Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mawbey v Enzo Andreano, Michelle Valerie Watts, Robert John Burton t/as Chatswood Auto Repairs [2020] NSWCATAP 221 Hearing dates: 8 October 2020 Date of orders: 27 October 2020 Decision date: 27 October 2020 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President G Burton SC, Senior Member Decision: (1) Mr S Hargraeve has leave to support the Appellant at the hearing of the appeal on the condition that there be no claim for costs. (2) Appeal dismissed. Catchwords: APPEAL-question of law, leave grounds, procedural fairness, disability, Australian Consumer Law. Legislation Cited: Civil & Administrative Tribunal Act Cases Cited: Collins v Urban[2014]NSWCATAP17 Texts Cited: None cited Category: Principal judgment Parties: Pamela Mawbey (Appellant) Enzo Andreano, Michelle Valerie Watts, Robert John Burton t/as Chatswood Auto Repairs (Respondent) Representation: Solicitors: Appellant (Self Represented) (with assistance from S Hargraeve) E Andreano (Respondent) File Number(s): AP 20/27094 Publication restriction: Nil Decision under appeal Court or tribunal: Civil & Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 4 June 2020 Before: G Blake SC, Senior Member File Number(s): MV 20/07570 REASONS FOR DECISION Background 1. This is an appeal from a decision published on 4 June 2020 in the Consumer & Commercial Division of the Tribunal exercising its jurisdiction to deal with consumer claims and in particular the operation of the Australian Consumer Law (NSW) (the ACL). The Appellant had sought compensation from the Respondent and she appeals the dismissal of her application. Decision under Appeal 1. We will refer to the decision under appeal as the Decision and in the following paragraphs summarise the Decision. 2. The Appellant had engaged the Respondent for the service of her motor vehicle from approximately 2009 and in the second half of 2016 had made it known to Mr Andreano and Mr Burton (being two of the Respondents to this appeal) that she was looking for a good reliable second-hand car to replace her existing car. 3. In around February 2017, Mr Andreano informed the Appellant that he had a Subaru for sale for $5,000 [7]. The Appellant agreed to purchase the Subaru for $4,750 [22]. The Respondents' invoice of 8 March 2017 records that the Respondent carried out repairs and service and that the vehicle's odometer showed it had travelled 235,000 kms [8]. 4. The Appellant alleged that she was deceived into purchasing the vehicle by the Respondents' engaging in misleading and deceptive conduct. The deception occurred during the test drive of the vehicle [22]. In addition, the Appellant submitted that Mr Andreano had said that the Subaru would not cost more for repairs than the previous vehicle (a Mazda) and that what she was observing concerning the warning light was "not right" [22]. It was alleged that Mr Andreano also said that the purchase price of $4,750 was "a real bargain" [22].It appears from the Appellant's application that the sale took place on 13th March 2017. 5. Subsequently problems developed with the vehicle and the Appellant alleged that she had spent $9,000 on repairs with a further sum of $2,800 to be spent on further repairs [22]. 6. In June 2017, the Appellant noticed that when driving the vehicle there was a clunking sound in the wheels, the gears were sticking and the engine was over revving in third gear [20]. According to the Appellant's allegations Mr Andreano informed the Appellant in July 2017 that the vehicle needed a new differential and that he had refused her request to refund the purchase price of the Subaru. 7. The Appellant alleged that in early 2018 the Subaru started overheating. In September 2018 it broke down and was taken to other repairers for work to be undertaken. By November 2018 the vehicle had travelled 249,885 km [20]. 8. In April 2019 the Appellant lodged a complaint with NSW Fair Trading [20]. The Appellant alleged that she was a vulnerable person by reason of requiring surgery for cancer as well as having a disability [20]. 9. The Respondents allege that when the vehicle was sold in March 2017 it did not have any serious defects and that, prior to selling the vehicle, the Respondent had carried out a full service and repairs, the details of which are contained in the invoice dated 8 March 2017 [21]. 10. The Tribunal concluded that it was not satisfied that the Appellant had established that the Respondents had engaged in misleading or deceptive conduct in contravention of s 18 of the ACL [32]. The Tribunal found that the representations of Mr Andreano which the Appellant referred to in her submissions were not contained in her evidence including her complaint to NSW Fair Trading. The Appellant failed to comply with procedural directions made on 2 March 2022 to provide the documents, including statements on which she intended to rely at the hearing [32]. 11. The Tribunal considered whether the Respondents had engaged in unconscionable conduct and concluded that it was not satisfied that the Appellant had established that the Respondents had engaged in conduct in contravention of s 21 of the ACL. The Tribunal found that the medical condition and age of the Appellant did not constitute special disadvantage [35]. The Tribunal went on to say that if the medical condition and age of the Appellant did constitute a special disadvantage, then the fact that Mr Andreano knew that the Appellant was poor, had cancer and was old does not demonstrate that he unconscientiously took advantage of that special disadvantage [35]. Further, the Tribunal concluded that there was no basis for a finding that Mr Andreano offloaded the Subaru knowing that it had "serious, difficult to fix very expensive problems" as alleged [35]. Notice of Appeal 1. A Notice of Appeal was filed by the Appellant on 22 June 2020. The grounds of appeal may be summarised as follows: 1. There were errors of law in procedural fairness and in applying the facts. 2. There were errors of law in "totally ignoring and dismissing my disability autism, which had handicapped me in the hearing process". Autism was not mentioned or considered by the Tribunal. 