Freeme v ASG Brisbane Pty Ltd trading as Maserati Brisbane - [2024] QCAT 19

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Freeme v ASG Brisbane Pty Ltd trading as Maserati Brisbane [2024] QCAT 19

PARTIES:

GARY FREEME

(applicant)

v

ASG BRISBANE PTY LTD TRADING AS MASERATI BRISBANE

(respondent)

APPLICATION NO:

MVL245-22

MATTER TYPE:

Motor vehicle matter

DELIVERED ON:

3 January 2024

HEARING DATE:

21 September 2023

HEARD AT:

Brisbane

DECISION OF:

Member Scott-Mackenzie

ORDER:

The proceeding is dismissed.

CATCHWORDS:

COMPETITION AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – JURISDICTION – claim for orders under the Motor Vehicle Service and Repair Information Sharing Scheme – jurisdiction of the Tribunal to hear and decide a motor vehicle dispute – whether the jurisdiction extends to making orders under the Scheme.

Australian Consumer Law (Queensland), s 259

Competition and Consumer Act 2010 (Cth), s 57AA, s 57AB
Competition and Consumer Amendment (Motor Vehicle Service and Repair Information Sharing Scheme) Act 2001 (Cth)
Fair Trading Act 1994 (Qld), s 50
Motor Dealers and Chattel Auctioneers Act 2014 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 50, s 50A, Schedule 3

APPEARANCES:

Applicant:

Self-represented

Respondent:

Mr Merilaid

REASONS FOR DECISION

Introduction

The applicant, on 26 October 2022, made application to the Tribunal for orders under the Competition and Consumer Amendment (Motor Vehicle Service and Repair Information Sharing Scheme) Act 2001 (Cth) (Amendment Act) (application). The orders he seeks, set out in a document filed with the application, are in the following terms:
1.       That Maserati acknowledge the Service(s) performed by Repairer of my choice.
2.       That Maserati record the Service(s) on their system and make this information available to the Repairer of my choice, thereby enabling me to have the car serviced by Repairer of my choice.
3.       That Maserati provide any and all information necessary to turn off the “false” warning lights, thus protecting the safety and security of me, the Consumer.
4.       That Maserati assist at no charge in providing a resolution to this application.

Background

On 27 November 2021 the applicant purchased from the respondent a 2020 Maserati Ghibli sedan (motor vehicle) for $155,929.21.
The motor vehicle was serviced by Samford Automotive Mobile Services (Samford) on 5 April 2022 at a cost of $350.00. The service included changing the oil and oil filter. Samford, however, did not have the necessary diagnostic tool to reset the service warning light.
Correspondence passed between the parties in relation to the service warning light. In an email sent by the respondent to the applicant on 22 June 2022, the respondent confirms an offer, “… to change your engine oil and filter only, at a discounted rate totalling $528.55 to resolve your concerns and reset your service light.” In other words, the respondent, in effect, was offering to reset the service warning light for $528.55 the oil and oil filter having already been changed by Samford.
The email later continues:
Please bear in mind that this offer is not considered a scheduled service and we cannot stamp your service book. This is simply a resolution to resetting your service light as you’ve requested.
The applicant summarises his claim the reasons for the orders sought in the following terms:
Maserati refuse to enable me (consumer) to have the vehicle diagnosed and serviced effectively by an Australian repairer of my choice.
Maserati have failed to ensure the safety and security of me (consumer) by refusing to advise codes necessary to service the vehicle correctly.
Maserati have refused to provide information necessary to diagnose faults with the vehicle.
Response
The respondent, on 20 December 2022, filed a response to the application. It:
(a)admits the sale of the motor vehicle by the respondent to the applicant;
(b)admits being provided with the invoice from Samford and being informed by the applicant Samford was unable to reset the service warning light; and
(c)states that on 1 June 2022 it informed the applicant the aftermarket diagnostic tool is available for purchase by the Australian market and a workshop with the tool is able to reset the service warning light.
Hearing
The proceeding came on for hearing before the Tribunal on 21 September 2023.
The applicant was self-represented. Mr Merilaid appeared on behalf of the respondent.
Directions
At the outset of the hearing, the Tribunal raised with the parties the jurisdiction of the Tribunal to hear and decide the application and make the orders sought by the applicant. To afforded them an opportunity to make considered submissions on jurisdiction, the Tribunal directed, inter alia, as follows:
(a)the applicant, by 4.00pm on 26 October 2023, file and serve on the respondent by email any submissions on the jurisdiction of the Tribunal to make an order or orders under the Amendment Act on which he relies;
(b)the respondent, by 4.00pm on 30 November 2023, file and serve on the applicant by email any submissions on the jurisdiction of the Tribunal to make an order or orders under the Amendment Act on which it relies;
(c)the applicant, by 4.00pm on 7 December 2023, file and serve on the respondent by email any submissions in reply to the respondent’s submissions on which he relies; and
(d)the jurisdiction of the Tribunal to make an order or orders under the Amendment Act be decided on the papers after 7 December 2023.
Neither party filed submissions in accordance with the directions or at all.
Discussion
Introduction
The respondent asserts it complies with Part IVE in the Competition and Consumer Act 2010 (Cth) (CC Act), inserted in the Act by the Amendment Act. There is no evidence to the contrary.
The substance of the applicant’s complaint is not that service and repair information is not being shared as required by Part IVE of the CC Act, it is the diagnostic tool required to reset the service warning light of the motor vehicle, whilst available to be purchased by a workshop such as Samford, the cost of the tool is beyond the reach of most workshops.
The question to be determined is does the Tribunal have jurisdiction to make the orders sought by the applicant, either under Part IVE of the CC Act or otherwise, or at all.
Amendment Act
The Amendment Act inserts a new Part IVE in the CC Act. The Part commenced on 1 July 2022.
The objects of the Part, spelt out in section 57AA of the CC Act as amended by the Amendment Act, are to:
(a)promote competition between Australian repairers of passenger and light goods motor vehicles and establish a fair playing field by mandating access, on fair and reasonable commercial terms, to information used to diagnose, repair, service, modify or dismantle scheme vehicles; and
(b)enable consumers to have scheme vehicles diagnosed, repaired, serviced, modified or dismantled safely and effectively by an Australian repairer of their choice; and
(c)encourage the provision of accessible and affordable information about scheme vehicles to Australian repairers, and to registered training organisations (for training purposes); and
(d)protect safety and security information about scheme vehicles to ensure the safety and security of consumers, information users and the general public; and

