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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Howarth v Bartons Motors Pty Ltd  QCAT 313
DAVID ANTHONY JOSEPH HOWARTH
BARTONS MOTORS PTY LTD
Motor vehicle matters
On the papers
The application for hearing notices filed on 31 March 2020 is dismissed.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – GENERAL MATTERS – DOCUMENTS IN POSSESSION OF NON-PARTY – where hearing notice seeking order for the production of documents from non-party and attendance of witness at hearing – whether documents relevant – whether evidence of witness relevant
Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law, s 54
Fair Trading Act 1989 (Qld), s 50A
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 42, s 63, s 97
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 Howarth filed a Form 59: Application – Motor Vehicle Dispute with the Tribunal on 31 March 2020. The named respondent was Bartons Motors Pty Ltd (‘Bartons’). Mr Howarth’s claim was for a total of $2,019,817.40, which included a component of $1,615,853.92 for exemplary damages. Mr Howarth’s claims were made in respect of his Holden Colorado motor vehicle, which was purchased from Bartons on 16 January 2014.
- I issued directions on 20 May 2020 in the following terms:
- David A. J. Howarth and Bartons Motors Pty Ltd (Bartons Capalaba) will file one (1) copy in the Tribunal and give one (1) copy to the other party written submissions as to why or why not this should not be transferred to the Supreme court or dismissed as the amount claimed is outside of the Tribunal jurisdiction, by: 4:00pm on 27 May 2020.
- The issue of jurisdiction or transfer shall be determined by a member of the Tribunal on the papers, by written submissions from the parties, and without an oral hearing, not before: 4:00pm on 27 May 2020.
- Mr Howarth wrote to the Tribunal on 26 May 2020 in the following terms:
I have been provided verbal advice from the “Queensland Lemon Law advocate” Mr. Stewart Lette that the maximum amount claimable under the tribunal jurisdiction is $100,000 per defect.
I have been informed today by Mr Christopher McKenzie of the Attorney General’s Office of Fair Trading Queensland that the above information has been mis-communicated and is not correct. In that the maximum amount claimable is $100,000 per tribunal case.
Therefore I wish to confirm that I am seeking the maximum amount claimable under QCAT’s jurisdiction in the amount of $100,000.00.
- I issued directions on 4 June 2020 in the following terms:
David A. J. Howarth will file in the Tribunal two (2) copies and give Bartons Motors Pty Ltd (Bartons Capalaba) one (1) copy of an Amended Application – Motor Vehicle Dispute by: 4:00pm on 15 June 2020.
- I note that the direction was in terms limited to service of an amended application on Bartons.
- Mr Howarth filed an amended Form 59 on 15 June 2020. The named respondent was Biscamoss Pty Ltd (‘Biscamoss’), and Mr Howarth’s amended claim was for a total of $100,000. Mr Howarth listed a number of defects, including:
- (a)excessive oil consumption;
- (b)suspension failure;
- (c)defective paintwork;
- (d)improperly labelled fuse board;
- (e)electrical problems causing the motor vehicle to go into limp mode;
- (f)defective right hand front drive shaft seal; and
- (g)fuel economy not in accordance with specifications.
- I note in passing that the amended Form 59 purports to change the name of the respondent from Bartons to Biscamoss. The joinder and removal of parties is dealt with in s 42 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), and relevantly requires an order of the Tribunal.
- I raised with the parties at a directions hearing on 22 July 2020 whether the correct entity for the respondent was Bartons or Biscamoss. The respondent expressed the view that the correct entity was Bartons. Mr Howarth expressed the view that the correct entity was Biscamoss.
- In circumstances where the respondent’s consent was not forthcoming, I advised Mr Howarth that if he wished to pursue removing Bartons as a respondent and adding Biscamoss as a respondent, he would have to file a Form 40: Application for miscellaneous matters. No such order has been sought by Mr Howarth to date, and the respondent remains Bartons.
Application for production of documents and attendance of witness
- Mr Howarth filed a Form 38: Hearing notices: application for notice requiring witness to attend a hearing or produce document/thing at a hearing on 31 March 2020. I will set out in full what Mr Howarth is seeking:
- That the Queensland Office of Fair Trading provide all details/correspondence obtained from GM Holden Pty Ltd Commencing 1st February 2019 to present date, including the following:-
- The total number of complaints and the complete details of all complaints concerning all Holden Colorado’s [sic] with excessive oil consumption within the build dates commencing Oct 2013 inclusive of years 2014, and 2015, and 2016 up until 31st August 2016; and
- Vin ranges of these vehicles; and
- The total numbers and complete details of any engine replacements during the period stated in clause 1.01 above; and
- The total numbers and complete details of any persons who have had replacement vehicles offered in that time; and
- The total numbers and complete details of any person who has been provided with a refund offered in that time.
