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Grehan v WestPoint Autos Qld Pty Ltd[2022] QCATA 65

Grehan v WestPoint Autos Qld Pty Ltd[2022] QCATA 65

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Grehan & Anor v WestPoint Autos Qld Pty Ltd [2022] QCATA 65

PARTIES:

JAMES GREHAN

(First applicant/appellant)

Amy holzberger

(Second applicant/appellant)

v

WestPoint autos Qld Pty Ltd t/AS Salters cars

(respondent)

APPLICATION NO/S:

APL231-20

ORIGINATING APPLICATION NO/S:

MVL061-19

MATTER TYPE:

Appeals

DELIVERED ON:

17 May 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Howe

ORDERS:

  1. Leave to adduce fresh evidence allowed.
  2. Application to strike out appeal dismissed.
  3. Leave to appeal granted.
  4. Appeal allowed.
  5. The respondent pay the appellants the sum of $2,511.78 within 14 days.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – GUARANTEES, CONDITIONS AND WARRANTIES – where a balance shaft gear failed in a motor vehicle after 6 months of use and 9,000 kilometres travelled – whether the motor vehicle was of acceptable quality as at date of supply – where the wrong test was applied in determining that – where the appellant consumers purported to reject the vehicle – where the vehicle was not of acceptable quality but the failure of guarantee was not major – where the vehicle was sold before appeal – where the appellants were entitled to the cost of repair and sundry amounts only

Competition and Consumer Act 2010 (Cth), Schedule 2, s 54(2), s 54(3),

Australian Competition and Consumer Commission v Mazda Australia Pty Ltd [2021] FCA 1493

Harrison & Anor v Meehan [2017] QCA 315

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1

Stead v State Government Insurance Commission (1986) 161 CLR 141

Williams v Toyota Motor Corporation Australia Limited

[2022] FCA 344

APPEARANCES &

REPRESENTATION:

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

  1. [1]
    The appellants purchased a 2013 Toyota Tarago motor vehicle from the respondent on 6 July 2018 for $24,490. It had travelled approximately 61,000 km.
  2. [2]
    The vehicle had a roadworthy certificate. The appellants required finance to purchase it. The total amount financed was $25,930.
  3. [3]
    The appellants had the vehicle serviced on 25 October 2018 and the vehicle had travelled some additional 9,000 kilometres since purchase when on 13 January 2019 the vehicle’s oil light indicator came on. The vehicle was towed to a Toyota repair shop at Southport next day. Mr Grehan, who was principally involved concerning the matter, was advised that the baseplate of the motor had been removed and material had been found in the oil, believed to be metal. He was told the cost to investigate further would be between $3,000 and $4,000. He was advised that if there was metal in the oil it was likely to have come from a bearing or piston. The extent of any damage would determine cost of repair.
  4. [4]
    Mr Grehan was not prepared to spend the money investigating. Instead Mr Grehan sent an email to the respondent on 15 January 2019 advising the appellants intended to reject the car and he requested a refund for all the costs associated with their purchase, to be detailed by further email. He said the vehicle was rejected because it was not of acceptable quality or free from defects.
  5. [5]
    He received no response.
  6. [6]
    On 18 January 2019 Mr Grehan claimed from the respondent a loss of $31,295.72. He said the vehicle was at the car park of the Toyota dealer’s yard at Southport.
  7. [7]
    By email dated 22 January 2019 Mr Grehan stated his previous email communications constituted his (the appellants) rejection of the car.
  8. [8]
    The respondent asked Mr Grehan for any diagnostic report obtained from the Toyota dealer. Mr Grehan refused to provide anything. Indeed he did not have a diagnostic report, just an invoice for $341.35 for the initial investigation.
  9. [9]
    The respondents collected the vehicle.
  10. [10]
    On 24 January 2019 the respondent advised Mr Grehan a nylon gear in the balance shaft had broken but there was no metal in the engine. It would take three or four days to obtain the part but they were in the process of repairing the engine.
  11. [11]
    On 1 February 2019 the respondent advised Mr Grehan that the fault was not a major fault and he would be required to pay for the repair. The cost was $1367.27.
  12. [12]
    In an invoice from the respondent shortly after (within nine days, including waiting for parts) the work done was described as replacing the balance shaft assembly and timing it to the engine after it had failed.
  13. [13]
    On 6 February 2019 Mr Grehan advised the respondent that the appellants had rejected the vehicle and the respondent had accepted the return of the vehicle by collecting it, regardless of whether or not the fault concerned was a major failure.
  14. [14]
    The respondent replied that the repair costs were required to be paid before the car would be returned to the appellants. They would start charging storage fees from 11 February 2019 if the matter was not resolved. The respondent reduced the claim for the cost of the work to $850 including GST, but the appellants refused to pay anything.
  15. [15]
    On 24 February 2019 Mr Grehan advised the appellants had purchased another vehicle.
  16. [16]
    The appellants commenced proceedings in the minor civil dispute jurisdiction of the Tribunal claiming $25,000 refund of money. The matter was subsequently transferred to the newly formed Motor Vehicles List in the Tribunal. The appellants in result increased their claim to $31, 329 plus interest.
  17. [17]
    The matter was heard on the papers by a member of the Tribunal who dismissed the appellants’ claim.
  18. [18]
    The appellants now seek leave to appeal that decision. Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[1] 
  19. [19]
    The grounds of appeal are not stated with precision. The complaints referred to as grounds of appeal in the initial application for leave to appeal filed 31 July 2020 are more extensive than the grounds listed as grounds of appeal in the appellants submissions on appeal. Some grounds of appeal are merely aspects of another broader ground of appeal. Some grounds of appeal conjoin appropriately disparate grounds of appeal.

