Parvez v Brisbane BMW[2024] QCATA 107

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Muhammad Parvez took his car to be serviced by Brisbane BMW in December 2020. He was not happy with the car’s performance after the service and so took it to Bavaria Motors in May 2021 and Eurozone in July 2021.
2. [2]
   In December 2021, Mr Parvez noticed an amber light on the dashboard which, on investigation, he found indicated that the car’s engine oil was overfilled.
3. [3]
   Mr Parvez claimed that Brisbane BMW had overfilled his engine oil, contrary to its obligation under the Australian Consumer Law^[1] (ACL) and caused ongoing damage to the car’s engine. Mr Parvez commenced proceedings in the Tribunal and sought orders that Brisbane BMW rectify the damage. Mr Parvez’s application was dismissed.
4. [4]
   Mr Parvez 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.^[2] 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.^[3]
5. [5]
   Mr Parvez says that the learned Adjudicator erred on the following grounds:

1. (a)
   Finding that the engine oil was overfilled by a different mechanic, Bavaria Motors, and drawing that inference from a receipt which indicated that the mechanic had charged a $13.20 miscellaneous fee;
2. (b)
   Relying on the Respondent’s statements as expert evidence;
3. (c)
   Not providing sufficient notice of the Respondent’s witness, therefore preventing Mr Parvez from preparing a cross examination;
4. (d)
   Relying on the Respondent’s expert witnesses’ evidence;
5. (e)
   Ignoring that Brisbane BMW failed to create a report when removing overfilled oil; and
6. (f)
   Considering the car’s warranty period when the claim concerned consumer guarantees under the ACL.

1. [6]
   Mr Parvez also wishes to file new evidence to assist his appeal. He wants to file a statutory declaration sworn by Mr Mick Sadler, who says he is the owner/manager of Bavaria Motors.
2. [7]
   The appeals Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Parvez have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?^[4]
3. [8]
   Mr Parvez first says that the evidence was not available at the original hearing because Brisbane BMW had not filed a written response to his submissions, nor raised the issue before the hearing. This, in my view, is not a sufficient reason.
4. [9]
   Mr Parvez’s own evidence showed that Bavaria Motors had dealt with the car after the Brisbane BMW service in question. It is not enough, in my view, to say that Mr Parvez did not understand the importance of the evidence because Brisbane BMW had not submitted a written report. Mr Parvez had the onus of proving that Brisbane BMW caused the damage to his car’s engine. It should have been apparent to Mr Parvez that Bavaria Motors’ evidence about the state of the engine five months after that service was important.
5. [10]
   Mr Sadler states that Bavaria Motors worked on the car’s transmission, did not carry out any service or engine repairs, and did not check the oil level. Mr Sadler cannot, and does not, swear to the condition of the engine or the oil level.
6. [11]
   Mr Sadler’s statement might have an important impact on the result of the case if the Tribunal found, as Mr Parvez suggests, that Bavaria was responsible for the overfilling. The Tribunal did not make that finding. Mr Sadler’s statement does not have an important impact on the result of the case.
7. [12]
   An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Mr Parvez has provided no explanation as to why this material was not available earlier. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator.

Leave to appeal?

