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Symon v Volkswagen Group Australia Pty Ltd QCATA 149
Symon v Volkswagen Group Australia Pty Ltd  QCATA 149
Volkswagen Group Australia Pty Ltd
On the papers
Senior Member Stilgoe OAM
11 October 2016
APPEAL – LEAVE TO APPEAL – PROCEDURE – where hearing adjourned – where second hearing conducted by a differently constituted tribunal – whether grounds for leave to appeal
APPEAL – LEAVE TO APPEAL –GENERAL PRINCIPLES – ERROR OF LAW– where failure to give proper reasons for decision – where submissions as to whether vehicle fit for purpose – where tribunal did not decide that issue – whether grounds for leave to appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur  QCA 294
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404
Chambers v Jobling (1986) 7 NSWLR 1
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- Robert Symon bought a new 2015 Tourag V6 TDI 150 from Fraser Coast Volkswagen. The Tourag was advertised as having ‘dual zone automatic climate control air conditioning’. Mr Symon asserted that his air conditioning does not operate as promised because, when the Tourag is stopped at traffic lights, the engine shuts down and then the air conditioning shuts down.
- Mr Symon asserted that the Tourag was, therefore, not fit for purpose. He wanted the tribunal to order that Volkswagen Group Australia Pty Ltd enable the air conditioning to function as advertised. The tribunal dismissed Mr Symon’s claim.
- Mr Symon wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
- Mr Symon says the tribunal erred in adjourning the hearing to a tribunal that was not made up of the same members as the first tribunal. He says the second tribunal treated the case as a brand new hearing, had not read the outcome of the first hearing, and ignored the evidence presented in the first hearing.
- Mr Symon also says the tribunal wrongly found he was ‘responsible’ for the defect in the car because he knew that it had a stop start system. He says that the rule ‘caveat emptor’ applies only to the sale of used cars and not new cars.
- Mr Symon also says the tribunal was dismissive and/or angry that he had no idea of the value of his claim.
Did the tribunal err in a differently constituted tribunal presiding over the second hearing?
- Ordinarily, if it is part-heard, a dispute is referred back to the same tribunal members. The position is somewhat complicated when Justices of the Peace constitute the tribunal, as it may be months before the same tribunal members are together again. This was, apparently, not a problem for Mr Symon: the tribunal adjourned the hearing to a date to be fixed and granted him leave to appear by telephone.
- I have the transcripts of both hearings. At the end of the first hearing, the tribunal adjourned so that Mr Dowling, VW’s representative, could provide a report detailing the effect modifying the ECU may have on the car’s statutory warranty. VW was also required to identify what any modified warranty would cover and what would be excluded.
- The tribunal acknowledged that order at the start of the second hearing. The tribunal also noted that it was differently constituted and apologised to Mr Symon for that oversight. It acknowledged that it did not know of some matters that Mr Symon raised in the first hearing but it is clear from the transcript that the second tribunal understood the nature of Mr Symon’s complaint and the remedy that he wanted.
- In fact, most of the evidence was not in dispute:
- the car had start/stop technology;
- the air-conditioning was a climate control system;
- the air-conditioning stops when the engine stops until the air temperature in the cabin is 8 degrees above ambient temperature;
- in sub-tropical conditions, Mr Symon found the increase in cabin temperature uncomfortable;
- the driver can manually override the start/stop technology, which will keep the air-conditioning running;
- Mr Symon wanted to permanently override the start/stop technology without impacting his manufacturer’s warranty.
- Mr Symon told the second tribunal that he thought the last hearing concluded with an order that VW would change his car but first it needed to find out what part of the warranty would be forfeited or whether other options were available. I do not read the first tribunal’s order that way.
- The only difference in the evidence presented at the two hearings was the report from VW. That was not available at the first hearing and that is why the hearing was adjourned. The report demonstrated, from VW’s perspective, that stop/start system could not be disabled and that there were no other alternatives.
- Once it was established that the relief Mr Symon thought he was getting from the first hearing was not possible, the fact that the dispute was heard by differently constituted tribunal was irrelevant. The tribunal had new evidence it had to make sense of. Although a hearing by a different tribunal was not ideal, it was not a failure to provide procedural fairness and, therefore, not a successful ground of appeal.
- It is true that VW was tardy in the production of the report, although I note that the first tribunal did not fix a date for its delivery. It was right for the second tribunal to take this evidence and, as Mr Symon puts it, treat this as a brand new case; that is, to consider this new evidence and ask for submissions. Although the report was late, Mr Symon was able to speak to it. Again, I am not satisfied that Mr Symon did not receive procedural fairness.
Did the tribunal wrongly find Mr Symon was ‘responsible’ for the defect in the car?
- Mr Symon says that the principle of caveat emptor does not apply to his purchase of the car. The only reference to that principle is by Mr Symon himself, in submissions. It does not form part of the tribunal’s decision.
- The tribunal found that the car was operating as intended and that Mr Symon was aware of that fact. That is not a finding that Mr Symon was ‘responsible’ for the defect.
- However, Mr Symon did frame his claim by reference to whether the car matched the description or was fit for purpose. The tribunal did not examine these submissions. The failure to deal with a submission, and the failure to give reasons, is an error of law for which leave to appeal should be granted and the appeal allowed.
- The appeal tribunal can only substitute its own decision if the determination of the question of law is capable of resolving the matter as a whole.
- All Mr Symon ever wanted was for VW to disable the stop/start system and honour its warranty in full. The tribunal was obliged to consider whether Mr Symon’s claim fell within Part 5-4 of The Australian Consumer Law. The tribunal did not undertake that exercise and, as the exercise involves conclusions of fact, I cannot undertake it here.
- Mr Symon’s complaint that the tribunal was angry that he did not know the value of his claim is illuminating. It is clear that the tribunal did have Part 5-4 of The Australian Consumer Law in mind but did not tell Mr Symon why it was important.
- Leave to appeal should be granted and the appeal allowed. The proceeding is returned to the tribunal with the following directions:
- Mr Symon shall file and serve submissions as to the remedy he seeks, having regard to s 259 of The Australian Consumer Law, together with any evidence to support his claim, by [21 days]
- Volkswagen Group Australia Pty Ltd shall file and serve submissions and/or evidence in response by [21 days].
 QCAT Act s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
 Transcript page 1-3, lines 10 – 16.
 Transcript 25 February 2016 page 1-10, lines 31 – 36.
 Transcript 25 February 2016 page 1-10, lines 13 – 20.
 Transcript 25 February 2016 page 1-10, lines 41 – 42.
 Transcript 25 February 2016 page 1-10, lines 9 – 20.
 Transcript 25 February 2016 page 1-5, lines 45 – 47.
 Transcript 25 February 2016 page 1-14, lines 39 – 41.
 Ericson v Queensland Building Services Authority  QCA 391 at .
- Published Case Name:
Symon v Volkswagen Group Australia Pty Ltd
- Shortened Case Name:
Symon v Volkswagen Group Australia Pty Ltd
 QCATA 149
Senior Member Stilgoe OAM
11 Oct 2016