Grounds of appeal

  1. [20]
    As best understood the grounds of appeal which address the complaints are as follows:
  1. 1.The tribunal failed to consider evidence filed by the appellants on 29 April 2020 in reaching the final decision;
  1. 2.The applicants were denied procedural fairness when the tribunal moved to a decision on the papers without alerting the parties to allow for written submissions to be filed;
  1. 3.The tribunal failed to apply the correct test pursuant to section 54 of the ACL;
  1. 4.The tribunal failed to consider whether the car was durable pursuant to section 54(2)(e) of the Australian Consumer Law;
  1. 5.The tribunal further erred in finding there was insufficient evidence to satisfy the tribunal the vehicle was not of acceptable quality at the time of supply;
  1. 6.The tribunal failed to consider whether an accumulation of defects when taken as a whole constituted a major failure;
  1. 7.The tribunal erred in finding there was no evidence the brake pads needed replacing at the time of purchase;
  1. 8.The tribunal erred in finding there was no evidence the spare tire needed replacing at the time of supply;
  1. 9.The tribunal erred in finding there was insufficient evidence to infer the defect with the balance shaft gears was present at the date of supply and that it was incumbent on the applicants to prove the cause of the problem.
  1. [21]
    Grounds one, two and three concern errors of law.
  2. [22]
    The remaining grounds concern errors of fact or mixed law and fact.
  3. [23]
    Leave to appeal is not necessary with respect to questions of law. Leave is necessary where the appeal concerns questions of fact or mixed law and fact. If leave is given, the appeal proceeds by way of rehearing. That is not the case with respect to an appeal dealing with a question of law.
  4. [24]
    Given that dichotomy, and in light of my finding below that leave to appeal should be granted, the errors of claimed fact or mixed law and fact would usually be addressed first, and after granting leave, the appeal proceed by way of rehearing with all questions addressed in the rehearing process, including the questions of law.[2]
  5. [25]
    However, necessarily, ground three, that the tribunal failed to apply the correct test pursuant to s 54 of the ACL, is the appropriate ground to be considered first.
  6. [26]
    I note there is an application by the appellants for leave to adduce fresh evidence at the appeal, and also an application by the respondent to strike out the appeal.
  7. [27]
    For reasons given below, the application to strike out the appeal is dismissed, but the application to adduce fresh evidence is allowed in part.

Ground three – The tribunal failed to apply the correct test pursuant to section 54 of the ACL;

  1. [28]
    Competition and Consumer Act 2010 (Cth) Schedule 2 (‘ACL’)

54 Guarantee as to acceptable quality

  1. (1)
    If:
    1. (e)
      a person supplies, in trade or commerce, goods to a consumer; and
    1. (e)
      the supply does not occur by way of sale by auction;

there is a guarantee that the goods are of acceptable quality.

