Kuhnell v Mazda Australia Pty Ltd - [2022] NSWCATCD 111

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Kuhnell v Mazda Australia Pty Ltd [2022] NSWCATCD 111
Hearing dates: 6 July 2022
Date of orders: 12 July 2022
Decision date: 12 July 2022
Jurisdiction: Consumer and Commercial Division
Before: D Moss, General Member
Decision:
On 7 July 2022 the following orders were made: The Tribunal finds that it has jurisdiction to hear and determine the application for an order to be made against Insurance Australia Limited trading as Coles Insurance Group.

Catchwords:
CONSUMER CLAIM - Whether Tribunal has jurisdiction to hear and determine the application – Whether there are any matters arising under the Insurance Contracts Act 1984 (Cth)

Legislation Cited:
Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Fair Trading Act 1987 (NSW) Fair Trading Amendment (Australian Consumer Law) Act 2010 (NSW) Insurance Contracts Act 1984 (Cth) Judiciary Act 1903 (Cth)

Cases Cited:
Qantas Airways Limited v Lustig [2015] FCA 253
LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31
R v Commonwealth Court of Conciliation and Arbitration; exparte Barret [1945] 70 CLR 141
Mooregate Tobacco Co Ltd v Phillip Morris Ltd [1980] HCA 32
Fencott v Muller [1983] HCA 12
Felton v Mulligan [1971] HCA 39
China Shipping (Australia) Agency Co Pty Ltd v D V Kelly Pty Ltd [2010] NSWSC 1556
Attorney General for New South Wales v Gatsby [2018] NSWCA 254

Texts Cited:
Nil

Category: Principal judgment
Parties: Paul Kuhnell, (Applicant)
Mazda Australia Pty Ltd (First Respondent)
Insurance Australia Limited trading as Coles Insurance Group (Second Respondent)
Representation:
Applicant (Self-represented)
Ms Ironside (First Respondent)
Solicitors:
Turks Legal (Second Respondent)

File Number(s): MV 22/13101
Publication restriction: Nil

REASONS FOR DECISION

Application

On 24 March 2022, the Applicant filed an application in the Consumer and Commercial Division of the Tribunal.
The First Respondent is Mazda Australia Pty Ltd, (“Mazda Australia”).
The Second Respondent is Insurance Australia Limited trading as Coles Insurance Group, (“Coles Insurance”).
At the hearing on 6 July 2022, the Applicant sought an order that his Mazda 6 motor vehicle be repaired by Mazda Australia, following the safety deployment of the bonnet on 13 December 2021.
In the alternative, the Applicant sought an order that Coles Insurance approve his claim on his policy of motor vehicle insurance.

Background

On 17 March 2021, the Applicant purchased a new Mazda 6 motor vehicle from the Mazda dealership at Lismore NSW. The purchase price was $38,497.00.
On 13 December 2021, the Applicant was driving his Mazda 6 motor vehicle along Hastings Valley Drive at Port Macquarie, when the bonnet safety system deployed.
The Applicant took his vehicle to the Mazda dealership at Port Macquarie for diagnosis.
On 12 January 2022, Jason Halliday, a Mazda Australia Field Technical Specialist, inspected the Applicant’s vehicle and formed the opinion that the active bonnet system had been deployed due to impact.
At all relevant times, the Applicant’s motor vehicle was insured with Insurance Australia Limited trading as Coles Insurance Group, (“Coles Insurance”).
The Applicant made a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWCATCD 111
Decision Date: 12 July 2022

CaseChat Overview and Summary

The applicant, Kuhnell, sought a determination from the Australian Consumer and Competition Commission Tribunal regarding an application for an order against Insurance Australia Limited, trading as Coles Insurance Group. The dispute arose from an incident involving a motor vehicle accident and related insurance matters, which ultimately led to the Tribunal being asked to assess whether it had jurisdiction to hear and determine the application. The Tribunal also needed to decide whether there were any matters arising under the Insurance Contracts Act 1984 (Cth).

The primary legal issue before the Tribunal was whether it had the jurisdictional authority to hear the application and determine the claim against Coles Insurance Group. Additionally, the Tribunal had to examine if there were any matters that fell under the purview of the Insurance Contracts Act 1984 (Cth), which could potentially influence the proceedings or the relief sought. The resolution of these issues was critical as it would set the scope and direction of the subsequent legal proceedings.

In delivering its decision, the Tribunal meticulously evaluated the jurisdictional parameters and the applicability of the Insurance Contracts Act 1984 (Cth) to the case at hand. The Tribunal found that it possessed the necessary jurisdiction to hear and determine the application against Coles Insurance Group. Furthermore, it concluded that the matters before it did not involve any issues arising under the Insurance Contracts Act 1984 (Cth), thus affirming its jurisdiction to proceed with the case. The Tribunal's careful consideration of these points ensured that the application could be appropriately addressed within its legal framework.

Following its findings, the Tribunal made an order on 7 July 2022, confirming its jurisdiction to hear and determine the application against Coles Insurance Group. This decision paved the way for the Tribunal to proceed with the examination of the merits of the claim, allowing the parties to pursue their respective positions within the established legal parameters.

Orders

Orders of the court

On 7 July 2022 the following orders were made: The Tribunal finds that it has jurisdiction to hear and determine the application for an order to be made against Insurance Australia Limited trading as Coles Insurance Group.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Kuhnell v Mazda Australia Pty Ltd [2022] NSWCATCD 111
Hearing dates:	6 July 2022
Date of orders:	12 July 2022
Decision date:	12 July 2022
Jurisdiction:	Consumer and Commercial Division
Before:	D Moss, General Member
Decision:	On 7 July 2022 the following orders were made: The Tribunal finds that it has jurisdiction to hear and determine the application for an order to be made against Insurance Australia Limited trading as Coles Insurance Group.
Catchwords:	CONSUMER CLAIM - Whether Tribunal has jurisdiction to hear and determine the application – Whether there are any matters arising under the Insurance Contracts Act 1984 (Cth)
Legislation Cited:	Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Fair Trading Act 1987 (NSW) Fair Trading Amendment (Australian Consumer Law) Act 2010 (NSW) Insurance Contracts Act 1984 (Cth) Judiciary Act 1903 (Cth)
Cases Cited:	Qantas Airways Limited v Lustig [2015] FCA 253 LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31 R v Commonwealth Court of Conciliation and Arbitration; exparte Barret [1945] 70 CLR 141 Mooregate Tobacco Co Ltd v Phillip Morris Ltd [1980] HCA 32 Fencott v Muller [1983] HCA 12 Felton v Mulligan [1971] HCA 39 China Shipping (Australia) Agency Co Pty Ltd v D V Kelly Pty Ltd [2010] NSWSC 1556 Attorney General for New South Wales v Gatsby [2018] NSWCA 254
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Paul Kuhnell, (Applicant) Mazda Australia Pty Ltd (First Respondent) Insurance Australia Limited trading as Coles Insurance Group (Second Respondent)
Representation:	Applicant (Self-represented) Ms Ironside (First Respondent) Solicitors: Turks Legal (Second Respondent)
File Number(s):	MV 22/13101
Publication restriction:	Nil