Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wen v Mazda Australia Pty Limited [2019] NSWCATAP 169 Hearing dates: 18 June 2019 Date of orders: 10 July 2019 Decision date: 10 July 2019 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member D Goldstein, Senior Member Decision: 1. Leave to Appeal is refused. 2. Appeal dismissed. Catchwords: CONSUMER CLAIM – Section 54 of the Australian Consumer Law – challenge to acceptance of expert opinion – no competing expert opinion – onus of proof not satisfied – no appellable error shown Legislation Cited: Australian Consumer Law Civil and Administrative Tribunal Act 2013 Uniform Civil Procedural Rules 2005 Cases Cited: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: None cited Category: Principal judgment Parties: Lixia Wen (Appellant) Mazda Australia Pty Limited and West End Motor Group Pty Ltd (Respondents) Representation: L Wen (Appellant self-represented) Mazda Australia Pty Limited and West End Motor Group Pty Ltd (Respondents self-represented) File Number(s): AP 19/16294 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: Not applicable Date of Decision: 07 March 2019 Before: P Boyce, Senior Member File Number(s): MV 18/29377 REASONS FOR DECISION 1. The appellant appeals against a decision given in the Consumer and Commercial Division of the Tribunal on 7 March 2019 which dismissed her application on the basis that she had not made out her claim. 2. In those proceedings the appellant sought orders for the repair or replacement of a faulty motor vehicle, or parts of it, to the approximate value of $18,000.00 in connection with what was described as rusting of the engine. 3. The Tribunal treated her claim as being for breach of the statutory guarantee set out in s 54 of the Australian Consumer Law that goods supplied are of acceptable quality. 4. The car was purchased by the appellant from the second respondent on 2 January 2016. It was a new Mazda 3 hatchback. The first respondent imported the car. The nature of the claim against the first respondent was unclear. 5. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (CAT Act). 6. 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 CAT Act. 7. 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 her Notice of Appeal the appellant identified that she sought leave to appeal on the basis that the decision was not fair and equitable and was against the weight of the evidence. 2. It also appears from reasons outlined in the Notice of Appeal that she sought to rely on various articles about phosphate coating which had not been presented to the Tribunal at first instance. 3. We will approach the issues raised on appeal having regard to the often cited decision of the Appeal Panel in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 where it was stated; 'In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. Fairness relating to the conduct of the hearing 1. First, in her grounds of appeal the appellant states that she 'should be allowed and encouraged to ask any questions relevant to the issue but not be stopped'. It was contended that as a consequence several important questions were either ignored or not answered, particularly about the expert opinion presented by the respondents from Mr Mendez that the use of degreaser was a likely explanation for the corrosion. In this connection, the grounds of appeal set out six issues concerning claimed deficiencies with that opinion. 2. In oral submissions at the hearing of the appeal presented by the appellant's son, it was contended that the appellant was not given the opportunity to contest the respondents' expert evidence and that this had, apparently, occurred because the appellant's husband, who appeared at the hearing for the appellant, was not appropriately qualified to challenge the technical expertise of the respondents' expert. 3. We treat this contention as raising an issue of procedural fairness and, hence, a question of law. Alternatively, it raises an issue as to whether the decision was not fair and equitable in respect of which leave to appeal would be required. 4. The respondents strongly disagreed with these contentions. They contend that the appellant was given the opportunity at the hearing to challenge the experts' findings and took that opportunity. They disagreed with the appellant's contention that her husband, who represented her, was prevented from asking questions during the course of the hearing. 5. On the appeal, there was no suggestion on behalf of the appellant that the Tribunal had incorrectly stated in its reasons that Mr Mendez defended his findings against the questions of the appellant's husband in cross examination: at [39] and that he had also cross examined Mr Moller, the Field Technical Specialist from the first respondent: at [28b]. 6. In the circumstances, we reject the broad contention made in oral submissions that the appellant was not given the opportunity to contest the expert evidence. 7. As to whether the appellant's husband was stopped from asking some questions of Mr Mendez, in the face of the respondents' disagreement, and the absence of any transcript or sound recording or other evidence as to what transpired, we are unable to conclude that this occurred to any degree, let alone that what occurred was unfair. 