  1. (2)
    Goods are of acceptable quality if they are as:
    1. (e)
      fit for all the purposes for which goods of that kind are commonly supplied; and
    2. (e)
      acceptable in appearance and finish; and
    3. (e)
      free from defects; and
    4. (e)
      safe; and
    5. (e)
      durable;

as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).

  1. (3)
    The matters for the purposes of subsection (2) are:
    1. (e)
      the nature of the goods; and
    2. (e)
      the price of the goods (if relevant); and
    3. (e)
      any statements made about the goods on any packaging or label on the goods; and
    4. (e)
      any representation made about the goods by the supplier or manufacturer of the goods;
    5. (e)
      any other relevant circumstances relating to the supply of the goods.
  1. [29]
    The learned member said this in his reasons for decision:

[22] I am not satisfied that having to replace the rear brake pads in a second hand vehicle amounts to a defect, or otherwise amounts to the motor vehicle as being not of acceptable quality. The vehicle had driven 6,779 km since purchase, and 67,952 km in total. There is no evidence that the brake pads needed replacing at the time of supply.

[23] Similarly, I am not satisfied that having to replace a tyre in these circumstances amounts to a defect, or otherwise amounts to the motor vehicle as being not of acceptable quality. There is no evidence that the tyre needed replacing at the time of supply. I am not satisfied that the steering shaft having been replaced prior to supply amounts to a defect, or otherwise amounts to the motor vehicle as being not of acceptable quality. To the contrary, failure to replace the steering shaft may have amounted to a defect. There is no evidence that the respondent made representations relating to the steering shaft prior to supply, or that the applicants experienced difficulties with the steering shaft after supply.

[24] I am satisfied that the applicants experienced a problem with oil pressure in the engine on 13 January 2019. However, there is insufficient evidence to enable me to be satisfied that there was a defect in existence at the time of supply, or that the motor vehicle was otherwise not of acceptable quality at that time. In particular:

(a) despite me directing the filing of witness statements, “including any expert”, no expert evidence was filed by the applicants; and

(b) the mechanic from Grand Motors, who did not provide evidence but was quoted by the applicant, stated there was no way of knowing which of the possibilities he enumerated was the cause of the problem.

[26] If there is no way of knowing what the cause of the problem was, it follows that there is no way of me being satisfied that the motor vehicle was not of acceptable quality at the time of supply.

[27] The respondent’s evidence was that the balance shaft required replacement. The applicants submitted:

The engine of the car was not free from defects because the balance shaft gears failed within 6 months of the purchase and the Applicants submit this defect was present at the time of the purchase because it is more likely than not that the balance shaft gears wore over the previous five years and 62,000 km than it is they were perfectly fine at the time of purchase and wore and failed over the preceding ,000 km (sic) and six months.

[28] In Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44 and ACH Computing Pty Ltd v Austral Pty Ltd trading as Brisbane City Jaguar Land Rover [2020] QCAT 176, I was prepared to infer that defects were present at the date of supply where the defects manifested themselves within a short period after supply. However, in the absence of expert evidence, I am not prepared to make a similar inference in the circumstances of this case where the defect did not manifest itself until over six months after the date of supply. As noted above, no such expert evidence was provided.

[29] On the basis of the evidence before me, I am therefore not satisfied that a reasonable consumer fully acquainted with the state of the motor vehicle at the time of purchase would not regard the motor vehicle as being of acceptable quality as at the time of supply.[3]

  1. [30]
    The appellants contend that the member applied the incorrect test in determining whether the vehicle was of acceptable quality pursuant to s 54 ACL. They submit the member failed to consider all aspects of the correct test, in particular, whether the goods were durable as required by s 54(2)(e). 
  2. [31]
    The member said:

If there is no way of knowing what the cause of the problem was, it follows that there is no way of me being satisfied that the motor vehicle was not of acceptable quality at the time of supply.

