Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Allan McDonald v Toyota Motor Corporation Australia Limited and Lean and Bennett Pty Ltd [2015] NSWCATAP 46 Hearing dates: 17 February 2015 Date of orders: 23 March 2015 Decision date: 23 March 2015 Jurisdiction: Appeal Panel Before: P Durack SC – Senior Member S Thode – Senior Member Decision: The Appellant be granted an extension of time to 18 September 2014 in which to lodge an appeal. The application for leave to appeal is dismissed. The appeal is dismissed. Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – leave to appeal - unsuccessful party below seeking to rely on additional evidence. Legislation Cited: Civil and Administrative Tribunal Rules 2014 Civil and Administrative Tribunal Act 2013 No. 2 Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Texts Cited: None. Category: Principal judgment Parties: Allan McDonald (Appellant) Toyota Motor Corporation Australia Limited; Lean and Bennett Pty Ltd (Respondents) Representation: Counsel: None Solicitors: M Dignan, Hugh & Associates for Toyota Motor Corporation Australia Limited File Number(s): AP 14/47442 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 14 August 2014 Before: W Sponza - Member File Number(s): MV 14/04714 REASONS FOR DECISION Introduction 1. In November 2012, Mr McDonald, the Appellant, purchased a new tray back single cab Toyota Landcruiser from Lean and Bennett Toyota in Lithgow. 2. In August 2014, his complaint about defects with the vehicle, which by then centred on a claim about excessive fuel consumption, was dismissed by the Tribunal. 3. He now appeals against that decision. He complains in general and vehement terms about the Respondents' treatment of him and their unwillingness to fix, during the warranty period, the fuel consumption problem which he claims exists. 4. However, Mr McDonald was unable to establish grounds upon which he should have leave to appeal. Leave to appeal was necessary because none of Mr McDonald's contentions raised any question of law. 5. Mr McDonald needed an extension of time in which to appeal. We are prepared to grant an extension of time in view of the very short delay beyond the expiry date and the lack of prejudice to the Respondents from this delay. 6. Our reasons for these conclusions are set out below. Extension of time in which to appeal 1. Mr McDonald needs a three day extension of time in which to lodge his appeal. The appeal was lodged on 18 September 2014 whereas the time for lodgement expired on 15 September 2014. This is because he had 28 days from the day that he was notified of the decision in which to lodge his appeal. He says in his Notice of Appeal that he received notice of the decision on 18 August 2014, which was the date it was issued. 2. This is a very short period of delay. The notice itself was completed and signed by Mr McDonald on 16 September 2014, the day after the time expired, but was not received by the Tribunal until 18 September 2014. The fact that Mr McDonald lives in Darbys Falls, east of Cowra, and the notice was received by the Tribunal at Penrith may have had something to do with this further delay but Mr McDonald does not point to this as a factor. 3. Instead, Mr McDonald says his wife's stroke explains the delay. Mr McDonald may be confused about the timing of events because it seems that Mrs McDonald did not suffer a stroke until later in 2014. 4. Whatever be the position, in view of the very short delay and lack of prejudice to the Respondents we think an extension of time should be granted. These are material factors, amongst others, in deciding whether to grant an extension: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. In the circumstances here, we regard them as influential. The decision at first instance 1. The Tribunal below found that Mr McDonald had not established any misrepresentation about fuel consumption. It found that representations regarding fuel consumption on the label affixed to the vehicle's windscreen, as required under the law, and replicated in Toyota's sales brochure were an indication of likely fuel consumption and not a statement of a strict range in which consumption will fall. In this regard, the Tribunal referred to statements in the brochure to the effect that the figures could only be taken as a guide and that actual consumption may vary as a result of a number of factors including vehicle speed, loading, road conditions and driving style. 2. The Tribunal found that there was no substantive material from Mr McDonald that covers the many variables associated with fuel consumption or which explains differences in fuel consumption, including those noted in Mr McDonald's diary. Grounds of appeal 1. Mr McDonald listed three grounds of appeal in his Notice of Appeal as follows: "1. Two separate members with 2 sets of different rules. 2. Our evidence was ignored. 3. Their evidence was misrepresented." 1. Mr McDonald did not provide any written submissions in support of his grounds of appeal. The Tribunal had directed him to do so by 1 December 2014. 2. When Mr McDonald's position on the appeal is properly understood what it really amounts to is that he seeks another hearing in which he can attempt to make out his case about excessive fuel consumption based on additional evidence, some of which he has not yet obtained, and based on a different misrepresentation to that put forward in the Tribunal below. 3. The circumstances in which Mr McDonald can appeal the decision below are limited. In broad terms, no question of law is raised and Mr McDonald cannot obtain another hearing of his claim unless Mr McDonald can persuade us that the hearing below suffered from particular problems and that as a result he may have suffered a substantial miscarriage of justice: s80 of the Civil and Administrative Tribunal Act (the Act) and cl 12(1) of Schedule 4 of the Act. 4. The particular problems to which we refer are those set out in cl 12(1) of Schedule 4 of the Act which says: "Part 6 Appeals 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)." 1. In summary, we do not think that any of these matters have been shown to exist. Ground 1 1. The essence of Mr McDonald's complaint under Ground 1 above, about which he tried unsuccessfully to be specific, was that he had been led to believe by one of the Tribunal members that the Tribunal's processes were all very informal and there was no need for material such as statutory declarations and expert reports to be presented. However, he says, when it came to the hearing a quite different approach was adopted by the Tribunal. 