(e)provide for the resolution of disputes about the application of the Part.

Conveniently, a simplified outline of the Part is found in section 57AB. It reads:
This Part sets up a scheme to improve access by Australian motor vehicle repairers and registered training organisations (called “scheme RTOs”) to information used to diagnose faults with, service, repair, modify or dismantle motor vehicles covered by the scheme.
Such information (called “scheme information”) is required to be offered for supply to Australian repairers and scheme RTOs at a price that does not exceed fair market value.
Those who supply scheme information (called “data providers”) to Australian repairers and scheme RTOs are protected from certain civil claims in doing so.
To protect the safety and security of vehicle owners, individuals working for an Australian repairer or scheme RTO who access scheme information relating to vehicle safety and security must satisfy certain criteria relating to whether they are fit and proper persons to have access to such information.
Sensitive information about such individuals may be obtained by data providers for this purpose. The handling of such information is also restricted under this Part. The information cannot be made available to anyone outside Australia (including to any data provider).
Provision is made for resolving disputes about the application of the Part.

Provision is made for a scheme adviser. The scheme adviser’s functions include facilitating mediation of disputes between data providers and Australian repairers or scheme RTOs, and providing information about the operation of the scheme.

The Part contains provisions for the imposition of civil penalties for non-compliance with provisions of the Part and dispute resolution. It does not give jurisdiction to the Tribunal to order motor vehicle repairers to provide other repairers with, or access to, diagnostic tools such as that required to reset the service warning light on the motor vehicle.
The application made by the applicant is for a motor vehicle dispute. The jurisdiction of the Tribunal to hear and decide a motor vehicle dispute is found in the Fair Trading Act 1994 (Qld) (FT Act) and the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) (MDCA Act).
First, the FT Act.

Fair Trading Act 1989 (Qld)

