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QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Knox v Tait Motors Pty Ltd t/as Tait Auto Group  QCAT 351
KENNETH WILLIAM KNOX
TAIT MOTORS PTY LTD t/as TAIT AUTO GROUP
Motor vehicle matters
22 November 2019
On the papers
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – GUARANTEES, CONDITIONS AND WARRANTIES – application for leave to be represented – application for manufacturer to be joined
Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law, s 274
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 42, s 43
Australian Competition and Consumer Commission v Ford Motor Company of Australia Limited  FCA 703
MGM Containers Pty Ltd v Wockner  QCA 502
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- Mr Knox filed a Form 59: Application – Motor Vehicle Dispute with the Tribunal on 9 September 2019. The named respondent was Tait Motors Pty Ltd trading as Tait Auto Group (‘Tait’). Mr Knox claims a refund of $35,790 from Tait in respect of his Holden Colorado motor vehicle. The grounds raised by Mr Knox relate to excessive oil consumption by the motor vehicle.
- Two interlocutory applications have subsequently been filed in the proceedings:
- (a)an application for leave to be represented was filed by Mr Knox on 9 September 2019; and
- (b)a joinder application was filed by General Motors Holden Australia NSC Ltd (‘Holden’) on 15 October 2019.
- I will deal with each interlocutory application in turn.
Leave to be represented
- Mr Knox has sought leave to be represented by Mr Stewart Anthony Lette. Mr Lette is not an Australian legal practitioner. Mr Lette is described in the application as a ‘consumer advocate’ for ‘Lemon Vehicles in Aus’.
- Mr Knox provided the following reasons in support of his application for leave to be represented:
Because I am not familiar with the Consumer Laws and how it works and the complexity of the case. I don’t have a very good understanding of the matters.
- The effect of s 43 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) is that parties in proceedings in this Tribunal are to represent themselves unless the interests of justice require otherwise.
- The purpose of this provision is to ‘avoid unnecessary costs to parties and an overly legalistic and formal approach to the conduct of proceedings, while ensuring representation is allowed in cases where the interests of justice and the rules of natural justice would require it’.
- Section 43 relevantly provides as follows:
- (1)The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise.
- (2)In a proceeding, a party—
- (a)may appear without representation; or
- (b)may be represented by someone else if—
- (i)the party is a child or a person with impaired capacity; or
- (ii)the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person; or
- (iii)an enabling Act that is an Act, or the rules, states the person may be represented; or
- (iv)the party has been given leave by the tribunal to be represented.
- (3)In deciding whether to give a party leave to be represented in a proceeding, the tribunal may consider the following as circumstances supporting the giving of the leave—
- (b)the proceeding is likely to involve complex questions of fact or law;
- (c)another party to the proceeding is represented in the proceeding;
- (d)all of the parties have agreed to the party being represented in the proceeding.
- (4)A party cannot be represented in a proceeding by a person—
- (b)who is not an Australian legal practitioner or government legal officer, unless the tribunal is satisfied the person is an appropriate person to represent the party.
- In accordance with s 43(2)(b)(iv), Mr Knox requires the leave of the Tribunal to be represented.
- The Tribunal’s discretion when considering whether to grant leave for a party to be represented is exercised in the context of the requirement to comply with the interests of justice as set out in s 43(1), as well as the additional factors set out in s 43(3).
- I accept that Mr Knox’s claim for a refund will necessarily involve questions of law under the Australian Consumer Law. However, there is nothing in the case as currently presented to suggest that such questions are of sufficient complexity to warrant the granting of leave for representation.
- In relation to Mr Knox’s stated lack of familiarity of with the Australian Consumer Law, I note that Mr Knox has attached to his application an extract from a publication titled Motor Vehicle sales and repairs: An industry guide to the Australian Consumer Law, which appears on the Australian Competition and Consumer Commission’s website. While the Tribunal does not endorse any particular publication, I note that this publication outlines relevant provisions of the Australian Consumer Law in straightforward terms.
- Similarly, I accept that issues relating to the claims of excessive oil consumption will necessarily involve questions of fact. These questions are likely to involve expert evidence from a mechanic or other suitably qualified person. However, I have been unable to discern at this point in the proceedings any complex question of fact that would necessitate input from a representative.
- I am not persuaded that it is in the interests of justice to grant leave under s 43 for Mr Knox to be represented in this case. In these circumstances, it is not necessary for me to consider whether Mr Lette is an appropriate person to represent Mr Knox for the purposes of s 43(4)(b) of the QCAT Act.
- The application for leave to be represented is dismissed.
- Section 42 of the QCAT Act relevantly provides for the joinder of parties as follows:
- (1)The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that--
- (a)the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or
- (b)the person's interests may be affected by the proceeding; or
- (c)for another reason, it is desirable that the person be joined as a party to the proceeding.
- (3)The tribunal may make an order under subsection (1) or (2) on the application of a person or on its own initiative.
