Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McGinn v BMW Sydney [2019] NSWCATAP 124 Hearing dates: 11 December 2018 Date of orders: 15 May 2019 Decision date: 15 May 2019 Jurisdiction: Appeal Panel Before: Professor Ian Bailey AM SC, Senior Member John Currie, Senior Member Decision: 1. Leave to Appeal Refused 2. Appeal Dismissed Catchwords: Civil and Administrative Tribunal Act (NSW) – consumer law – motor vehicles – Australian Consumer Law Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Sophia McGinn (Appellant) BMW Sydney Pty Ltd (Respondent) Representation: In person (Appellant) Maha Maganderalingam, General Manager Aftersales (Respondent) File Number(s): AP 18/40706 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2018] NSWCATCD Date of Decision: 28 June 2018 Before: S.A. McDonald, Senior Member File Number(s): MV 18/12927 REASONS FOR DECISION 1. This internal appeal concerns a decision made by the Tribunal on 28 June 2018 in the Consumer and Commercial Division to dismiss an application involving two issues raised by the Appellant. 2. The first issue concerned the consumption of oil by the Appellant's BMW 320i. The second issue arose from the delivery by the Respondent to the Appellant of a replacement key for the vehicle. Whilst the Tribunal recognised that the two issues were in many respects unrelated, the Appeal Panel considers that there is a relationship based upon the Appellant's unproven beliefs which developed in sequence. 3. The Appellant believed that the Respondent or someone on behalf of the Respondent had been stealing oil from within the engine of her car whilst at its premises and when parked in public. When it became clear that as a consequence of the identified practical improbability for the theft of oil to be effected from beneath the vehicle, the Appellant seems to have developed a belief that oil must have been stolen by means of access to the engine from above and by means of a key which the Respondent, or someone whom it knew, had produced. 4. The hearing of the Appeal was focussed upon the issue of whether the Appellant could establish that the Respondent or someone the Respondent knew had a key which could allow access to her car. 5. The Tribunal at [14] through to [29] dealt with the issue as to whether the Appellant had established her contention that a third clone or copy key existed. For the sake of completeness the Appeal Panel sets out the Tribunal's reasoning in full: Second Issue – Key (14) That turns the Tribunal's attention to the second issue of the third key. The Applicant gave evidence that she had been the one and only owner and driver of this vehicle and that she received at the time of purchase of the vehicle two BMW ignition keys. The modern ignition key is a complex item with both a metal key part to insert into the vehicle ignition and a computerised chip for the car's security system which opens and closes doors, operates windows and may release the boot or hood of the vehicle. Part of the Applicant's belief that oil was being stolen from her car by BMW Artarmon was her belief that BMW Sydney had a third key which could be used to take oil from her car by accessing the car and releasing the hood. So the Applicant approached Mr Rossano Cacciagiu, the workshop manager of BMW Sydney, to test this theory. She was advised that any BMW vehicle electronically has ten slots for keys of which two are enabled by the ignition keys delivered with new cars to customers and the remaining eight are disabled pending the request for a further key from BMW Australia. (15) BMW Sydney gave evidence that when a further key is required by BMW Australia then a request is made for that key to be sent from either Germany or its Malaysian Regional Distribution Centre. No replacement keys are kept in Australia and no replacement keys are made in Australia. When a replacement car key is requested then BMW Australia checks its customer records against the vehicle, seeks a copy of the registration paper of the car, seeks identification of the person requesting the key to ensure they are either the registered owner or associated with the registered owner and then makes the request to Germany. About 1-2 weeks later a programmed car key will be sent to Australia for the customer. (16) In discussions between the Applicant and Mr Cacciagiu, it was decided that a third key would be requested to ascertain whether the third slot on the security program for the Applicant's vehicle had been already accessed by another key, and not hers. The key was requested on or about 27 November 2017 and picked up by the Applicant at the Respondent's premises on or about 8 December 2017. What happened thereafter produces a somewhat detailed and confused story. From the detailed notes the Tribunal made and questions asked I will attempt to recount correctly these events. When the Applicant picked up her additional key from the Respondent she had a theory that someone had ordered a key without her consent which would be a likely key #3 for the vehicle. Mr Cacciagiu's account of this is contained in detail at paragraph 4 of his affidavit with the statement sworn in the proceedings which is Attachment 11 to the bundle of documents provided by BMW Sydney to the Tribunal. (17) When the Applicant arrived to pick up the key, Mr Cacciagiu and the Applicant decided to test