- That the Queensland Office of Fair Trading provide:-
- A complete copy of the report from the Queensland Office of Fair Trading “Complaint and Intelligence Review” as discussed with QFTQ Mr Christopher McKenzie on 14th June 2019, and all data and correspondence received and reported from that review and reported on to the ACCC for the period 1st February 2019 inclusive to the 5th December 2019.
- Copies of discussion papers between OFT and the ACCC in relation to this subject matter in the period 1st February 2019 to present date.
- Any other applicable information relevant to this matter obtained from GM Holden Pty Ltd and Barton’s Holden between the dates 1st February 2019 and present date as a result of the Office of Fair Trading Queensland investigation into this matter between dates 1st February 2019 to present date.
- That Mr Christopher McKenzie of the Queensland Office of Fair Trading attend my QCAT hearing as a witness to this matter.
- The Tribunal’s powers to order the production of documents are contained in the QCAT Act. Relevantly, s 63(1) provides:
- The Tribunal may make an order requiring a person who is not a party to the proceeding but who has, or is likely to have, in the person’s possession or control a document or other thing relevant to the proceeding to produce the document or thing to –
- the tribunal; or
- a party to the proceeding.
- Section 97(1) provides:
- The tribunal or the principal registrar may, by written notice, require a person to –
- attend at a stated hearing of a proceeding to give evidence; or
- provide a stated document or thing to the tribunal.
- Section 63(1) refers to ‘a document or thing relevant to the proceeding’. Section 97(1) provides that the Tribunal ‘may’ order production of a document, and it is trite to state that the relevance of the document to the proceeding is a factor capable of informing the exercise of the Tribunal’s discretion.
- The nature of the proceedings before the Tribunal is not such that it is conducting a general review of the conduct of either Bartons or General Motors Holden Australia NSC Ltd. Based on the amended Form 59 filed by Mr Howarth, the issue before the Tribunal at the hearing will be whether a single motor vehicle, being the Holden Colorado purchased by Mr Howarth on 16 January 2014, was of acceptable quality as at the date of purchase within the meaning of s 54 of the Australian Consumer Law.
- The documents sought by Mr Howarth relate to complaints made by other owners of Holden Colorados relating to excessive oil consumption, and the manner in which those complaints have been dealt with. Whether or not other owners of Holden Colorados have made complaints about excessive oil consumption does not appear to me to have any direct bearing on whether Mr Howarth’s Holden Colorado experiences excessive oil consumption. In other words, none of the documents sought by Mr Howarth appear on their face to relate to the condition of his particular Holden Colorado. In these circumstances, I am not satisfied that Mr Howarth has established the documents sought are relevant to the proceeding.
- I have also considered whether the documents may be relevant to Mr Howarth’s claim for exemplary damages. Mr Howarth has provided the Tribunal with a paper authored by David Wright, a senior lecturer at the University of Adelaide. Mr Wright made the following observation on the availability of exemplary damages under the Australian Consumer Law:
As the Act’s damages provision is presently written exemplary damages is not available per Musca v Astle Corp Pty Ltd (1988) 80 ALR 251.
- For the reasons stated by Mr Wright, exemplary damages are not available to Mr Howarth under the Australian Consumer Law. The Tribunal’s jurisdiction in the present context is limited to the causes of action under the Australian Consumer Law set out in s 50A of the Fair Trading Act 1989 (Qld). It follows that the documents sought by Mr Howarth are incapable of being relevant to his claim for exemplary damages.
- Section 3(b) of the QCAT Act requires the Tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick. In my view, production of the documents sought by Mr Howarth would not facilitate the just and expeditious resolution of the issues in these proceedings. The resolution of these proceedings will turn on the evidence provided by the parties as to the mechanical condition of Mr Howarth’s Holden Colorado, not those owned by other persons.
- Turning to the issue of whether Christopher McKenzie should be required to attend the hearing to give evidence, Mr Howarth made the following submissions:
The director of the Office of Fair Trading Queensland Mr Christopher McKenzie is well placed to answer questions regarding the OFTQ’s investigation into this matter. Mr McKenzie attended the office of Barton’s Holden Capalaba, and further more is the lead person investigating other complaints I believe to be of the same nature as my own.
- There is nothing on the face of these submissions to indicate that Mr McKenzie has relevant mechanical expertise or has personally undertaken any investigations as to the condition of Mr Howarth’s Holden Colorado. On the basis of the submissions before me, I am not satisfied that Mr Howarth has established that Mr McKenzie is in a position to provide evidence which is relevant to the proceeding.
- The application for hearing notices filed on 31 March 2020 is dismissed.
- Published Case Name:
David Anthony Joseph Howarth v Bartons Motors Pty Ltd
- Shortened Case Name:
Howarth v Bartons Motors Pty Ltd
 QCAT 313
18 Aug 2020