  1. [32]
    The test set out in s 54 ACL is not whether it can be established that goods had a particular and identifiable defect as at date of supply. That may not be possible to establish, yet the goods may still be defective based on one of the s 54(2) factors not being satisfied, such as whether the goods are free from defects or durable.
  2. [33]
    As explained by the Federal Court recently in Williams v Toyota Motor Corporation Australia Limited:[4]

The continued use of the conjunction “and” in s 54(2) makes clear that goods must possess all of the qualities listed in s 54(2), to the requisite standard, in order to comply with the guarantee of acceptable quality. Failure to possess any one of those qualities will result in a failure to comply with the guarantee: see Vautin v By Winddown, Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426; (2018) 362 ALR 702 (at 732 [142(d)–(f)] per Derrington J); Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672 (at [25] per Wheelahan J).[5]

  1. [34]
    The appellants argue the vehicle was not of acceptable quality because it was not durable.
  2. [35]
    The member did not consider whether the vehicle was not of acceptable quality because it failed the durability test in s 54(2). Instead the member limited his assessment of acceptable quality to whether he was able to determine the cause of the problem with the vehicle at the time of supply. He was not and on that basis and only that basis concluded the appellants’ claim was not made out. The learned member applied the wrong test. Accordingly the learned member fell into error.
  3. [36]
    The appeal on this ground must be allowed.
  4. [37]
    It follows that leave to appeal in respect of ground four, that the tribunal failed to consider whether the car was durable pursuant to section 54(2)(e) of the Australian Consumer Law, is appropriately given and the appeal continues by way of rehearing.

The appeal

Grounds of appeal of errors of fact and mixed law and fact

  1. [38]
    All grounds of appeal concerning error of fact or mixed law and fact narrow to one primary issue, whether or not the vehicle was of acceptable quality in terms of s 54 ACL. They are appropriately addressed collectively.
  2. [39]
    What was the evidence?
  3. [40]
    The appellants paid $24,990 for a 2013 Toyota Tarago motor vehicle which had travelled 61,000 kilometres. It was a family transport vehicle. The appellants considered the mileage low. The logbooks showed the car had been regularly serviced.
  4. [41]
    It is not contested that the appellants were told by a sales representative when purchasing the vehicle that they were getting the vehicle for a good price. That representation perhaps suggested not only some form of bargain, but also that the appellants were getting good value for their money. The cost was significant to the appellants – they had to borrow to finance the purchase.
  5. [42]
    They were also told the vehicle had been serviced recently. The appellants serviced the vehicle again within 3 months of purchase. It was used to drive the appellants’ children to school and daycare.
  6. [43]
    The vehicle presented well, without dents or marked wear.
  7. [44]
    However the brake pads required replacing only three months after purchase.
  8. [45]
    The rear windscreen wiper needed to be replaced because it was too long to work properly.
  9. [46]
    The spare tire was defective and had to be replaced.
  10. [47]
    The oil light came on and the car was not running well. The Toyota dealer suggested there could be a big issue with the engine. There would be significant costs involved in finding out what was wrong, something like $3,000 to $4,000.
  11. [48]
    The car’s steering shaft had had to be replaced prior to purchase which was not disclosed to the appellants.
  12. [49]
    The goods must be of acceptable quality as at time of supply but from the standpoint explained in Williams v Toyota Motor Corporation Australia Limited:

The applicable standard of “acceptable quality” is to be determined by reference to what the “reasonable consumer” would regard as acceptable, having regard to the matters in s 54(3). The relevant enquiry is necessarily objective: Medtel Pty Ltd v Courtney [2003] FCAFC 151; (2003) 130 FCR 182 (at 199 [43] per Moore J, 205 [64] and 207 [72] per Branson J, with whom Jacobson J agreed at 209 [81]); Capic (at 265 [105]).[6]

…

In determining whether the “reasonable consumer” would regard the goods as acceptable at the time of supply, one must assume that the construct is “fully acquainted with the state and condition of the goods (including any hidden defects of the goods)”: s 54(2) of the ACL; see also Medtel (at 205–206 [65]–[70]). [7]