3. A telephone hearing was procedurally unfair as it was difficult for the Appellant to process auditory inputs. The Appellant was overwhelmed by the rapid-fire adversarial questions and answers over the phone and was rendered incapable of responding effectively. 4. There were errors on questions of fact and the Appellant sought leave to appeal. 5. The Decision was not fair and equitable because of the Appellant's difficulties with cognitive function arising from autism. 6. The Decision was against the weight of evidence. The Tribunal should have asked to see evidence of the registration checks with respect to the vehicle that had been done before. The Tribunal did not do any "detective work" for the Appellant in respect of the Respondent's evidence. 7. The Appellant sought leeway to adduce fresh evidence given her cognitive processing disorder. 1. To the Notice of Appeal there were attached two appendices. The first provided further particulars of the errors summarised above. In addition, it summarised the representations of the Respondents relied upon by the Appellant. These were: 1. That Mr Andreano had told the Appellant that the warning light on the dashboard was not a problem when it may have been. 2. Mr Andreano had told the Appellant not to purchase a vehicle with more than 200,000 km on the odometer but during the test drive, when the Appellant questioned Mr Andreano about this car which had done almost 250,000 km as shown on the odometer, he dismissed her concerns, saying "Subarus go on for ever". 3. Mr Andreano told the Appellant that the repair costs of the Subaru would be the same as for her old Mazda, but this was not true. 1. Appendix 2 contained a detailed series of comments on the Decision. Reply 1. The Respondents filed a Reply essentially supporting the dismissal of the Appellant's application and supporting the reasons contained in the Decision. Appellant's Submissions 1. The Appellant filed a number of submissions and supporting material in support of her appeal. The thrust of the submissions was that the Appellant had been manipulated by the Respondent and that she was particularly vulnerable because of her age (68), financial difficulties and her autism. In addition, the Appellant made submissions concerning procedural fairness in relation to the hearing. The submissions may be further summarised as follows: 1. The fact that the vehicle was repaired immediately before purchase, as evidenced in the invoice of 8 March 2017, demonstrated that it was not in good condition before the work that was done on it by the Respondents. 2. The Appellant took the car to the Respondents in late July 2017 to have the vehicle checked for registration purposes. She also sought the Respondents' assistance in ascertaining the cause of "clunking" in the front wheels. 3. The submissions allege that the Respondents told the Appellant a "litany of lies" and withheld information. 4. The submissions include a letter from Dr Canaris, consultant psychiatrist, dated 14 July 2020 and leave was sought by the Appellant to adduce the fresh evidence contained in that letter. The letter confirms that the Appellant suffers autism spectrum disorder which causes her to often be "very disorganised". The letter further stated that the Appellant struggles to process information, can be naïve and at the same time lacking in assertiveness. 5. Included in the submissions was a copy of the transcript of the hearing at first instance. The transcript reveals that both parties had filed evidence and submissions in writing. The Respondents ( through Mr Andreano) elected to cross-examine the Appellant and the Appellant was sworn in prior to the cross- examination taking place. The Appellant did not cross-examine any of the Respondents. In her submissions, the Appellant said that an aspect of the procedural unfairness she experienced at the hearing was that she was required to be sworn in, but the Respondents were not so required. Respondents' Submissions 1. The Respondents filed material attaching evidence considered at the hearing. at first instance. This included a copy of the invoice dated 8 March 2017 setting out the work done to the vehicle at the time of the sale to the Appellant and recording that the vehicle was bought by the Appellant for $5,000. The invoice further recorded that the next service "will be free of charge". The Respondents' submissions, in summary, state that the Appellant drove the car from purchase in March 2017 to July 2017 when it was presented for registration. Otherwise, the Respondents' submissions argue that the Decision does not display any error or any ground of appeal. The Appeal Hearing 1. At the hearing of the appeal Mr S Hargraeve sought leave to support the Appellant and the Respondents did not object. An order was made at the hearing giving Mr Hargraeve leave to support the Appellant on the condition that there be no claim for costs. Although Mr Hargraeve made some statements in support of the Appellant's case the bulk of the Appellant's submissions were made by the Appellant herself. 2. At the appeal hearing, the Appellant explained that she felt that she had not presented her case adequately at first instance because she had gone off on a "tangent". She was concerned with the need to prove that the sale was not a private sale and therefore she did not engage in all of the relevant issues. In addition, she submitted that she was unable to explain her autism. She further submitted that she had been subjected to unfair criticism and was not given an opportunity to adequately respond. She complained that the tone of the questions was aggressive. She gave an example of being denied an opportunity to adequately respond to questions at the hearing by referring to the questions asked on page 11 of the transcript. It was pointed out to her at the appeal hearing that she in fact answered the questions subsequently ( see page 12) . 3. The Appellant described the examples of deception she alleged against the Respondents. These were, as stated before, that during the test drive she had noticed the odometer reading and the light on the dash. Mr Andreano dismissed both comments. In summary, the Appellant's position was that she had been manipulated into purchasing a vehicle that was not worth it as was shown subsequently. 