Section 50(1) of the FT Act provides:
A proceeding for the purposes of a provision of the Australian Consumer Law (Queensland) listed in the table to this section must be heard in the tribunal or in a court having jurisdiction for the proceeding, having regard to:
(a) for the tribunal, whether the subject of the proceeding:
(i)would be a minor civil dispute within the meaning of the [Queensland Civil and Administrative Tribunal Act 2009 (Qld)]; or
(ii)would be a matter to which section 50A applies; or
(b) for a court - any civil jurisdictional limit, including any monetary limit, applying to the court.
The table to section 50(1) includes an action against a supplier of goods under section 259(2) of the Australian Consumer Law (Queensland) (ACL) (to recover reasonable costs incurred by a consumer), section 259(3) (to recover compensation for the reduction in the value of the goods) and section 259(4) (to recover damages because of a failure to comply with a guarantee).
Minor civil dispute is defined in Schedule 3 to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). It means:
(a)     a claim to recover a debt or liquidated demand of money of up to the prescribed amount; or
(b)     a claim arising out of a contract between a consumer and trader, or a contract between two or more traders, that is:
(i)for payment of money of a value not more than the prescribed amount; or
(ii)for relief from payment of money of a value not more than the prescribed amount; or
(iii)for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or
(iv)for return of goods of a value not more than the prescribed amount; or
(v)for a combination of any 2 or more claims mentioned in subparagraphs (i) to (iv) where the total value of the combined claim is not more than the prescribed amount; or
(c)      a claim for an amount of not more than the prescribed amount for damage to property caused by, or arising out of the use of, a vehicle; or
(d)     a tenancy matter; or
(e) a claim that is the subject of a dispute under chapter 2 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, and is for an amount not more than the prescribed amount; or
(f) a matter in relation to which a person may, under Part 2A of chapter 8 of the Building Act 1975, apply to the Tribunal for an order.[1]
[1]Section 1 of the definition of minor civil dispute in schedule 3 to the QCAT Act.
The claim made by the applicant, in my opinion, is not a claim to recover a debt or liquidated demand of money of up to the prescribed amount or a claim arising out of a contract between a consumer and trader, or a contract between two or more traders. Further, it is not a claim or matter mentioned in paragraphs (c) - (f) of section 1 of the definition.
If an enabling Act confers jurisdiction on the Tribunal to deal with a claim (however called) within the meaning of paragraph (a) of section 1 of the definition, the claim is not a minor civil dispute unless the enabling Act expressly states it is a minor civil dispute.[2] Nothing in the CC Act confers jurisdiction on the Tribunal to deal with a claim under Part IVE. Further, and in any case, the claim made by the applicant is not a claim to recover a debt or liquidated demand of money of up to the prescribed amount.
[2]Section 2 of the definition of minor civil dispute in schedule 3 to the QCAT Act.
A claim mentioned in paragraph (b) of section 1 of the definition does not include a claim in a proceeding to which section 50A of the FT Act applies.[3]
[3]Section 3 of the definition of minor civil dispute in schedule 3 to the QCAT Act.
A claim mentioned in paragraph (a) of section 1 does not include a claim under section 539 of the Fair Work Act 2009 (Cth).[4]
[4]Section 4 of the definition of minor civil dispute in schedule 3 to the QCAT Act.
The claim made by the applicant, in my opinion, is not a minor civil dispute within the meaning of the term as defined in Schedule 3 to the QCAT Act.
Section 50A of the FT Act provides a person may apply, as provided under the QCAT Act, to the Tribunal for an order mentioned in section 50A(2) for an action:
(a)under a provision of the ACL listed in the table to the section; and
(b)relating to a motor vehicle; and
(c)seeking an amount or value of other relief of not more than $100,000.00.
The action relates to a motor vehicle. However, the action is not an action under a provision of the ACL listed in the table to section 50A and is not an action seeking an amount or value of other relief of not more than $100,000.00.
It follows, in my opinion, that if the Tribunal has jurisdiction to hear and decide the proceeding and make the orders sought by the applicant, it must be found in the MDCA Act.
Motor Dealers and Chattel Auctioneers Act 2014(Qld)
Section 6 of Part 2 of Schedule 1 to the MDCA Act provides that a licensee who sells a warranted vehicle must give the buyer of the vehicle a notice in the approved form and the buyer must acknowledge receipt of the notice by signing a copy of it. Warranted vehicle is defined in section 3 as a used motor vehicle subject to several exceptions irrelevant in the circumstances here.
Used motor vehicle generally includes a motor vehicle that has, at any time, been licensed or registered, whether under a law of Queensland or another State.[5]
[5]See the definition of used motor vehicle in schedule 3 to the MDCA Act.
The motor vehicle, I find, was a warranted vehicle.
The parties complied with section 6 of Part 2 of Schedule 1 to the MDCA Act.
The motor vehicle odometer reading is not included in the contract for purchase or the notice under section 6 of Part 2 of Schedule 1 to the MDCA Act. At the time of service by Samford on 5 April 2022, it was 9,220kms. The built date is November 2020.
It follows that, by virtue of section 3A of Part 1 of Schedule 1 to the MDCA Act, the motor vehicle is a class A warranted vehicle. The warranty period of a class A warranted vehicle, in general terms, starts at the time of taking possession and ends on the motor vehicle travelling 5,000kms or 3 months after taking possession, whichever is the earlier.
The claim made by the applicant, in my opinion, is not a claim for a defect within the meaning of section 2 of Part 1 of Schedule 1 to the MDCA Act. Further, and in any case, the warranty period had ended by the time the motor vehicle was serviced by Samford.
Decision
The requirement for an expensive diagnostic tool to carry out or complete the service of a motor vehicle, on one view, defeats or undermines the intent of the Motor Vehicle Service and Repair Information Sharing Scheme introduced into the CC Act by the Amendment Act. The Tribunal, however, does not have jurisdiction to make the orders sought by the applicant, whether under the CC Act as amended by the Amendment Act, the FT Act or the MDCA Act. The application must be dismissed.