8. As is commonly the case, directions were made in respect of the hearing of the appeal for each party to lodge with the Tribunal the sound recording of the hearing at first instance and typed copies of relevant parts if what happened at the hearing is relied upon: 9. This did not occur because, as we understand it, no sound recording was available In such circumstances, if the point about being stopped from questioning was to be pursued, we would expect the appellant, or her husband, who represented her at the hearing, to provide a statutory declaration or an affidavit which addressed the hearing and stated with some precision the manner in which her representative was prevented from asking questions or raising issues at the hearing. 10. In her Grounds of Appeal, the appellant also criticised the fairness of the conduct of hearing at first instance on two other grounds as follows: 1. She felt she was discriminated against at the hearing because she does not speak much English, she has health problems and has been in a wheelchair for 15 years. She had authorised her husband to represent her but he was discriminated against because he was not a metallurgist and only had a PhD in microbiology. 2. She did not have the financial capability to adduce an expert report. 1. We do not accept these contentions. 2. The Tribunal granted leave for the appellant's husband to represent her at the hearing. There is no suggestion that he was unable to speak English. In this regard, we have already referred to the Tribunal's reference to his cross examination of the experts. 3. We cannot find any basis for finding that the appellant's husband was discriminated against at the hearing. In oral submissions, the appellant's son drew our attention to the Tribunal's reference to the appellant's husband informing the Tribunal that he had a PhD and that his field of expertise was microbiology and to the Tribunal's conclusion that, nevertheless, such education and experience did not qualify him to make evidence based conclusions as to the cause of the corrosion. 4. However, this was not a conclusion in relation to the manner in which the appellant's husband conducted the hearing. It was an appropriate conclusion about the weight to be attributed to his opinions concerning technical questions that were not within his area of expertise. 5. We can see no basis for the appellant's point that she has health problems and has been in a wheelchair for 15 years. She has not stated how those factors operated to deprive her of a fair hearing. 6. As to the appellant's statement that she did not have the financial capacity to adduce an expert report, we appreciate that the appellant sought to establish that the engine of her vehicle had rusted by filing photographic evidence as referred to at [34] of the Tribunal Member's decision. However, it would have been advisable for the appellant to rely on expert evidence in reply to Mr Mendez's evidence, given that it is clear that she did not agree with it. We appreciate that litigants may find it difficult to afford expert evidence to support their case. However, an inability (assuming, without accepting, this existed) to be able to produce an expert report does not carry with it the consequence that a hearing is procedurally unfair, or not fair and equitable within the meaning of cl 12. 7. We would also point out that the applicant was seeking an order in her favour for $18,000.00 and making a serious complaint against the respondents about the quality of one of their new cars. The respondents were entitled to file technical evidence to establish that they were not responsible for the engine corrosion the subject of application. The Tribunal's reliance on the expert evidence of Mr Mendez 1. In the grounds of appeal and in oral submissions, the appellant focussed upon criticisms of the opinion of the expert, Mr Mendez of Corrosion Control Engineering, particularly, his opinion that a likely explanation for the corrosion was the use of engine degreaser after purchase. 2. As we have already mentioned, in the grounds of appeal these criticisms were identified as a complaint about the fairness of the conduct of the hearing on the basis that the appellant, through her husband, was prevented from pursuing questions about these aspects. We have not accepted this complaint. 3. Nevertheless, we treat the appellant as also seeking leave to appeal on the basis of error of fact by the Tribunal in finding that the corrosion on the aluminium components in the engine bay was not a defect caused by the respondents resulting from the Tribunal's acceptance of Mr Mendez's expert evidence: reasons at [41]. 4. With respect to this ground of appeal, in this case, the appellant must, of course, establish that the appellant may have suffered a miscarriage of justice because the decision was not fair and equitable or was against the weight of evidence. 5. There were six issues raised by the appellant in her grounds of appeal. They related to the results of the testing carried out by Mr Mendez (phosphate was only found in one of the three samples), queries relating to why the matrix of the engine metal was not also tested, the lack of explanation as to how a phosphate degreaser would cause corrosion and that the opinion was contrary to common sense. 6. There are a number of reasons why we refuse leave to appeal on this ground. 7. First and foremost, this is because none of these matters were raised with Mr Mendez at the hearing at first instance. In those circumstances, we do not see how we could fairly or properly conclude that the Tribunal erred in fact or that, if it did so, the resulting decision was not fair and equitable or was against the weight of the evidence. 8. Secondly, even assuming for the moment, without accepting, that the Tribunal was wrong to go so far as to conclude that the corrosion was not a defect caused by the respondents, the appellant still confronts the problem that the Tribunal also concluded that the appellant had failed to discharge the onus of proving that the corrosion was caused by the respondents: at [42]. 