Finding that Bavaria Motor had overfilled the engine oil

13. [13]
    Mr Parvez argues that the Tribunal erred in finding that Bavaria Motor had overfilled the engine oil. He says that the Adjudicator supported this finding by erroneously inferring that a $13.20 charge listed on a receipt provided to the Tribunal could have been a charge for oil.
14. [14]
    An appeal tribunal should generally not interfere with the findings of fact made in a first instance decision,^[5] except where those findings of fact are demonstrated to be wrong by incontrovertible facts, or if they are contrary to compelling inferences.^[6] There is no error of law simply in making a wrong finding of fact unless there is no evidence to support that finding.^[7]
15. [15]
    At the hearing, Brisbane BMW led comprehensive documentary and witness evidence to support its claim that the car had been filled with the correct amount of oil.
16. [16]
    A receipt from Bavaria Motor contained a $13.20 charge for “workshop consumables” but did not specify whether this was for engine oil or other miscellaneous items. The learned Adjudicator noted that it was possible that this represented a charge for engine oil but stipulated that it was ‘speculative’.^[8]
17. [17]
    The learned Adjudicator considered that another mechanic topping up the engine was a reasonable hypothesis, and that it was possible that Bavaria Motor was responsible.^[9] However, the transcript shows that they explicitly did not decide whether that had occurred.^[10]
18. [18]
    Rather, the learned Adjudicator (in my view correctly) clarified that the only finding they were required to make was whether Brisbane BMW had overfilled the engine at the original service. In my view, the learned Adjudicator did not make the finding of fact contested by Mr Parvez and made a point of not doing so.
19. [19]
    Accordingly, leave to appeal on these grounds is refused.

Respondent’s expert witnesses

20. [20]
    Mr Parvez asserts that the learned Adjudicator erred by:

1. (a)
   Accepting evidence from Mr Chris Baiao as an expert witness;
2. (b)
   Accepting Mr Baiao’s evidence as credible;
3. (c)
   Accepting evidence from Mr Matthew Cotterill; and
4. (d)
   Accepting Mr Cotterill’s evidence as credible.

20. [21]
    Mr Baiao was the mechanic who serviced Mr Parvez’s car at Brisbane BMW. He gave a statutory declaration to the effect that he had filled Mr Parvez’s car engine with 6.7 litres of oil, which he said (and it was not contested) was the recommended level for the car.
21. [22]
    During the hearing, Mr Baiao was cross examined by Mr Parvez and questioned by the learned Adjudicator. He gave evidence about his involvement in the service and his records of the amount of oil used.
22. [23]
    He gave evidence of his qualifications to the Tribunal, which included over 15 years as a licensed mechanic with BMW. The learned Adjudicator was satisfied that Mr Baiao had sufficient expertise to give expert evidence. Accordingly, he gave evidence of a technical nature about the technology and sensors used within cars to detect engine oil levels.
23. [24]
    Mr Cotterill appeared at the hearing for Brisbane BMW. Brisbane BMW’s representative, Mr Kiem, stated that Mr Cotterill had attended to provide evidence on technical matters^[11]. Mr Cotterill is a manager of Brisbane BMW and is a qualified mechanic with over 19 years’ experience with BMW. Upon satisfying the Tribunal of his expertise, he gave evidence on the oil overfill detection systems, the practices of mechanics, and engines. Mr Parvez was given an opportunity to ask Mr Cotterill questions and did so.^[12]
24. [25]
    Mr Parvez now argues that Mr Baiao and Mr Cotterill should not have been allowed to give expert evidence. He says that expert witnesses should not be employed by a party.
25. [26]
    In conducting a proceeding, the Tribunal must act fairly and according to the substantial merits of the case. It is not bound by the rules of evidence and may inform itself in any way it considers appropriate.^[13] Whilst that does not mean that the rules of evidence can be ignored,^[14] it does allow the Tribunal, in appropriate cases, to receive evidence which may not be admissible in a court as expert evidence.^[15]
26. [27]
    The fact that an expert may be employed by a party does not render their evidence inadmissible.^[16] Likewise, while the practice should be discouraged, this Tribunal has previously accepted expert evidence from a representative of a party,^[17] and given that Mr Cotterill appeared with the intention of giving evidence on technical matters with a separate representative, I am not satisfied that his evidence should be excluded. Rather, the question becomes the weight that should be attributed to the opinions provided.
27. [28]
    Here, the parties had not provided independent experts to assist the Tribunal and questions which required technical evidence arose. The Tribunal informed itself in a manner which was, in the circumstances, appropriate.
28. [29]
    Mr Parvez also says that Mr Cotterill did not have sufficient firsthand experience of the engine warning light on the car’s dashboard. This may be true for that particular car, but it seems that Mr Cotterill’s extensive experience as a mechanic would qualify him to give evidence on those systems generally.
29. [30]
    Mr Parvez also says that the learned Adjudicator was in error to find that the evidence of Mr Baiao and Mr Cotterill was credible.
30. [31]
    As noted, an appeal tribunal should generally not interfere with the findings of fact made in a first instance decision.^[18] Here, the learned Adjudicator heard and tested evidence from both witnesses and gave Mr Parvez an opportunity to cross examine them. They noted the shortcomings of the evidence provided and made a finding as to credibility based on observations. There is no evidence before the Tribunal which would sustain a compelling inference that the learned Adjudicator was in error to do so.
31. [32]
    I am not satisfied that leave to appeal should granted on these grounds, and it is refused.