  1. [50]
    I do not consider that a relevant factor known now, but not at time of purchase, was that the vehicle had had the steering shaft replaced prior to supply. That seems irrelevant to me given it subsequently performed appropriately and has no bearing on the main problem with the vehicle, the balance shaft gear.
  2. [51]
    As to the complaints about the brake pads, the rear windscreen wiper and the spare tyre, I do not consider these relatively minor things, though annoying, made the vehicle of unacceptable quality, even taken together.
  3. [52]
    Whilst the rear brake pads needed replacing within 3 months, there is no evidence that the pads were not adequate as at date of sale. As stated, the other things may have been annoying but did not make the vehicle of unacceptable quality within the parameters of s 54.
  4. [53]
    However, when the oil warning light came on and the vehicle was performing poorly, I accept it was prudent of the appellants not to drive the vehicle until the problem was addressed less further damage be occasioned. 
  5. [54]
    When the engine oil light came on Mr Grehan immediately took the vehicle to a Toyota dealer. The dealer suggested metal fragments had been found in the engine oil, suggesting a problem with a piston or bearing. The extent of the problem was unknown and the cost to investigate was quoted as some $3,000 to $4,000. That prompted Mr Grehan to advise the respondent that the appellants rejected the vehicle on the basis of a major defect.
  6. [55]
    Eventually the defect was identified by the respondent as a defective balance shaft gear and rectified. I note, whilst the appellants describe this problem throughout their material as an issue of the balance shaft gears, it seems there was only one gear which failed, and that was made of nylon.
  7. [56]
    Whilst the repairs done by the respondent established what the problem was and that it was not that suggested by the Toyota dealer, I find that a reasonable consumer, fully acquainted with the state and condition of the vehicle presented as at date of supply the service history, the representation about the vehicle being a bargain and the limited kilometres travelled after purchase would not accept that the vehicle was free from defects or durable within the meaning of s 54(2) as at date of supply given the failed balance shaft gear.
  8. [57]
    The appellants were entitled to expect the vehicle to be functioning without significant mechanical problems when the issue with the oil light and failed balance shaft gear arose. The cause of that failure is unexplained. However there was nothing extraordinary about the appellants’ use of the vehicle that might reasonably be suggested as contributing to the defect.  Rather the opposite.
  9. [58]
    Given the defect was hidden in the motor, the submission by the respondent that there was no mention of the problem on the safety certificate issued at or before time of supply is rather meaningless.
  10. [59]
    I determine it is more likely than not that the defect existed in the vehicle as at date of supply. The failed gear is described as worn and stripped on the teeth in the respondent’s workshop notes.[8] This is suggestive of long term rather than sudden failure perhaps.
  11. [60]
    I conclude that the guarantee as to acceptable quality was breached as at time of supply.
  12. [61]
    The remedies available consequent on that breach depend on whether or not the failure to comply with the guarantee could not be remedied or was a major failure, or whether it could be remedied and was not a major failure.
  13. [62]
    The appellants thought the issue with the oil light and a noise in the engine was a major failure. They purported to reject the goods and demanded return of their purchase price and more. I find they were not entitled to do that. I find the failure was not a major failure.
  14. [63]
    By s 260 ACL:

When a failure to comply with a guarantee is a major failure

A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if:

  1. (a)
    the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

…

  1. (c)
    the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

…

  1. (e)
    the goods are not of acceptable quality because they are unsafe.
  1. [64]
    Once the vehicle was back with the respondent, the problem with the balance shaft gear was identified and the defective gear replaced. That took 9 days in total, including time to recover the vehicle from the dealer’s yard and obtain parts.  I do not consider that an excessive time.
  2. [65]
    The cost was not unduly excessive either, $1,083.20 including GST. I determine that a reasonable consumer fully acquainted with the nature and extent of the failure with the balance shaft gear would still have acquired the goods (with the repair performed by and paid by the respondent).[9]
  3. [66]
    The appellants acted precipitously in rejecting the vehicle on the basis of major failure of guarantee. They rejected the vehicle without giving the respondent an opportunity to investigate or repair. They had no expert evidence to support their belief that there was a significant perhaps irremediable problem with the engine, merely an initial cursory inspection at the Toyota workshop, which was inconclusive and the suggested problem a matter of conjecture only, and that it was conjecture was made clear.
  4. [67]
    The respondent did not refuse to investigate the problem or to remedy the problem prior to the appellants purporting to reject the car.
  5. [68]
    The appellants were not entitled to reject the vehicle on the basis of major failure. Accordingly the respondent was entitled to investigate the problem and remedy the problem within a reasonable time if possible, which was done.
  6. [69]
    Whilst the respondent was correct in maintaining that the problem was not a major failure, the respondent was wrong however to then demand payment to repair the failed balance shaft gear. That repair cost was the responsibility of the respondent as supplier who breached the guarantee of acceptable quality.[10]
  7. [70]
    The appellants sold the vehicle after the hearing below and before the hearing of this appeal. This is the basis of the application to strike out the appeal by the respondent. The respondent maintains there is no further utility in the proceedings given the appellants seek recovery of the purchase price paid and yet the concomitant obligation on the appellants is to return the vehicle, which they cannot now do.
  8. [71]
    The appeal proceedings do have utility however. The appellants are entitled to recover the money they have been obliged to pay to recover the vehicle to enable them to sell it. The appellants should not have had to pay for the repair. That was the responsibility of the respondent. They are also entitled to recover the storage charges additionally levied by the respondent.
  9. [72]
    The appellants application to adduce fresh evidence concerned evidence of the charges made by the respondent for the repair of the balance shaft gear and the storage fees. The evidence arose after the hearing below and is relevant to determine the amount recoverable by the appellants on appeal. Similarly the fresh evidence of emails calling on the respondent to release the vehicle. Leave to adduce those documents as fresh evidence is granted.
  10. [73]
    The appellants are entitled to recover $2,170.43, representing cost of repairs of $1,083.20 and the storage charges.
  11. [74]
    The appellants are also entitled to recover as damages the costs charged them by the Toyota dealer to investigate the oil light problem, which was reasonable and necessary. That was $341.35. That makes a total of $2,511.78.