2. No details of this complaint were supplied by Mr McDonald before the hearing. At the hearing, when asked by the Tribunal about Ground 1 he was unable to be precise about the occasion and identity of the person who provided the information upon which he was relying. Ultimately, it emerged that the most likely occasion was a conciliation hearing that occurred before Member Rickards on 27 March 2014. 3. For the purpose of that hearing it may well be that Mr McDonald gained some impression that no proof in support of his claim would be required. However, conciliation did not resolve the matter and at a hearing on 8 May 2014 Member Rickards made orders in connection with a future hearing, including an order that Mr McDonald provide a copy of all documents on which he intended to rely at the hearing by 8 June 2014. The documents were described to include witness statements/statutory declarations or affidavits and expert reports. At the hearing of the appeal Mr McDonald was unable to explain whether and, if so, how he continued to be under the impression about the need for proof in the light of these orders. The orders were sent to him in a letter from the Tribunal. 4. In these circumstances, we do not accept that Mr McDonald proceeded under some false impression about the need for proof at the hearing on 14 August 2014 as he asserts, or, if he did, the Tribunal had conveyed that impression to him. 5. In that respect, we also note that the application form which Mr McDonald completed to commence his proceedings in the Tribunal contains a guide in which it is stated that at the hearing an applicant will need to provide evidence to support the application and that amongst the documents to bring to prove the claim reference is made to statements, statutory declarations or affidavits that support your case. 6. Further, in truth, what Mr McDonald now seeks to do is not to have another chance to prove the complaint he made in the Tribunal below. Rather, he seeks the opportunity to run a different case based on an oral representation made to him from the Toyota salesperson before he purchased the vehicle. This is a different case to that which he put forward in the Tribunal below which was based upon the way fuel consumption was advertised, being a reference to the label affixed to the front window of the vehicle and in the sales brochure. 7. In taking this course Mr McDonald seeks to rely upon five new documents. Four of these documents are statutory declarations by himself each dated 30 October 2014, which were provided to the Respondents and the Tribunal for the first time at the hearing of the appeal. 8. The content of one of these statutory declarations concerns what he was told by other Toyota dealers after he had already purchased the vehicle. This was referred to in the reasons of the Tribunal below. Mr McDonald did not lose his case in the Tribunal below because that material was not the subject of a statutory declaration. 9. The material in the other three statutory declarations is directed at a case that Toyota sales personnel are trained to give false fuel consumption figures as was orally given to him by the sales person at the Toyota dealership telling him, before he bought the vehicle, that the fuel consumption would be 11-12L/100k. There is no basis for a conclusion that the evidence contained in these statutory declarations was not reasonably available at the time of the hearing below. 10. Neither in his written application to the Tribunal nor in his letters to the Tribunal for the purpose of the hearing, did he make any reference to this oral statement as to fuel consumption by the sales person. Nor is there any reference in the Tribunal's reasons for decision to such a statement. 11. Mr McDonald had his chance before the Tribunal below to raise a case based on an oral statement about fuel consumption inducing him to purchase but he did not raise it. The decision below is not affected by any of the grounds in cl 12(1) of Schedule 4 by his failure to do so. 12. The fifth document Mr McDonald seeks to rely upon for the purpose of his appeal is a report from Mr Organ of Diesel Green (Aust) Pty Ltd dated 9 February 2014. This document was supplied to the Tribunal and the Respondents on 10 February 2014. It is presented as a report from an expert witness. 13. This report is an unusual document to seek to present as an expert report regardless of any issue as to the expertise of the author. This is so, principally, because it does not prove anything about whether or not, in fact, the vehicle suffered excessive fuel consumption, what that fuel consumption was, what the actual cause of any problem is and whether and, if so, how it can be fixed. 14. Apart from a number of subjects that the report addresses which are not matters for expert evidence, the report proceeds on an assumption that there is an excessive fuel consumption problem and then states that Mr Organ could carry out tests on the vehicle in order to identify the cause of the problem. He then expresses the view that with his help as a conciliator he is confident the "problem" can be rectified and a resolution arrived at. 15. Included in his report is a reference to regeneration as a process of removing the accumulated soot from the diesel particulate filter. However, it became clear at the hearing that the vehicle does not have such a filter. 16. Had this report been produced at the hearing at first instance it would not have assisted Mr McDonald to establish his case. Accordingly, the report did not amount to "significant" new evidence that was not available at the hearing as required by cl 12(1)(c) of Schedule 4. Also, Mr McDonald did not establish that any evidence which it might contain or indicate could be obtained was evidence not reasonably available at the time of the hearing below, as is also required by cl 12 (1)(c). 17. For these reasons, Ground 1 of the appeal is rejected. Ground 2 1. Neither before or at the hearing was Mr McDonald able to identify any evidence as to the fuel consumption issue that was "ignored" by the Tribunal at first instance. 2. Accordingly, we reject this ground of appeal. Ground 3 1. Neither before or at the hearing was Mr McDonald able to identify any evidence from the Respondents that was misrepresented. 2. Accordingly, we reject this ground of appeal. Orders 1. For the above reasons, the Appeal Panel makes the following orders: 1. The Appellant be granted an extension of time to 18 September 2014 in which to lodge an appeal. 2. The application for leave to appeal is dismissed. 3. The appeal is 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: 23 March 2015