The opportunity to cross examine Mr Baiao

33. [33]
    Mr Parvez argues that he was given insufficient notice that Mr Baiao would be called as a witness and was, therefore, unable to prepare a sufficient cross examination.
34. [34]
    This ground cannot be sustained. The file shows that Mr Parvez was provided with Mr Baiao’s statutory declaration, roughly a paragraph long, two months before the hearing.^[19] He claimed that he had missed the email and was given time to read the declaration and prepare questions.^[20] The learned Adjudicator took steps to assist Mr Parvez by initiating the questioning.
35. [35]
    Mr Parvez told the Tribunal that English was not his first language, and he was not trained in cross examination. He said that a telephone cross examination was “far difficult and a very very highly professional thing to do.”^[21]
36. [36]
    The learned Adjudicator asked Mr Baiao how he knew his statement was accurate. They asked Mr Baiao whether he might be mistaken about the oil level and what diagnostic tool would have indicated an overfill.
37. [37]
    Mr Parvez asked Mr Baiao a number of detailed questions: whether he took photos of the relevant sections of the engine, why the engine oil level might change, whether there were details of previous work done on the car. Mr Parvez told the learned Adjudicator that he didn’t think Mr Baiao could be any more help. The learned Adjudicator continued to ask Mr Baiao questions and gave Mr Parvez a further opportunity to ask Mr Baiao questions.
38. [38]
    Both representatives and witnesses regularly appear in the Tribunal by telephone or video link. Parties in the minor civil disputes jurisdiction rarely have professional training in cross examination. While in-person attendances are always preferred, this cannot always be accommodated. Mr Parvez had the opportunity to ask for an interpreter; he chose not to take it. He could have asked for an adjournment; he did not.
39. [39]
    I do not consider that Mr Baiao’s remote appearance was uniquely unfair or denied Mr Parvez procedural fairness.

Brisbane BMW failed to create a report

40. [40]
    Mr Parvez also argues that the learned Adjudicator erred in ignoring the absence of a report by Brisbane BMW which detailed the removal of excess oil.
41. [41]
    There was no evidence to suggest that a report should have ordinarily been made by a mechanic. Even so, Mr Parvez has not explained why that report was important or how it would have assisted his case. Mr Parvez did not seek an independent report into the oil removed from the car, nor did he ask Brisbane BMW to provide a report. The learned Adjudicator was entitled to place little to no weight on the absence of a report.

The warranty

42. [42]
    Finally, Mr Parvez argues that the learned Adjudicator erred by considering the vehicle’s warranty in assessing the level of due care and diligence required of Brisbane BMW under s 60 of the ACL.
43. [43]
    Mr Parvez’s assertion is not supported by the transcript. The learned Adjudicator’s consideration of the warranty was in response to an argument advanced by him that Brisbane BMW should have asked him to bring his car in for an inspection.
44. [44]
    The learned Adjudicator considered that where the car’s warranty had expired (and there were several weeks between the service and Mr Parvez raising concerns about the car’s performance) there was no duty on Brisbane BMW to request that he bring the car back for inspection. The learned Adjudicator also found that there was an insufficient nexus between the alleged damage to the engine and Brisbane BMW’s choice to refer him to another mechanic.
45. [45]
    Leave to appeal is refused.

Orders

2. 1.Leave to adduce fresh evidence is refused
3. 2.Leave to appeal is refused.