- The basis stated by Holden for its joinder to the proceedings was:
This dispute relates to alledged (sic) manufacturing defects with the applicants (sic) vehicle. As the vehicle manufacturer, GM Holden request (sic) to be added as joint respondent with Tait Motors Pty Ltd t/a Tait Auto Group.
- While the Tribunal directed Holden to file any further written submissions in support of its application. In a submission dated 1 November 2019, Holden indicated that it wished to be joined ‘in order to advocate our position on our product’.
- Tait indicated its support for the joinder of Holden.
- Mr Knox objected to the joinder of Holden for the following reasons:
Throughout my Dealings Holden has done nothing but hinder my dealings with the Tait motor Group, they instructed the dealer that I was only entitled to a repair.
The contract of sale is between Ken Knox and Tait motor group which under Australian consumer laws are the one’s responsible for replacement, refund or repair.
The Dealership under Australian consumer law can seek damages against the manufacturer, I am not seeking any damages from Holden Australia only against the Tait motor Group as the retailer.
I also believe that Qcat is supposed to be where consumers can get a fair chance to have their case heard against the retailer and adding Holden the manufacturer/importer does not make me feel like I will get a fair hearing.
- A possible outcome of the proceedings is that the Tribunal may decide to order Tait to refund the money paid by Mr Knox for the motor vehicle. Notwithstanding the prefatory language in s 274(2) of the Australian Consumer Law, there is some authority to support the argument that Tait would be entitled to be indemnified by Holden in these circumstances. Section 274(2) relevantly provides:
Without limiting subsection (1), a manufacturer of goods is liable to indemnify a person (the supplier) who supplies the goods to a consumer if:
- (a)the supplier incurs costs because the supplier is liable under this Part for a failure to comply with a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3‑2; and
- (b)the failure is:
- (i)a failure to comply with the guarantee under section 54 [Guarantee as to acceptable quality]; or
- Accordingly, I am satisfied under section 42(1)(b) of the QCAT Act that Holden’s interests may be adversely affected by the outcome of these proceedings.
- However, the joinder of parties under s 42(1) is a discretionary matter. In MGM Containers Pty Ltd v Wockner, Chesterman J (with whom Williams and Keane JJA agreed) summarised the competing factors as follows:
The applications called into question two conflicting principles. The first is that there are good reasons why a third party should be joined in an action where a defendant has an arguable case for contribution or indemnity from the third party against a plaintiff’s claim. Such a joinder ensures finality in litigation, avoids multiple proceedings with associated extra cost, and obviates the possibility that there might be different decisions given on the same issues if tried by different courts. The second principle is that a plaintiff should be allowed to prosecute its action and obtain judgment without being delayed or inconvenienced by the defendant’s endeavours to offset its liability.
- Mr Knox has sought a remedy against Tait. It is inevitable that the joinder of Holden will add to the length and complexity of the proceeding and the hearing, and in turn delay any remedy which might ultimately found to be available to Mr Knox.
- I note that the objects of the QCAT Act include having the Tribunal deal with matters in a manner that is ‘accessible, fair, just, economical, informal and quick’. In the second reading speech to the Queensland Civil and Administrative Tribunal and Other Legislation Amendment Bill 2018 (Qld), the Attorney-General and Minister for Justice also identified the mischief against which the increase in the Tribunal’s jurisdictional limit in relation to motor vehicles was directed:
Unfortunately, what has become clear is that the process of enforcing these rights is difficult for consumers. As Caxton Legal Centre submitted to the 2015 inquiry, while there are remedies available under the ACL, in practice ‘it is clear that purchases often have difficulty enforcing their rights’, ‘especially when there is an argument about whether or not a defect is a major defect under the ACL’. As a result, consumers end up being stuck in a cycle of repairs, being without their car for weeks or even months on end. Consumers spend years of their life going back to dealers and manufacturers each time there is an issue. That is what we are aiming to fix here today.
- Having regard to these objectives, I am persuaded that I should exercise my discretion not to join Holden. In the event that Mr Knox is successful in obtaining a remedy against Tait in the current proceedings, it would be open to Tait to commence separate proceedings against Holden in respect of its cause of action for indemnity should that prove necessary.
- The joinder application is dismissed.
Explanatory Memorandum to the Queensland Civil and Administrative Tribunal Bill 2009.
See Australian Competition and Consumer Commission v Ford Motor Company of Australia Limited  FCA 703, .
 QCA 502, .
QCAT Act, s 3(b).
Queensland, Parliamentary Debates, House of Representatives, 2 April 2019, 975 (Yvette D’Ath, Attorney-General and Minister for Justice).
- Published Case Name:
Kenneth William Knox v Tait Motors Pty Ltd t/as Tait Auto Group
- Shortened Case Name:
Knox v Tait Motors Pty Ltd t/as Tait Auto Group
 QCAT 351
22 Nov 2019