9. In this regard, it is important to recognise that this was a case in which the appellant's case relied upon the purchase of the new car in good condition, identification of corrosion for the first time nearly two years later, photographic evidence of the corrosion and expressions of belief that the corrosion must result from an inherent defect in relevant materials used in the manufacture of the car. 10. The appellant adduced no expert evidence in chief or in reply to the respondents' evidence. 11. On the other hand, the respondents principal evidence came from Mr Mendez, who had 15 years as consultant in the metallurgical field and obtained a Bachelor of Engineering (Materials). 12. Mr Mendez supplied a detailed report accompanied by photographs. His was an expert report in respect of which he agreed to be bound by the rules concerning such evidence in Sch 7 of the Uniform Civil Procedure Rules. He gave sworn evidence in support of his report at the hearing at first instance. 13. His report explained that his company had been engaged by the first respondent to undertake a visual inspection and corrosion investigation of the car, the purpose of which was to inspect the extent of the corrosion, to conduct an analysis of the corrosion and identify the cause of the corrosion. 14. The report went in to some detail in describing just where the corrosion was found and not found. It reported on samples of the corrosion that were analysed. It set out a number of reasons why it was considered that the corrosion was not due to atmosphere/environment in combination with the material used in the manufacture of the vehicle that were not fit for purpose, including that the corrosion was not uniform across other more exposed areas and was not uniform across aluminium components in the engine bay. It also went on to express a positive view as to the cause, namely that it was considered "most likely" that the engine bay was exposed to a phosphate – based degreaser and it was considered "most likely" that the degreaser was washed off from the engine bay with water resulting in the degreaser solution spattering on the engine bay and only affecting aluminium components. 15. Faced with such evidence presented by the parties, it is not surprising that the Tribunal gave some emphasis to the issue of discharging the onus of proof and the failure of the appellant to do so; at [29], [30], [34], [36] and [42]. 16. In these circumstances, on any view about a positive conclusion as to the cause of the corrosion, we can see no basis for doubting the correctness of the conclusion that the application be dismissed on the basis that the appellant had failed to discharge her onus of proof. 17. Thirdly, the six issues raised by the appellant did not address the full variety of reasons given by Mr Mendez as to why the corrosion was not the consequence of materials in the manufacture that were not fit for purpose. These reasons were based upon the locations of the corrosion and analysis of all three samples. As to the latter, the report referred to the other two samples where phosphate was not found. These were identified as aluminium oxide in respect of which the report stated that this was the corrosion product found when aluminium is exposed to "a relatively aggressive substance/solution". 18. As a separate but related point, in item B2 of her Grounds of Appeal, the appellant contends that "the conclusion" that the engine corrosion was caused by the spray of a phosphate - based degreaser was not justified for the additional reason (additional to the six issues already referred to) that it is well documented that the phosphorous element has been widely used in automotive manufacturing for the purpose of corrosion resistance. The appellant then seeks to rely upon five articles and contends that the phosphate found in one sample could come from the engine matrix itself and raises again the question why the engine metal was not tested. 19. We note that the Tribunal did not express the conclusion referred to but instead arrived at the broader conclusion set out in para 41, already referred to. Nevertheless, on the assumption that this was an implicit conclusion of the Tribunal, we refuse leave to appeal on this ground for the reasons set out below. 20. In the first place, this was an impermissible attempt by the appellant to rely on new evidence in circumstances where she has not shown that such new material was not reasonably available at the time of the hearing at first instance: cl 12(1)(c) of Schedule 4 (see above). 21. Furthermore, we would also refuse leave to appeal on this ground because of the first, second and third reasons previously given (in paras 34 to 44). 22. Finally, we note that the appellant sought leave to appeal on the basis of new evidence consisting of video evidence contained in a memory stick concerning the extent of the corrosion. However, during the appeal hearing, after it was identified that the video was taken at the same time as the photos that were relied upon at first instance (we received these photos on the appeal and marked them as an exhibit on the appeal), the appellant withdrew reliance on the videos conceding that the videos were available to her at the time of the hearing, but she had chosen not to use the evidence at that time. Orders 1. For the above reasons, we refuse leave to appeal and otherwise dismiss the appeal. ********* I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 10 July 2019