Errors of law – grounds one and two

  1. [75]
    Finally, I address the errors of law claimed. They are made out.

Ground one

The tribunal failed to consider evidence filed by the appellants on 29 April 2020 in reaching the final decision;

Ground two

The applicants were denied procedural fairness when the tribunal moved to a decision on the papers without alerting the parties to allow for written submissions to be filed;

  1. [76]
    The learned member said in his reasons for decision that the respondent had filed a single invoice with accompanying notes on 23 March 2020 as evidence, but the appellants had filed no evidence in reply. In fact the appellants had filed evidence on 29 April 2020. It appears the registry failed to place it on file and therefore it was not considered by the member.
  2. [77]
    The evidence concerned the respondent’s workshop notes recording and expanding on the description of work performed by the respondent when it found the balance drive shaft gear failed. 
  3. [78]
    The notes mention the complaint being investigated was noise in the engine and went on to note:

balance shaft nylon gear (worn/broken teeth). Replaced balance shaft gear. Flushed engine oil and cleared sump. Refitted. Test. Oil pressure okay. Road test vehicle and rechecked. No further fault noted.

  1. [79]
    Additionally there was an article published on a Toyota website about how long Toyota brake pads last, and an extract from Wikipedia concerning balance shafts.
  2. [80]
    At least with respect to the workshop notes, this was relevant evidence and the failure of the member to consider it, regardless how that came about, an error of law.
  3. [81]
    Concerning the claim that the appellants were denied procedural fairness, again I find this ground of appeal made out.
  4. [82]
    By directions dated 20 April, 2020 the member directed the parties to make submissions addressing whether the proceedings could be decided on the papers on the basis of the statements of evidence, submissions and other documents filed by the parties, or whether it should be decided by way of telephone hearing.
  5. [83]
    The applicants had previously submitted significant material on 3 March 2020, including submissions, in a bundle comprising some 109 pages.
  6. [84]
    The applicants responded on 5 May 2020 in writing that the matter could be heard on the papers with submissions from the parties. The applicants added a request for an opportunity to provide the Tribunal with written submissions should the matter be determined on the papers.
  7. [85]
    The applicants further requested, specifically, the opportunity to provide the Tribunal with written submissions should the matter be determined on the papers.
  8. [86]
    On 15 May, 2020 the learned member directed that the application be determined on the papers by written submissions from the parties, and without an oral hearing.
  9. [87]
    No further directions were made however, either generally or specifically advising a date by which the parties were to file submissions. Rather, the next contact from the tribunal was the member’s decision made on the papers on 24 July 2020 dismissing the application.
  10. [88]
    In the reasons for decision the learned member said this about submissions:

I directed that the application be heard on the papers on 15 May 2020. No provision was made for the filing of written submissions, given that the applicants had already filed extensive written submissions, but nor did I preclude the filing of further written submissions. No further written submissions have been filed, and no application was made by the applicants for the filing of such submissions.[11]

