the witness to attend the hearing and provide oral evidence if necessary.
ORDER:
THAT the witness Rowan Armstrong is not required to attend the hearing on 20 October 2010 pursuant to Notice requiring witness to attend dated 7 May 2010.
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