whether another key (#3) had been ordered or provided by BMW without the Applicant's knowledge or consent. They decided to test this by identifying the new key as (#4) and to test the central locking of the Applicant's vehicle. If the car opened with this key when only #4 was enabled then this may prove the Applicant's theory of a third key existing without her knowledge or consent. The Applicant apparently agreed this was how she would like to proceed and identified the new key as #4. The parties then tested the new key outside in the carpark on the car but it did not open the car. Mr Cacciagiu suggested that this proved that the Applicant's theory was wrong and that there was no third key in existence as that slot would need to be enabled before the #4 key would work. (18) The Applicant then formed the view that the key with which she had been provided (#4) was a clone key and set about undermining the order documents contained in the Respondent's bundle to suggest that it had been a copied key made in Australia and not at all produced from overseas. She did this first by alleging that the key should have come from Malaysia and not Germany but BMW denied this and said security keys came from Germany and showed DHL packages that posted this – see Respondent's Attachment 9 (p.19). The Applicant then said that the VIN number had never been provided to Germany to be able to make a key for that car so again it must have been made in Australia and was a false or copy key made in Australia. Again, BMW Sydney denied this. (19) The Tribunal questioned at this stage what utility the discussion had as in the discussion about oil consumption it had become clear that oil could be taken from the car without a key and therefore the issue of whether there was a third key or not was not critical to resolving the oil consumption issue which had apparently instigated it. At this stage the applicant said she felt she was being harassed but that it could be by other persons and not BMW Sydney. She said that if BMW Sydney were doing this it was to put pressure on her to have the work done on her car either at BMW Sydney or BMW Artarmon to fix the valve stems. The Tribunal queried this on the basis that at best, the claim against BMW Sydney in relation to oil consumption and/or the alleged fake third key was circumstantial and relied mainly on suspicion and conspiracy and not evidentiary proof on the balance of probabilities by the Applicant. (20) The Applicant also pointed to Attachment 24 in her documents which showed that the key was fake by the markings on it but was unable to show the original markings on her two original keys as they had worn off over time. Relevantly, no evidence of what a new German key looked like was put before the Tribunal by either party and no diagnosis of the oil issue in the car was obtained from an independent expert whom the Applicant might trust as she considered that BMW Sydney or BMW Artarmon had a vested interest in asserting that her car needed significant work (21) Towards the end of the 2 hour hearing (which was extended to 2½ hours to accommodate the Applicant) the Applicant started making alternative claims about BMW Sydney stealing her third key, refusing to replace it and giving her a fake third key in exchange. She got to the stage where, when the car was tested by BMW Sydney, she refused to hand over any of her keys (which made servicing difficult) (22) In fairness to the Applicant she had taken the third key to BMW Canterbury from where she originally bought the vehicle to test the key to ensure it was genuine. The response she received from BMW Canterbury was unsatisfactory in that it seemed to indicate that the key was either an after‑market key or not original manufacturer specification (Applicant's Attachment 21). BMW Sydney explained this on the basis that it could be a false negative and the software used to analyse the systems of BMW motor cars can produce false negatives as a result of wi-fi problems or connectivity problems. Nevertheless, this continued to raise suspicion with the Applicant. (23) The Applicant raised a number of other issues relating to the credit of Mr Cacciagiu which seemed irrelevant to the point she was attempting to prove namely that a third key had been ordered, made or delivered to BMW Sydney without her knowledge or consent. The Applicant at one stage said she tried to obtain records from BMW Sydney but they had refused to provide them. The Tribunal noted that it had been open to the Applicant to issue a summons to produce to BMW for any records that she did not have. Approximately 2 hours into the 2.5 hour hearing the Applicant sought to adjourn the hearing to obtain those records and then to reconvene at a later date for a further hearing. (24) The Tribunal declined this on the basis that the Applicant had had ample opportunity to issue any Summons to Produce or obtain legal advice on this issue prior to the hearing or prior to commencing the application in the Tribunal. The reading of Canterbury BMW in respect of the third key is at Attachment 21 to the Applicant's bundle of documents and states "error when interpreting the vehicle key from the central key holder". This does not of itself suggest the key is an after-market, 'clone' or copied key. (25) When the Applicant was asked what relief she sought for this particular