  1. [89]
    The learned member clearly understood the applicants desired to file additional submissions to those already filed on 3 March 2020.
  2. [90]
    Directions made in proceedings in the tribunal invariably nominate a date by which a party is to comply. Upon perusal of the directions made in the matter to hand MVL061–19 shows that that occurred throughout the course of the matter prior to decision.
  3. [91]
    The applicants maintain they awaited directions about filing further submissions but instead the decision was handed down without them being accorded the opportunity. I accept that.
  4. [92]
    It was not procedurally unfair to adopt this course if allowing submissions would have made no practical difference. In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 Gleeson CJ said:

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.[12]

  1. [93]
    Had the applicants been advised that they would not have the opportunity to make further submissions if the matter proceeded on the papers, it is reasonable to assume that they would have chosen a hearing in person at which closing submissions would be permitted as of course.
  2. [94]
    In Ex parte Lam the comments of Gleeson CJ above were preceded by the following example:

A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu[16] was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs[17]. A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness.[13]

  1. [95]
    The appellants had reasonable expectation that they would be given the opportunity to make submissions. They were not accorded such opportunity and thereby they were denied procedural fairness.
  2. [96]
    That finding holds despite comments in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 excepting in exceptional case the general principle that everybody is entitled to a fair trial and an opportunity to put one’s case properly:

… that general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.

10. For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

11. Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact (Supreme Court Rules O.58 rr.6 and 14). However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.[14]

  1. [97]
    Had the applicants been given the opportunity to make further submissions prior to the decision on the papers, would the outcome have been different? I cannot say. As such this ground of appeal succeeds.

Orders

  1. [98]
    It is not necessary to return the matter for further consideration by the Tribunal.
  2. [99]
    The appropriate order is that the respondent pay to the appellants the sum of $2,511.78 within 14 days.

Footnotes

[1] Pickering v McArthur [2005] QCA 294.

[2] Harrison & Anor v Meehan [2017] QCA 315 [50] per McMurdo JA.

[3] Grehan & Anor v Westpoint Autos QLD Pty Ltd trading as Salters Cars [2020] QCAT 275.

[4]  [2022] FCA 344

[5]  [164]

[6]  [165].

[7]  [166] and see Australian Competition and Consumer Commission v Mazda Australia Pty Ltd [2021] FCA 1493 [101].

[8]  This evidence was filed but not put before the member by the registry, concerning which see below

[9]  s 260(a) ACL.

[10]  s 259(2)(a) ACL.

[11] Grehan & Anor v Westpoint Autos QLD Pty Ltd trading as Salters Cars [2020] QCAT 275 [15].

[12]  [37].

[13]  [37]

[14]  [9-11]

Close

Editorial Notes

  • Published Case Name:

    Grehan & Anor v WestPoint Autos Qld Pty Ltd

  • Shortened Case Name:

    Grehan v WestPoint Autos Qld Pty Ltd

  • MNC:

    [2022] QCATA 65

  • Court:

    QCATA

  • Judge(s):

    A/Senior Member Howe

  • Date:

    17 May 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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Australian Competition and Consumer Commission v Mazda Australia Pty Ltd [2021] FCA 1493
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Grehan v Westpoint Autos QLD Pty Ltd trading as Salters Cars [2020] QCAT 275
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Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44
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Harrison v Meehan [2017] QCA 315
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Medtel Pty Ltd v Courtney (2003) 130 FCR 182
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Medtel Pty Ltd v Courtney [2003] FCAFC 151
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Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1
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Cite 1 - (2003) 214 CLR 1
Pickering v McArthur [2005] QCA 294
1 citation
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Cite 1 - [2005] QCA 294
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6
1 citation
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Cite 1 - [2003] HCA 6
Stead v State Government Insurance Commission (1986) 161 CLR 141
2 citations
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Cite 1 - (1986) 161 CLR 141
Cite 2 - (1986) 161 CLR 141
Stead v State Government Insurance Commission (1986) HCA 54
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Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) (2018) 362 ALR 702
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Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426
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Williams v Toyota Motor Corporation Australia Limited [2022] FCA 344
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Cite 2 - [2022] FCA 344

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Moroney v Auto Corner Pty Ltd t/as Mazda Mackay [2022] QCAT 2052 citations
PPAJP Pty Ltd v Oldmac Mazda Pty Ltd [2023] QCAT 3242 citations
1

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