4. Mr Andreano made brief submissions relying upon the written submissions already filed. Consideration 1. Appeals from decisions made in the Consumer & Commercial Division of the Tribunal are regulated under s 80 of the Civil & Administrative Tribunal Act and by clause 12 regulation 4. This means that an appeal lies as of right on a question of law and with leave on the grounds stipulated in clause 12. Clause 12 provides: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because- (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Note: Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. (2) Despite section 80(2)(b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if-- (a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010 , or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order. 1. The case before the Tribunal essentially concerned whether the Respondents' conduct could be said to be misleading or deceptive or unconscionable, and if so whether that conduct had induced the Appellant to purchase the vehicle. 2. In our view the Appellant is in error in stating that the Tribunal failed to have any regard to the Appellant's personal condition, both financial and with respect to health. 3. In paragraph 35 of the Decision, the Tribunal referred to the "economic situation, medical condition and age of the Applicant" and found that those matters did not constitute a special disadvantage (being a relevant consideration in terms of assessing whether the Respondents' conduct was unconscionable). It is also reasonable to assume that the member was aware of the Appellant's autism because she had mentioned it at the hearing. Our review of the transcript does not reveal any inability by the Appellant to have put her position clearly enough for the Member to understand her contentions. Similarly, at the hearing of this appeal, we did not form the view that the Appellant was unable to articulate the basis of her appeal, or the allegations that she sought to make good against the Respondents. 4. In our view, the submissions concerning procedural unfairness are not made out and therefore must be rejected. Although the Appellant was required to be sworn in and the Respondent was not, we do not discern that the Respondents' evidence was thereby given greater weight. Rather, the purpose of the swearing seems to have been occasioned by the fact that the Appellant was about to give oral evidence as Mr Andreano required to cross examine her. The Respondents were not required to be cross-examined. 5. The Tribunal specifically found that there was no basis for a finding that Mr Andreano offloaded the Subaru, which he knew had "serious, difficult to fix, very expensive problems" (an allegation recorded in the complaint to the Department of Fair Trading) and there is no evidence which would cause us to doubt the accuracy of the Tribunal's finding in that regard. 6. In respect of the two key alleged misrepresentations (namely that Subarus go on forever and therefore there was no need to worry about the reading on the odometer and secondly that there was no problem with the red light on the dashboard) the Tribunal found that these allegations were not proven: [32] of the Decision. Even assuming in favour of the Appellant that Mr Andreano made the representations attributed to him, we do not see that those representations would constitute misleading or deceptive conduct (and thereby a contravention of s 18 of the Australian Consumer Law or unconscionable conduct. 7. A statement to the effect that Subarus go on for ever is not to be taken literally and is in this context no more than a statement that Subarus can be driven for well in excess of 235,000 km (the odometer reading at the time of purchase), provided presumably that they experience reasonable servicing and repairs. Similarly, the representation dismissing the Appellant's concern about the red light may well have been true. There is no evidence that the red light indicated a problem of significance. There is speculation to that effect by the Appellant but no evidence. 8. Finally, it is appropriate to correct the Appellant's apparent misunderstanding of the role of the tribunal. That role does not include undertaking "detective' work. The tribunal relies upon and considers only the evidence which the parties put forward. 9. In our view, the Decision does not display any error on a question of law. We do not disagree with the Member's analysis of the application of the relevant provisions of the Australian Consumer Law, or of unconscionable conduct more generally. 10. With respect to the grounds available under clause 12, we are of the view that the Decision was not one that could be described as not fair and equitable or against the weight of evidence. We are of the view that the new evidence (in particular the letter from Dr Canaris) would not have resulted in a different outcome. This is because the transcript does not reveal that the appellant was not able to articulate her case and also because the tribunal took her medical condition into account. 11. In addition, previous decisions of the Appeal Panel, for example Collins v Urban [2014]NSWCATAP14, have made it clear that leave should only be given under clause 12 where the Appeal Panel is satisfied that a substantial miscarriage of justice has occurred and that the Decision raises one of the matters described in [84] of that decision. These include a question of principle or a matter of public importance, or that a clear injustice has occurred. None of those matters arises in this case. In this case the basic facts are that the Appellant bought a car that had travelled 235,000 km in March 2017, and by November 2018, the Appellant had driven the vehicle a further 15000 km. There is no evidence to suggest that the Respondent's representations prior to purchase were misleading or deceptive or that the Respondent manipulated the Appellant into agreeing to the purchase. In conclusion we do not agree that the Decision displays any error of law or that leave to appeal should be granted. 12. Having regard to the above analysis, we are of the view that the appeal must be dismissed. An order to that effect is made. Orders 1. Mr S Hargraeve has leave to support the Appellant at the hearing of the appeal on the condition that there be no claim for costs. 2. Appeal dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 October 2020