transgression, if it was proved, the Applicant said she wanted the replacement of all the locks in her car so that only she had a key to unlock or access the vehicle. The Tribunal suggested that if there was a third rogue key available in the hands of third parties then someone surely would have used that key by now to steal the vehicle itself and not to steal oil from it. The Tribunal asked the Applicant whether there had been anything sinister other than the oil issue about the vehicle which produced these concerns. The Applicant said that the battery had been replaced in the vehicle in 2017 and then had required replacement again shortly after, within about a month or so. The roadside assistance team of BMW to which the Applicant subscribed, Allianz Roadside Assistance, had brought a new battery in each instance. The simple explanation of this seemed to be to the Tribunal that the Applicant had simply received a faulty or malfunctioning battery the first time round and it was replaced under warranty with another one shortly after (26) The Applicant said however that she had requested the failed battery from the Roadside Assistance team to test it but they had refused to provide it. This seemed logical to the Tribunal because second hand batteries have a sizable lead content which is valuable to recycle, an acid content which is dangerous and recycling assists in keeping down the price of new batteries. However again, the Applicant was of the view that this was the result of a conspiracy between BMW Sydney and/or Allianz Roadside Assistance to undermine her confidence in the vehicle brought about by someone who had access to her vehicle to damage or replace the battery. However no evidence of this was ever adduced by the Applicant. (27) After 2½ hours of hearing time the parties had exhausted these two issues. The Tribunal is not satisfied on the evidence put before it that either a third key exists or that it is being used either for ill-conceived purposes or at all against the interests of the Applicant. The Applicant has failed to prove on the balance of probabilities that such a third key exists or that is being used against her interests by BMW Sydney or anyone else. BMW Sydney who came to the Tribunal today in goodwill and spoke fairly and in an even handed manner about the lengthy trials and tribulations of the Applicant made this submission which appears to be based in good common sense. (28) Further, it has become clear that the Applicant has attended a number of BMW dealers – at least 4 dealers – unsuccessfully seeking to obtain information and seeking to prove or disprove theories she has about the vehicle and in order to prove her claim in the Tribunal. She has failed to do this. Additionally it is unclear why BMW Sydney is the only respondent to this application. While they were involved in the key issue, they seem to have only peripheral involvement in the oil issue which, as the Tribunal finds, is not related. (29) For these reasons, the Tribunal finds that the Applicant has not made out her case that either there is a third key or rogue key that it is being used against her interests by BMW Sydney or any other third party. Therefore the locking system in her BMW vehicle does not require replacement at the cost of BMW Sydney. Nor is BMW Sydney required to pay for any additional oil for the vehicle. For these reasons, both in respect of the oil issue and the third key issue, the Tribunal dismisses the application brought by the Applicant against BMW Sydney. 1. The Appeal Panel identifies the approach which is required in the assessment of internal appeals and then considers whether the Appellant has made out any basis justifying a grant of leave to appeal and secondly any basis to uphold the appeal. The Conduct of Internal Appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with the leave of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act). 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. 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 Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. The Appellant has not identified any error of law on the part of the Tribunal. 2. The matters advanced by the Appellant were based solely upon her belief as to the existence of another key to her car. The Appellant, neither at first instance nor on appeal sought to rely on any independent evidence as to the possibility or probability that such a key could exist. 3. The Appeal Panel has considered everything that was put to it by the Appellant and does not accept that she has established any aspect of the Tribunal's reasoning which involves any of the matters identified in Collins v Urban. 4. Further, in the course of the appeal hearing the Respondent offered to undertake at its premises, at no cost to the Appellant and in her presence, an electronic analysis of the keying system within her vehicle which would prove that the keys which she held were in fact Keys numbered 1, 2 and 3. 5. The Appellant declined to accept this offer. 6. Further, the Appeal Panel asked the Appellant to identify what damage or loss had been occasioned even if she could prove that the Respondent or someone whom it knew had a copy or clone key. The response was "potential damages". ORDERS 1. Leave to Appeal Refused 1. 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: 15 May 2019